Lawsuit fear in physicians: Is it real?

    On April 6th I posted sort of a political statement about our broken healthcare system. In that article I mentioned that one of the necessities of healthcare reform is tort reform, because fear of lawsuits is driving up the cost of medical care. This has long been my view, and physicians in general believe this to be true. But is it true? Do the statistics support this view?
     I found in a stack of tear sheets that I had saved the following opinion piece from the American Medical News publication, put out by the American Medical Association. This is a 4 year old article but I truly think the statistics are the same now as in 2010. This editorial was published in the September 13, 2010 issue. There is no author listed so I could not write the author for permission to republish his editorial. Therefore be sure to credit the following quotes if you pass this information on.

Lawsuit chances take a toll:
   "Our actions are influenced even when the odds are in our favor. So we save receipts (IRS audit risk, 1 in 100), change the smoke detector battery (fire-related fatality odds, 1 in 1,235), and think twice about standing in the rain (chance of being struck by lightning, 1 in 6,250).
   "When it comes to the chances physicians face in terms of being sued, a new AMA report shows they can expect a lawsuit not as matter of possibility, but of probability. More than half -- almost 61% -- of physicians older than 55 report having been sued. The behaviors that result from those odds should come as no surprise -- such as defensive medicine and practice decisions to shield the doctor from risk. And those actions can significantly affect the cost of care and patient access.
   "The AMA found that overall, 42.2% of the 5,825 surveyed physicians had been sued, with nearly a quarter of them hit with lawsuits twice or more. Obstetrician-gynecologists were among the most likely to be sued, and the measures they have taken as a result are predictable. In a 2009 survey, nearly a third of ob-gyns reported cutting back on high-risk obstetric patients, one of a number of practice restrictions made in light of liability fears.
  " It's a pattern found in other specialties with a high risk of litigation. A June 1, 2005, Journal of the American medical Association study found that 42% of 824 surveyed physicians in high-liability specialties restricted their practice, including eliminating procedures prone to complications, such as trauma surgery. They also avoided patients who had complex medical problems or were viewed as litigious.
   "All told, the AMA lawsuit study found that 95 medical liability claims were filed for every 100 physicians, based on the doctors surveyed.
  " Yet for all the lawsuits, the AMA noted that the figures should not be taken as an indicator that doctors are making more medical errors. In fact, the Association said physicians prevail 90% of the time when a case goes to trial. Most cases never get that far -- 65% are dropped, dismissed or withdrawn.
  "But the cost of fighting a claim is high. The average cost to defend a case was $22,163 for suits dropped, dismissed, or withdrawn, to more than $100,000 for those that went to court. Add to that the anguish of being sued.
  "Defensive medicine is a well-studied result of the liability pressure on physicians, and doctors have been frank in surveys about the topic. A nationwide Gallup Poll of 462 physicians released in February 2010 found that 73% had practiced defensive medicine, such as ordering additional tests, in the previous year to protect against potential liability. The doctors estimated that 26% of health care costs were related to defensive medicine.
   "The same month, an online survey by Jackson healthcare showed that 92% of doctors practiced defensive medicine. The health care management company survey also found that doctors estimated that 34% of health costs were linked to the practice. A study in the June 28 Archives of Internal Medicine reported a similarly high rate of defensive medicine. And 91% of the 1,231 physicians surveyed by the journal agreed that unnecessary diagnostic tests won't end without protection from unwarranted lawsuits.
   "The AMA has long supported the well-proven tort reform of caps on non economic damage awards, most notably in California and Texas. It continues to push for that fundamental reform at the national and state levels. The AMA is keeping a watchful eye on alternative solutions to the medical liability problem. In June, the Dept, of health and Human Services awarded $25 million in grants to test alternatives such as health courts and early compensation programs. The 20 grants, issued to health systems and states, fund projects that will explore ways to improve physician-patient communication and reduce common medical errors, among other things.
  "The AMA successfully advocated for funding of the demonstration projects. They are a way of increasing the odds that widespread tort reform will become a reality, and that the health care system can operate without the costly burden of a litigation fear factor."

     I can certainly recall my years of practice. I was sued twice. One time it was not a malpractice suite, but rather a defamation suit finding fault with something I wrote in a letter for a patient which referred to the patent's husband. There was a small settlement for that suit. The other suit was a malpractice suit. I was the primary care doctor and my clinic, a gynecologist from the clinic, a radiologist from the clinic, and myself were sued for a mistaken diagnosis. It was a very strange case and involved a mistake made by a previous doctor in which a patient had two IUDs placed at different times and then one and only one removed. We doctors were not aware there was a second IUD which could be causing pelvic pain, even though an xray taken at our clinic did show the second IUD. I recall the anguish just in my case during this lawsuit and I was only peripherally involved in the case.
     In the article above, the brief referral to the anguish that a lawsuit brings is mentioned but not dwelt on. I can vouch that there is indeed anguish. The second guessing that the physician does over and over again, all night long, and intensifying around any legal meetings with the lawyers or around court events such as depositions and court appearances. These thoughts can be mentally paralyzing.  I have often spoken casually with attorney friends and acquaintances. They do not seem to understand this anguish. They say that we physicians should just look at a lawsuit as the 'cost' of doing business. They say we should not take it personally; that we should just go through the legal procedure without feeling that we are under attack. Indeed, I cannot imagine any physician who cares about and for his patients being able to maintain such a distanced and in a way calloused view of lawsuits and their progress. We all take out profession very very seriously and worry about our patients, our care of them and the medical decisions that we make 100 times every day. We worry about making an error, or missing something that we feel we should not have missed. And this worry makes us do all sorts of things to try to make lawsuits not happen.