My initial reaction to a New York Times article A Fear of Lawsuits Really Does Seem to Result in Extra Medical Tests was viscerally emotional. The article highlights a recent study that sheds light on the existence and costs associated with the practice of defensive medicine. I am a practicing general surgeon who has drunk from the malpractice litigation sewer once in my career. So, after spitting out my initial thoughts of “who needs a think-tank paper funded by taxpayer dollars to state the obvious,” I calmed down and read the 52-page paper. The “Defensive Medicine: Evidence From Military Immunity” is the offspring of Messiers Michael Frakes and Jonathan Gruber of the National Bureau of Economic Research. The academic authors (one, a Duke University lawyer and the other, an MIT health economist) have never taken care of a single patient in their careers. The authors used data from military and civilian hospitals to try to answer the question, “will doctors practice medicine differently if they know with greater certainty they cannot be sued?”
Since 1950, federal law has prohibited active duty military personnel from suing their active duty physicians or the federal government for negligence. However, this law does not prevent active duty civilian family members treated by military physicians or active duty personnel treated by civilian doctors from suing. The authors used this law as the basis for their thesis, surmising that because military physicians are immune from the fear of medical liability, they will “substantially reduce their treatment intensity,” when treating active duty personnel versus civilian family members.
Their conclusion after analyzing data from over two million inpatient encounters (at both military and civilian hospitals): “active duty patients received less intensive health care to the tune of 4–5% than the liability civilian group without affecting patient outcomes. This provides evidence consistent with a story which the removal of malpractice pressure substantially reduces treatment intensity in patient care.”
My first thought was, “is that all?” Intuitively, that number should have been higher.
As a former active duty military surgeon, my opinion is that the study design is flawed on several levels. First of all, I had no idea I was immune to malpractice litigation during my time as an active duty military surgeon. I suspect I am not alone here. Second of all, even if I did know, I sincerely doubt it would have influenced how I practiced general surgery in the military. If it did, I would have considered myself, and anyone else, a flawed surgeon. Back then, I practiced general surgery the way I was trained to. Today, I practice general surgery the way I was trained to. The only difference now is I have a mental library stocked with twenty plus years of experience and mistakes to learn from.
There is another issue that create cracks in the study’s foundation: Active duty members are healthier than the general public and intuitively need less diagnostic testing. This makes the sample population unreliable. In addition, many physicians in the military are young –– fresh out of training. They often do not have the confidence and experience to totally rely on their own clinical judgment. I know I felt unsure of myself some twenty-five years ago.
The major fundamental problem I have with the paper lies in my question: “How can the authors assume, without getting inside the mind of the physician at the very moment a decision is made, why he or she ordered that test or performed that procedure?” How can the authors attribute this “increased treatment intensity” directly to the “fear” of being sued without asking the physician directly in real time? This assumption is what really insults me as a practicing surgeon. To me, the practice of medicine is a clinical art painted on the canvas of science. There is so much human variability in the way physicians practice today. Maybe this variability is part of another problem altogether. It is variability rooted in many factors; factors related to training, experience, patient population, employment pressures to produce, diminishing time to interact with patients (thank you EMR), business relationships, and even a previous experience with the medical tort system.
I do give the authors credit, however, for acknowledging deep in the bowels of the paper the fact that “physician behavior is likely shaped by a range of forces beyond medical liability fears.” Now that statement tells me they know when to cover their own asses.
In closing, I would like to address the “fear of getting sued.” I believe physicians do not inherently fear getting sued in the event of a bad outcome or missed diagnosis. Deep in our very souls, we are healers. When a patient is harmed by a decision or a postoperative complication, my first thoughts are to explain the situation, apologize, and make things right. Anything that comes afterward is beyond my control. I am not perfect. Unexpected bad outcomes are part of the job. The problem is the tort system, when applied to the practice of medicine, has no tolerance for imperfection even when the standard of care has been met. This needs to be changed.
What I do fear is the loss of control in the current system once the momentum of a lawsuit begins to churn. As it stands, physicians are not judged by a jury of their peers but by a jury of lawyers and malpractice insurance company administrators. This too needs to be changed.
In retrospect, I was fortunate to be involved in a lawsuit early on in my career. I say fortunate because it was an early lesson in the risks I would be facing every time I step into the operating room. I doubt Messiers Frakes and Gruber face the same risks every time they step into a classroom.
Paul A. Ruggieri, MD, FACS is a practicing general surgeon in Massachusetts and author of the book, “Confessions of a Surgeon: The Good, the Bad, and the Complicated. Life Behind the O.R. Doors.” He is a 2018–2019 Doximity Author.