On zebras

Asks chum and fellow LOOG blogger Burt:

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  I’ve had some kind of contact with many cases where a patient has received sloppy, outdated or simply wrong medical care.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.

Russell Saunders

Russell Saunders is the ridiculously flimsy pseudonym of a pediatrician in New England. He has a husband, three sons, daughter, cat and dog, though not in that order. He enjoys reading, running and cooking. He can be contacted at blindeddoc using his Gmail account. Twitter types can follow him @russellsaunder1.


  1. Thanks for taking on my topic.

    By “reform,” I typically mean some combination of a) setting higher evidentiary bars for plaintiffs to prevail in a lawsuit and b) reducing the amount of money plaintiffs recover if they prevail.

    My impression of the above is that the primary pressure is the concern about being sued at all, but that’s just part of what it is to practice and at some point the doctor simply has to have to have faith that the legal system will distinguish between a serious doctor error, an honest mistake, and a simply disgruntled patient. Unless we abolish med-mal completely, it seems that reform (as least as I have intended that phrase) won’t alleviate that anxiety.

    With regards to the regional differential concern you’ve raised, at least some states have laws that attempt to take the issues of geography and available support (equipment, facilities, specialists, transportation) into account. I know that California’s corpus of med-mal law is explicit about this, and I’m pretty confident that the law in all 50 states is such that treatment need only be reasonable rather than optimal in order to not be subject to tort liability.

    • I know I didn’t really tackle “reform” in the way you meant it, and focused more on what it feels like to practice with the threat always vaguely looking. Part of this stems from my knowing that the evidentiary bar for med mal is actually pretty high. I also know that insurance carriers often decide to settle rather than fight cases that could actually have been won, and that insurers and insured aren’t always 100% on the same side of that question.

      One thing that occurred to me since composing this post and that I think bears reform is what seems a “shotgun” approach to lawsuits. By way of illustration, I was friendly with an OB resident when I was a medical student, and I happened to be in his company when he was served with papers naming his as a defendant in a med mal case. His relationship to the patient was tangential; he had been cross-covering another service during whatever their interaction was, and his impact on the patient’s management had been minimal. But pretty much everyone whose name appeared in the chart got served. Even though he was likely to get dropped from the suit it 1) was still deeply disheartening for a young physician right at the start of his career, and 2) became something that he will always have to disclose and fully document with every application for licensure or hospital privileges, in seacula seaculorum , thus hampering future career development (albeit not fatally). If there were a way to limiting defendants to those whose decisions had a material impact on the clinical outcome, it strikes me as a meritorious endeavor.

      And I think more could be done to protect providers in underserved areas. It doesn’t seem all that comforting to hope that a jury will understand the difference between “reasonable” and “optimal,” with the plaintiff’s attorney trying to blur the line. So Dr. X makes a clinical decision that a cardiologist would never make, resulting in an adverse outcome. Was making the wrong decision reasonable or unreasonable? It becomes the jury’s call. If he’d been practicing in greater Boston, he’d never have been in a position to make the call in the first place, but he’s chosen to practice in Montana. I happen to think it’s in Montana’s interest to offer providers additional malpractice coverage beyond what their employer provides, or raising the evidentiary bar a titch.

  2. I thought I would pass along something I wrote a while back in a comment on Hit Coffee:

    The thing is… people make mistakes. All people in all jobs. The damages these mistakes incur are typically more contingent on the nature of the person’s job rather than the egregiousness of the error.

    I’ve made mistakes in the past. Not just probably-couldn’t-have-known-without-hindsight mistakes, but genuine mistakes. Times when I wasn’t focusing or just plum forgot to do something or check something. The difference between this, and when a doctor makes a mistake, is that my errors generally have minimal impact. Doctors, by nature of their work, are more likely than all but a very few to have mistakes with significantly higher impact.

    This makes them liability magnets. This means that a mistake of the nature you or I may make every day incurs damages on a much larger scale. Now, we can argue “because their job is so much more important, they shouldn’t make mistakes!” but that’s simply not reasonable. So in a sense, we’re suggesting that if they have a problem with it, they should choose a line of work where their actions (and therefore their mistakes) matter less. I don’t want people going into safer professions and specialties and dodging obstetrics and ER medicine on the basis that if they end up treating cases where a mistake is more likely going to end up in death or high injury they harbor responsibility that they can dodge by playing it safer.

    There are really limits to the degree you can say “If you make a mistake, and the mistake incurs serious damages, you’re on the hook” as a motivation for the prevention of mistakes. The result is a culture of fear, waiting for that one mistake to have that bad result (this is if they have faith that they won’t get tagged for a non-mistake), stocking up paperwork and test after test so when the hammer does fall, they can minimize their liability. And this is on top of the heartwrenching guilt that the more conscientious among them will feel.

    I don’t begrudge those who have been injured getting their due. I don’t really know the best way of determining how to go about doing this. But even prior to meeting Clancy, I viewed the medical profession as a different brand of tort due to the inherently risky nature of the business as well as the fact that they (unlike, say, a bungee-jumping theme park) are a vital component of society even when they are imperfect.

  3. Again, I’m wondering why it’s just assumed that doctors practice in their own person, rather than as employees of a larger entity (which takes the liability risk on itself.)

    If the mechanic down at Jiffy Lube forgets to put the drain plug back in and my transmission explodes on I-95, I don’t sue the mechanic personally; I sue Jiffy Lube Incorporated. And, sure, maybe the mechanic gets fired over it, but he isn’t the defendant in “DensityDuck’s Severed Head Floating In A Jar vs. Jiffy Lube Incorporated”.

    • Because in medmal cases, people sue the hospital and the doctor, even if the doctor works is an employee of the hospital.

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