By: Hal Scherz, M.D. & Wayne Oliver, Forbes
A middle age man enters the emergency room with chest pains. The attending physician diagnoses him with indigestion. The physician wants the man to change his diet, take medication and go home.
But due to a worried look on the faces of the patient and his wife, the doctor has second thoughts. Despite his conviction that the diagnosis is correct, the physician orders a battery of tests to rule out a heart attack, and everything is normal. This is called defensive medicine. These tests cost tens of thousands of dollars and though not medically necessary, were obtained to protect the doctor from a potential lawsuit in the event that he missed something.
Defensive medicine is commonplace in medical practice. According to a recent national physicians’ survey by Jackson Healthcare, the nation’s third largest healthcare staffing agency, 75 percent of doctors say that they order more tests, procedures and medicines than are medically necessary in an attempt to avoid lawsuits.
Gallup reports that one in four healthcare dollars spent in healthcare can be attributed to defensive medicine – about $650 billion annually. These costs are passed along to everyone, significantly driving up health insurance premiums, taxes to cover public health insurance programs, co-pays and out of pocket costs.
The problem is likely to get worse under the Affordable Care Act. There will be fewer physicians in the workforce and 30 million more patients with healthcare coverage. The practice of defensive medicine will escalate as more patients are cared for by people who are overworked, and increasingly they are seen in settings such as emergency rooms by people unfamiliar with the patient.
In states such as California, Texas and Massachusetts, where tort reform has been enacted, there has been no decline in the amount of defensive medicine. A study published in the August 2013 edition of Health Affairs found that physicians practice defensive medicine based on perceived risk.
This is consistent with a survey released last winter by Jackson Healthcare that found in Massachusetts, where “Disclosure, Apologize and Early Offer” legislation was recently enacted, 90 percent of doctors reported that they have not changed their practice of defensive medicine. In Texas, 77 percent of doctors said that they have not changed their practice of defensive medicine despite a cap on damages related to pain and suffering.
The only way to eliminate defensive medicine is to make it impossible for doctors to be sued for medical errors.
The Patients’ Compensation System, now under consideration in the Georgia and Florida legislatures, would eliminate the possibility of any physician or hospital ever being sued again. It would repeal our broken medical tort system, replacing it with a no-blame, administrative system which allows a panel of experts to hear medical claims in the event that a patient has been harmed.
Patients’ claims would be heard more quickly and they would be compensated in a manner similar to our current legal system. The system would be funded with current medical liability premiums and would not require a tax increase or use taxpayer dollars to administer. Most importantly, doctors could concentrate on practicing medicine without the fear of being sued, thus eliminating the need to order unnecessary tests.
Currently, very few patients who are harmed are compensated for their loss. A recent report by Emory University scholar Joanna Shepherd-Bailey found that attorneys rarely take cases in which compensation is less than $500,000.
Defensive medicine and the broken malpractice system are two of of the major reasons that healthcare costs are soaring out of control. It’s time to stop just talking about malpractice reform and instead, get to the root of the problem. By replacing our antiquated medical malpractice system with the Patient Compensation System, we will strengthen the doctor-patient relationship and stop hemorrhaging money spent on defensive medicine.
Scherz, FACS, FAAP, is a pediatric urological surgeon at Georgia Urology and Children’s Healthcare of Atlanta. He is president and co-founder of Docs4PatientCare, a national organization dedicated to the preservation of the doctor-patient relationship and working to find sensible solutions to the complex issues related to healthcare. Oliver is executive director of Patients for Fair Compensation, a non-profit promoting the patients compensation system that will eliminate defensive medicine, improve access to justice and promote patient safety.
Read the article in Forbes here.