I haven’t written much about medical malpractice lately because, apart from a couple unique cases, it doesn’t feel like there is anything new to say. Medical malpractice is still responsible for less than one-half of 1% of all United States healthcare costs, and it is still the case that even “hellhole” jurisdictions like Philadelphia are nonetheless still so hostile to patients’ lawsuits that three-quarters of injured patients walk away empty-handed from jury trials. (I would be remiss not to mention this recent study further discrediting the “hellhole” data about Philadelphia’s courts.)

But now I have some good news to report: it seems that many of the major medical societies are moving away from blaming lawyers and lawsuits for every problem under the sun, and are starting to take matters into their own hands to reduce the overall cost of healthcare while still protecting patient safety. The new campaign, “Choosing Wisely,” unveiled this week, was organized by the ABIM Foundation, part of the American Board of Internal Medicine (which has its headquarters only a couple blocks from my office). The ABIM Foundation brought together a number of the major physician specialty societies to come up with lists of five things — typically diagnostic tests — that doctors in each specialty shouldn’t do because they are wasteful and unnecessary.

The part that pleasantly surprises me is how the medical societies have all resisted the urge to trot out the “defensive medicine” line, the claim that doctors wouldn’t do any of these tests if it weren’t for the potential for medical malpractice liability.  See, for example, this NPR story and this JAMA article, neither of which quotes a doctor blaming lawyers for every wasteful practice in medicine.

As I have argued many times before on this blog, I think “defensive medicine” is mostly a bunch of hooey.  Contrary to what you hear from some insurance companies and tort reform organizations, medical malpractice lawsuits don’t impact access to care, and don’t cause doctors to order unnecessary tests. To see why lawsuits don’t result in “defensive medicine” requires a bit more understanding about how malpractice lawsuits work: 

Proving a medical malpractice case, like any professional liability tort, requires the plaintiff prove that (a) the doctor breached the standard of care and (b) that breach caused some harm to the plaintiff. “Harm” is a key practical component there: since no state awards attorneys’ fees to prevailing parties in medical malpractice cases, and thus the lawyers only get paid through the contingent fee portion of a settlement or enforced judgment, the only cases that are worth the risk to lawyers are cases with (a) a good chance at proving to a jury the doctor didn’t do what they were supposed to do and (b) substantial enough damages to justify the expense and risk of the case.

Politicians and insurance PR people like to sweep it under the rug, but malpractice cases are extraordinarily expensive to pursue, because every medical aspect of the case requires an expert witness to support it. Many medical malpractice cases require the plaintiffs’ lawyer pay for multiple physicians, each charging between $300 to $900 an hour, to evaluate and testify about the case.  Right nowm two of my colleagues are trying a birth injury case involving the failure to diagnose Group B Strep in pregnancy, and last I knew, they were calling as expert witnesses more than a half dozen neonatologists, pediatricians, obstetricians, and neurologists, with no guarantee that the plaintiff’s lawyer will recover any of these costs, much less recover any reasonable attorney’s fee.

Because of the expense and difficulty of pursuing medical malpractice cases — and the fact that, thanks to years of tort reform, lobbying and propaganda, the cases are disfavored by judges and juries — these days the only medical malpractice cases worth pursuing are those with large damages.  And that’s where the defensive medicine myth is exposed.

If a test or procedure is truly unnecessary or useless, then the test is not going to help the doctor diagnose or treat any sort of condition. The unnecessary test is thus not going to prevent any major injury to the patient — the damages essential to any successful malpractice case — and thus the unnecessary test won’t actually help the doctor avoid liability.  Put simply, an “unnecessary” test doesn’t do anything to help anyone except, perhaps, the doctor or the hospital performing it, because they charge for the service.

The Choosing Wisely campaign of course hasn’t said they agree with me that defensive medicine isn’t the problem, but they have specifically said that they want more dialogue between physicians and patients to ensure patients choose care that is “supported by evidence, not duplicative of other tests or procedures, free from harm, and truly necessary.”  Their lists of five things physicians and patients should question thus all identify tests that don’t do anything for the doctor or the patient, regardless of any concerns about medical malpractice one way or the other.

I couldn’t be happier with this development. Healthcare costs are rising at an unsustainable rate in this country, but so far, the dialogue over healthcare has focused on only two potential solutions:

  1. denying necessary care to people who can’t afford insurance, or,
  2. slashing away at compensation for the one hundred thousand or more medical malpractice victims every year.

Because the medical malpractice system is so inexpensive compared to healthcare as a whole (remember that number: less than one-half of a penny for every dollar spent on healthcare pays for all lawyers and costs on both sides, plus all compensation for victims), cutting away at compensation for malpractice victims doesn’t actually save any of us much money; it’s just unfair.

Choosing Wisely, however, goes right to the heart of the issue — physicians ordering tests that they don’t know aren’t supported by the medical literature, or which they know don’t help but which make a profit — and seeks to address this problem as a potential solution to rising healthcare costs. The Choosing Wisely campaign says they are continuing to work with other specialty boards to come up with more lists in the future. I hope that over the next few years these types of campaigns will change the conversation in medicine from one of blaming lawyers to one of cleaning up the waste in healthcare.