Although no one knows the exact numbers and percentages, the Congressional Budget Office estimates that the costs of malpractice litigation ran approximately two percent of overall health care costs in 2004. (“Would Tort Reform Make a Difference?” Philadelphia Inquirer, Sept. 13, 2009; www.philly.com/inquirer/world_us/59146082.html.) That percentage may not seem like a large number, but it's not chump change when our nation's annual health care costs are projected by the Centers for Medicare and Medicaid Services to be $2.5 trillion this year and $4.4 trillion by 2018. (National Health Expenditure Projections 2008-2018; www.cms.hhs.gov/NationalHealthExpendData/downloads/proj2008.pdf) The cost of defensive medicine and malpractice litigation lumped together, however, has been cited as a much higher fraction of overall health care: 10 percent. This latter number came from an earlier study that found wasteful defensive medicine in treating older cardiac patients, and extrapolated to other areas of medicine.
The true figure is probably unknowable; practitioners would be hard-pressed to publicly justify ordering any given study on the basis of anything other than direct patient benefit. But does defensive medicine really matter in preventing or winning lawsuits? Some pointers on malpractice avoidance make common sense: Don't include inflammatory, unnecessary comments on the chart, never assume that frequent fliers are not really ill, and always order a timely follow-up on patients, among others. What about the recommendation not to go it alone; some experts recommend. This certainly adds cost and significant time to a patient encounter. In fact, some people routinely suggest making decisions on one's own to enable patient flow, and I am one of them. In a teaching hospital, consults tack on three hours to the patient encounter, so unnecessary ones add cost and detract from value.
Some reports have cited a Congressional Budget Office paper deeming evidence for defensive medicine as “weak and inconclusive.” The claim is that defensive medicine is motivated more by income generation for physicians than by fear of liability, but no correlation has been demonstrated between the medical liability environment and access to emergency care. It is notable from the 2009 American College of Emergency Physicians' National Report Card on the State of Emergency Medicine released earlier this year: Some states rated high on access and abysmal on the liability environment, and vice versa. (www.emreportcard.org)
Some commentators note that our concern should be reimbursement, not defensive medicine. There would be enough money generated to provide actual care if we EPs were paid for what we do. Although there are no data to back up the numbers thrown around, estimates say that physicians lost $4.2 billion in annual revenue providing unreimbursed emergency care. But if that number is accurate, it might be worthwhile comparing it with another one often bandied about, that $4.7 billion was paid in 2008 to resolve all malpractice claims. If we actually collected all our uncollectible fees, we could more than cover our malpractice premiums. We'll never know because that scenario will certainly never play out. No payer is interested in reimbursing EPs more than they currently are.
The underlying issue is that fear of malpractice limits availability to health care. Fear of liability may limit willingness of physicians to enter a given specialty, or it may cause providers to leave one state in favor of another; witness the effect of tort reform in Texas. That state's 2003 tort reform was followed by an influx of emergency physicians in 76 counties, during which time the number of malpractice carriers in the state increased from four to 30. Fear of lawsuits also may impede the ability of hospitals to recruit doctors, and influence where residents choose to practice. Certain reports also have gynecologists in Mississippi and Nevada saying they may drop the obstetrics part of their practice.
There is no doubt that a significant amount of testing goes on that does not directly benefit patient care. If an EP orders a white blood count, will it help prove that the patient did not have appendicitis (or pneumonia or severe cellulitis)? Does it show that he “did something” that at least considered the possibility of a significant disease? Does ordering “belly labs” help justify a discharge in a patient with abdominal pain, and if so, why? What about one set of cardiac markers? Does that show that the EP was thinking of ACS or MI, and ruled it out? Does it show that she doesn't know that one set of markers can't rule out anything? Is it better in court to get a test or not to get a test?
These may seem like silly existential questions, but the fact remains that EPs get sued for failing to make or to consider diagnoses. The temptation is to draw a conclusion that one more image, one more lab test, or one more consultation would have saved the day. It is undoubtedly better to be right.
If one accepts the claim that defensive medicine costs $300 billion per year, it is easy to extrapolate that this sum could cover health care for the 46 million uninsured in the United States.
On the other hand, it is foolish to assume that any degree of tort reform will make unnecessary testing go away. Doctors will continue to practice so they feel comfortable unless they are penalized in some other way for practicing expensive medicine.
It is difficult to have a rational discussion on malpractice when there are still outrageous eight-figure awards being paid. When medical malpractice firms boast about $60 million awards after a bad result from a thigh lift, they do a disservice to all personal injury lawyers. Suits such as these become poster children for what has gone amok in our tort system.
Malpractice and the fear of it almost certainly affect access to care. The irony is that it may affect society's disenfranchised the most. EPs know that many patients cost money in malpractice and billing costs just by walking in the door, without any hope for reimbursement. Consultants might be much more willing to provide pro bono services if they were not at risk for malpractice suits.