"The Effects of Defensive Medicine on Health Care and What We Can Do about It" by Alan C. Woodward, MD

The results of a first-of-its kind survey of Massachusetts physicians about the practice of “defensive medicine” — tests, imaging, hospitalizations, referrals and consultations ordered by physicians out of the fear of being sued — should capture the attention of everyone concerned about health care and its costs in the Commonwealth.

Conducted and sponsored by the Massachusetts Medical Society, the Investigation of Defensive Medicine in Massachusetts has shown that the practice is widespread, adds billions of dollars to health care costs, reduces access to care, and may be unsafe for patients.

The study, which conservatively estimates a portion of these defensive practices to cost a minimum of $1.4 billion annually in the state, is the first to specifically quantify defensive practices across a wide spectrum and among a number of specialties and the first to link such data directly with Medicare cost data.

The findings are consistent with a smaller 2002 study by Common Good, a non-profit, non-partisan legal reform coalition, that reported nearly all physicians and hospital administrators feel that unnecessary or excessive care is often or sometimes provided because of the fear of litigation.

The survey found that 83 percent of physicians reported practicing defensive medicine and that an average of 18-28 percent of tests, procedures, referrals and consultations and 13 percent of hospitalizations were ordered for defensive reasons.

But that’s only part of the story.

The survey included physicians in just eight specialties, accounting for only 46 percent of the physicians in the state. The cost estimates don’t include defensive practices ordered by physicians in other specialties and do not include observation admissions to hospitals, specialty referrals and consultations, or unnecessary prescriptions. Thus, the real cost is likely several billion dollars.

The implications of defensive medicine, however, go far beyond costs. Defensive medicine restrains access to care, as physicians decline to perform high-risk procedures and avoid caring for high-risk patients. According to the survey, 38 percent of physicians have reduced the number of high-risk services they performed and 28 percent have reduced the number of high-risk patients they serve. This confirms the results from previous studies: Over a five-year period, medical society workforce surveys have consistently seen an average of 44-48 percent of physicians say they alter or limit services out of the fear of being sued.

Defensive medicine also raises safety issues: patients exposed to unneeded imaging tests face the risks of radiation exposure, and many surgical procedures like Caesarean sections have increased because of liability concerns.

The conclusions are clear: defensive medicine is expensive, reduces access, and poses unnecessary risks for patients. But because the fear of litigation is so pervasive, the practice remains a widespread. The potentially dire economic, personal, and professional consequences that may result from a lawsuit are simply too great for physicians to leave to chance.

The Commonwealth has become the model for the nation with its health care reform. Yet the irony is that as we continue to struggle with exploding expense – which most experts agree is the single biggest threat to the success of health care reform – we continue to spend billions on defensive medicine.

Reducing and even (in the best of all possible worlds) eliminating the practice of defensive medicine would significantly curtail our overuse of resources and unnecessary spending. Such a goal should be high on everyone’s list of health care priorities.

This goal will only be achieved, however, with a much-needed, long overdue reform of the medical liability system. Physicians practice defensive medicine because they don’t trust the system, regarded by many to be dysfunctional for both patients and physicians, and one that breeds secrecy and mistrust and impedes safety efforts.

A fundamental transformation is needed. One model, such as the one proposed by The Joint Commission, enhances patient safety; encourages open communication, full disclosure and transparency; offers sincere apology for avoidable injuries with timely and fair compensation, and resolves disputes with mediation and arbitration. Lawsuits should be a last resort. This model is efficient, timely, equitable, and encourages evidence-based medicine rather than defensive medicine.

Results of this survey should provide a strong impetus for legislative, business, and health care industry initiatives for fundamental liability reform. The physicians of the Commonwealth are sending a strong message. Government and health care industry leaders must ask: Are we willing to listen and begin a dialogue for reform? Or are we content with continued dysfunction, eroding trust, and soaring costs?

Alan C. Woodward, M.D., is a past president of the Massachusetts Medical Society and Vice Chair of its Committee on Professional Liability.