Would reform of medical malpractice laws alter the practice of medicine, and if so, for good or ill? Granted you’re affiliated with a large institution so you may feel the impact of that topic differently than does a solo or private practitioner. Still, does the issue of liabilty arise in any significant way and if so, do you experience it as a deterrent or other factor you have in mind when rendering care to patients — or perhaps more likely in a big institutional situation, does the administration do things to intervene in your practice that seem to be motivated by liability concerns?
There’s a lot that goes into answering this, so I apologize in advance if I start rambling. (On that note, I planned to head in the direction you suggested when I read Burt’s question, Density Duck.) I’ll start by clarifying that the large institutions where I am an attending physician have very little impact on how I address liability concerns. While I am on their staffs, my primary practice is in a private office. I think we can leave it at that.
I also want to recognize at the outset that there is a lot of bad medicine out there. I’ve had some kind of contact with many cases where a patient has received sloppy, outdated or simply wrong medical care. (Just to head off any glib conjectures, in none of these cases am I referring to the care I delivered. Also, in almost all of these cases the patients did just fine despite the flaws in their care.) There’s an old joke about what you call the person who graduates last in their class in medical school. (Answer: “doctor.”) Medicine is not immune to laziness or stupidity among its professionals, though the medical community tries very hard to minimize this risk. And even brilliant, conscientious physicians make mistakes. Believing ourselves to be incapable of error only leads to the god complex associated (accurately, far too often) with doctors. This attitude only contributes to the problem.
So, having said all of that, let me talk a little bit about the process we’re taught to use when we make decisions about our patients. When we see someone for a medical problem, we take a history and we perform an exam. With this information, we try to come up with what’s called a “differential diagnosis,” or DDx for short. This is a list of all the possible diagnoses that might explain the patient’s signs and symptoms. Formulating a good DDx is what makes a good diagnostician, and whenever patients are discussed in a teaching setting invariably the conversation turns toward it.
There’s a saying that’s common in medical training — “when you hear hoofbeats, don’t go looking for zebras.” In other words, a common finding almost always has a common cause. When discussing a patient’s DDx, the most likely, common answers are typically listed at the top. Then we get around to considering “zebras,” those diagnoses that are rare, obscure or exotic. Those usually go at the bottom, and don’t get further consideration unless the common things at the top are ruled out and there still isn’t a good answer. When choosing which tests to order and treatments to try, we look at the top of the list and work downward if we have to.
So, what does this have to do with medical malpractice? It has to do with how far down one goes on that DDx with any given patient. For the overwhelming majority of my patients, I need only concern myself with the very top. The symptoms are straightforward and the most likely diagnosis is some common ailment or another. After some brief explanation, the patient leaves (sometimes with a prescription, sometimes not) and there’s a satisfactory conclusion.
However, what about a particularly anxious patient or parent? Even if the vast majority of patients with fever, fatigue and malaise have something benign like a viral infection, somewhere out there is the patient who has something more dire. What if this seemingly-common illness is really some zebra? How quickly can I dismiss those diseases at the bottom of the list? If every patient with a fever, aches and pains got blood tests to rule out more serious illness, it would contribute needlessly to the already-burgeoning costs of healthcare in this country. If every patient with greenish nasal discharge got antibiotics (and far too many get them for such symptoms as it is), the medications will work less well than they already do. But what if this frustrated mom leaves angry? What is this is that one case where there really was something serious going on? What if? What if?
It’s that little nagging worry that maybe means I over-treat a little here, or order a test I don’t think is all that necessary over there. And taken on a case-by-case basis, this is really not that big of a problem. One extra prescription for amoxicillin or CBC order isn’t going to make a big difference. But these little decisions add up over time, and contribute in some hard-to-define way to our crippling healthcare crisis in this country. Plus, it is simply hard work to explain why you’re not doing what a worried parent is just sure will fix or explain their sick child’s illness, and any seasoned medical provider knows when a patient or parent has left mad. I’ve attended enough seminars about medical liability to know that people are much less apt to sue doctors they like, even when they do err, and it always makes me uneasy when I know they don’t like me on their way out the door. How much should I be willing to placate an angry parent if it means I’ll sleep better at night? How many tests do I order, just in case, so I can gesture toward them and say “See? I took this seriously!” should I end up in court?
As I search around for a piece of wood upon which to knock vigorously, I will say that I’ve never been sued for malpractice. However, I have had someone complain about me to my (then-) state’s board of licensure for an incredibly frivolous reason, simply because she didn’t like me. (The complaint was dismissed at the board’s earliest opportunity. Even so, I must now report the complaint and document its resolution whenever I apply for privileges at any new hospital, which is tedious in the extreme.) I learned that even the most seemingly trivial encounter can have unforeseen ramifications. This low, murmuring thrum is at the back of every patient encounter I have every day. I would gladly be rid of it.
What does this mean with regard to malpractice reform? For those of you who’ve stuck with me through such a long post (thanks!), I’m sorry to say that I don’t really know. Patients must be protected against incompetent, fraudulent or indifferent providers. There must be legal redress when there are genuine harms done. I also know that, for all my worry, it’s actually a pretty high bar to hit in order to win a medical malpractice lawsuit. But even a lawsuit I win would take a heavy toll on my psyche and my job satisfaction (and would complicate any future job opportunities). I work hard to be a good doctor, and it would be devastating to wind up as a defendant because I made an honest error or alienated the wrong parent despite my very best efforts.
I do have one idea for how medical malpractice should be reformed, however. It has to do with providers who choose to practice in underserved areas. (I used to be one such doctor.) This country has areas of physician supersaturation, and areas in just about every state where there hardly any providers at all. I am aware of financial incentives for working in such an area, but I think there should be legal ones, as well. A doctor who works in East Jesus, Iowa is probably exposed to much, much higher liability than one who works around the corner from MassGeneral or Cedars-Sinai. Let’s say Dr. X is a family practitioner who has a small private (or hospital-owned) practice, and the nearest tertiary referral center is two hours away. His patients are poor, and the costs of driving those miles are prohibitive in most circumstances. It’s a six-month wait to see a specialist, anyhow. This means either Dr. X’s patients don’t get care for more complicated problems, or Dr. X decides to treat them himself. He might prescribe antidepressants for his severely depressed patients, despite not being a psychiatrist and the risks of doing so. His job might require that he attend certain higher-risk deliveries, despite not being a neonatologist. Maybe he also has to cover the local community hospital’s emergency department, even though he is a specialist in neither emergency medicine nor critical care. So his depressed patient commits suicide, or the premature infant dies before she can be transported to the nearest NICU, or the patient with unstable angina goes into a fatal dysrhythmia. The family is distraught and angry, and are looking for someone to blame. Maybe Dr. X made an error, or maybe he was in over his head. One might argue that Dr. X shouldn’t have been treating these patients, but if not Dr. X then nobody.
I believe there should be some protection for providers who are working in underserved areas and are providing care that would otherwise be absent. I am not aware of any legal protections for people who choose to practice in such areas, though I’m sure it varies by state and there may be more than I know. While it’s important to craft policy that wouldn’t allow doctors to act like cowboys and take unnecessary risks, it’s also important to give providers a safety net when they are choosing to locate in an area desperate for providers. What this would look like exactly is a job for someone with more policy chops than me. Suffice it to say that there should be more protection for doctors who serve patients who really need them in these areas than currently exists.