It is an article of faith among many physicians that the threat of malpractice suits is behind rising health care costs. "How can we be expected to 'bend the cost curve' when we are under constant threat of being sued?" said one internist to me at last week's ACP South Dakota chapter meeting.
There is no question physicians are under a constant threat of being sued. A new AMA study finds that by age 55, 61% of physicians have been sued at least once. For general internal medicine physicians, it was 58.3%; for IM subspecialists, 57.6%; for general surgeons, a whopping 89.8% percent.
One might expect that physicians in states that have caps on non-economic damages would be less worried. Not so, according to another new study by the Center for Studying Health System Change. The Center found that "Even in states with economic damage caps in malpractice suits, physicians remain highly concerned about being sued, suggesting that many popular tort reform proposals may do little to deter the practice of defensive medicine that contributes to unnecessary health spending." The authors raise the possibility "that physicians' level of concern reflects a common tendency to overestimate the likelihood of 'dread risks'--rare but devastating outcomes--not an accurate assessment of actual risk ... Whether justified or not, physicians' liability fears are a policy problem because defensive medicine raises health care costs and potentially subjects patients to unnecessary care."
But how much does defensive medicine really contribute to health care costs? Kaiser Health News reports on a new Health Affairs study that finds that the cost is tens of billions per year--but not as much as many believe. "The total cost of medical malpractice-related costs to the health care system, including defensive medicine, is about $55.6 billion per year, or about 2.4 percent of annual health care spending. Defensive medicine is about 80 percent of that total, the researchers found."
The finding that the costs of defensive medicine are a relatively small contributor to costs does not mean the system shouldn’t be reformed, say the authors. "We're spending a very large amount of money every year on a system that's deeply flawed," said Michelle Melo of the Harvard School of Public Health. "Many injured patients never get compensated at all, and many patients sue who are not really victims of medical negligence."
My own view is that it is almost impossible to get a reliable estimate of how much defensive medicine costs the United States in dollars and cents. But when physicians worry constantly about being sued, when most end up getting sued at least once during their career, when patients who are victims of negligence never see any compensation, while others who weren’t harmed by negligence bring suits that aren’t warranted, when patients are exposed to unnecessary procedures because of physicians’ concerns about being sued, when the amount of an award depends more on where you live, the whims of a particular jury, and the quality of your legal representation--not the merits of the case, and when the U.S. spends "a very large sum of money on a system that is deeply flawed"--well, the system is broken, and must be fixed. I also think we need to broaden our thinking beyond the question of to cap or not to cap, since even in states with caps physicians worry about being sued. Caps, after all, limit how much is paid out if a physician is found to be negligent under a flawed tort system, but they don't keep such unwarranted cases out of the tort system in the first place. We need to consider ideas like health courts, no-fault, and other alternatives to the adversarial, confidence-sapping, unpredictable and unfair (to both doctors and patients) medical liability roulette created by our current tort system.
Today's question: What is your reaction to the new studies on medical liability reform?