I've already had a few blogs about medical malpractice reform (Part 1 and Part 2). And if you've read them, you know I am a big supporter of completely altering how patient complaints against physicians are handled. Not just for the benefit of the doctor, but because the current system is not so great for the patient either.

No longer is a patient a sick person with a sacred relationship with their physcian. They are now "Consumers of healthcare." And fear of retribution by those consumers prevents doctors from making sound judgments on patient care. Doctors are tired of attempting to educate patients on best practice, when not getting their demand will lead to an unhappy consumer. And all doctors know that unhappy consumers like to sue if there is a bad outcome (statistically probable adverse events that are not malpractice).


I read over and over how either defensive medicine does not exist, or that it is actually a good thing (just recently saw a tweet to this effect). These are usually medical malpractice attorneys. They have convinced themselves that they are policing the bad doctors and are helping to produce more careful, compassionate, higher quality physicians.

The only part I agree with is the careful part. Docs take care to make sure every contingency is addressed. While that might sound good, it is not. Here's why:
  • In medical classes like CME, doctors are often taught the right way and the defensible way to treat a given patient. These are often very different. For instance, the right way to treat a simple ear infection, based on the latest pediatric guidelines is NOT to use antibiotics. However, an untreated infection that leads to a rare complication such as Mastoiditis could likely lead to a malpractice suit.
  • Therefore, the defensible way to treat this situation would be to give antibiotics. The implications of taking unnecessary antibiotics seem minuscule to the patient, however, it leads to grave problems in the future on a personal and societal level when those antibiotics become resistant to infections. In a word: CA-MRSA (Community Acquired Methicillin Resistant Staph Aureus) which is what causes those huge painful boils that pop up and lead to sepsis if they are not addressed.
  • If a patient wants an x-ray or a CT they don't need, they get it. Because juries don't penalizing for doing extra, but for not doing enough. However, a brand new study by the NEJM shows that those tests that we do on patients give dangerously high radiation doses. Especially bad as a cumulative effect over time. This can lead to many kinds of cancers; one study estimated 1 in 10,000 pts will get thyroid cancer from a CT scan.
  • The funny thing about tests is that many are equivocal, meaning, they didn't give a definitive answer and the recommendation is to do another test. So tests often lead to more tests. And before you know it, that innocent CT you did "just to be safe" leads to renal failure from the IV dye you received, throwing you into congestive heart failure and leading to even more problems. The book "The House of G-d" espouses less is more for healthier patients for this very reason.

While I definitely think we need tort reform for the many reasons I detailed in my last two blogs, I think it is unrealistic to assume that physician behavior will change overnight. If comprehensive tort reform that screened out frivolous cases before they even became a lawsuit were enacted tomorrow, it would be at least five years before any change in defensive medicine practices were noticed. And much of that would be because of newly graduating physicians practicing in a less litiginous environment.

Look at the poor adoption of IT by physicians. A much less controversial topic. And look at how hard it is to change the behavior of physicians who use paper and like it that way. Changing something like defensive medicine will be doubly or triply (word?) challenging.

In the course of my psychology studies, I learned about Maslow's hierarchy of needs, which explains really well the motivations of physicians and why they regress from idealistic doctors to self-doubting defensive medicine practices.

In this theory, human beings are motivated by unsatisfied needs, with the lower, more basic needs having to be satsified before the higher, more selfless needs can be actualized. The first four needs are the deficiency needs: psychological (e.g. breathing, food, water), safety (security of body, resources, employment), social (working as a team, sense of community), and esteem (confidence, respect by others). Under stressful conditions, people can regress to lower levels, and Maslow postulated that if you have significant problems somewhere along the hierarchy, you may fixate on these needs for the rest of your life.

This model explains physician behavior very well. Physicians who are sued will likely suffer a breakdown in the second stage of the need for safety and security. They will enact asset protection plans, increase their insurance limits, and suffer extreme anxiety at the thought of losing everything. They may obsess about maximizing reimbursement. At this point, the physician's priorities change to the lower needs. And as long as they continue to regress away from self-actualization, they will look at life differently than before. They will practice medicine differently than before. They will abandon their intuition and their compassion. Their altruistic practice of medicine will cease to be a motivating factor until the physician is able to reconcile these fears.

Those that manage their safety need can still be stuck in one of the next levels of motivation. It is here where the practice of defensive medicine begins to be ingrained; from either a lack of trust of their colleagues, team, or patient (social need), or from a lack of trust in their own abilities (esteem need). Regardless, once fixated on these deficiencies, it is hard to break free to advance to a point where your sole interest is in taking care of the patient.

And if you are one of the rare doctors who can overcome all of this to be a completely selfless compassionate physician, you can become extremely frustrated when forces outside of your control (e.g. administrators or HMOs) demand that you practice in a manner that conflicts with your high ideals. These excellent physicians typically retire early, or limit their practice, while those in the lower needs continue to practice in their regressive fashion.

The current system selects for those physicians who can adapt to the system, not for the physicians who can overcome it. It's all darwin. Survival of the fittest. Darwin didn't have a place for compassion.

My solution? We should have tort reform. But we have to be realistic. It will take at least five years (probably ten) after med mal reform before a significant dent in the 100-200 billion dollar a year of costs that occur from defensive medicine.