Error on the Side of No One

From the New York Times to the editorial page of every local paper in the country, we’ve all witnessed the range of opinions on medical malpractice lawsuits. The notion that malpractice lawsuits are responsible for a significant portion of the cost of health care has largely been put to rest, but still conservatives rail against large jury awards while liberals tend to side with the aggrieved (those of us with views that fall outside that paradigm are absent from mainstream media). Lately, however, coverage has begun to focus not so much on the lawsuits themselves as on the fear of lawsuits. Apparently, the fear of getting sued can lead doctors to order unnecessary tests just to cover their behinds. This is called defensive medicine and many argue it is driving up the cost of health care significantly.

(I suspect patients are also practicing defensive medicine. Back when I had good health insurance, if a doctor suggested a test I almost always said yes because I really had no idea how long I’d have access to health care. If they find something wrong with me on a day that I am insured, that is much better than finding it on a day down the road when I’m not insured.)

Are doctors really so afraid of large jury awards? After all, they do have malpractice insurance that pays out for them, and most medical mistakes go completely unpunished anyway. According to one recent article in the New York Times, the fear that motivates doctors is not only nor even primarily monetary. Rather, reporter David Leonhardt argues, the fear has to do being called out publicly and perhaps wrongly. Doctors’ reputations may be sullied even if they win a lawsuit. Thus, they order tests or procedures they don’t believe the patient really needs just so they can make a case seem unwinnable before it starts.

The piece of this that I find so disheartening is that you never hear doctors quoted as saying, “I order extra tests because I want to make absolutely certain that no patient dies or suffers due to neglect on my part.” Instead, the death or suffering seems to only be the intermediary step leading to a lawsuit, which is the thing that creates the fear. I realize that the overwhelming majority of doctors do care on some level about their patient’s health, but if the news coverage is to be believed, they seem to care about lawsuits even more. After all, if a doctor refuses to order a test she or he believes to be unnecessary and the patient turns out to be just fine, then the patient will not sue. On the other hand, if a doctor refuses to order a test that she or he wrongly believes to be unnecessary, that is when a patient will sue. Patients will sue because they suffered harm or their families will sue if the patient is dead or incapacitated as a result of that harm.

This is not to say that all those extra tests are a good thing or that every lawsuit has the right target. But rather than target malpractice itself, I would like to see the medical community turn its attention to enormous problem of medical error. According to a recent report by the Robert Wood Johnson Foundation, patients in the United States fare much worse than in many European nations when it comes to being given wrong medication, receiving inaccurate or untimely information about their condition, or suffering other medical error. Clearly, we have much room for improvement. Reducing medical error is the one way that doctors can improve their ability to be protected from lawsuits without harming patients or driving up the cost of health care.

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