February 21 , 2011
Contact: Joanne Doroshow
The Center for Justice & Democracy today released excerpts from a working draft of a comprehensive new article that critiques the existence of so-called “defensive medicine.” The article was written by Fred Hyde, M.D., Clinical Professor in the Department of Health Policy and Management at Columbia University’s Mailman School of Public Health. Dr. Hyde, who holds medical and law degrees from Yale and an MBA from Columbia, has consulted for hospitals, physicians, and others interested in the business of medicine.
The article seeks to examine the relationship between so-called "tort reform" and "health reform," the Patient Protection and Affordable Care Act.
While the article, which was funded by a grant from CJ&D, will be submitted for publication, Dr. Hyde has permitted CJ&D to release excerpts now to help inform the debate over medical malpractice issues, particularly as attacks on the legal rights of injured patients continue at both the federal and state levels.
He writes, "Authorities debate whether defensive medicine is a significant or insignificant part of the cost of medical negligence and professional liability insurance [and asks] What impact can be expected on 'defensive medicine' from the various standard-setting mechanisms of the American Reinvestment & Recovery Act (ARRA) and the Patient Protection and Affordable Care Act (PPACA)?"
Dr. Hyde notes, “’Defensive medicine’ by all scholarly reviews has become a myth, a combination of surveys of interested parties and the ‘imagination’ that those parties are avoiding--or believe they are avoiding—liability through alteration of their medical practices.” He writes, “The costs, if any, of defensive medicine, are trivial, in comparison to the medical and social costs of negligence.” Moreover, medical liability “Acts as a guardian against undertreatment, the primary concern which should now be facing policy-makers” under PPACA. And, “If tort reform reduces or even eliminates sanctions associated with negligent care, adverse events themselves may increase, and at a far greater cost than the various estimates of the cost of defensive medicine.”
The following are additional excerpts from Dr. Hyde’s February 2011 working draft, entitled “Defensive Medicine: A Continuing Issue in Professional Liability and Patient Safety Discussions; Is There a Role for ACOs, CER, PCORI and 'Health Reform' in 'Tort Reform'?”:
“The implicit hypothesis [of those accepting the existence of defensive medicine] would appear to be the following: That, in contravention of good medical judgment and the basic rules of Medicare (payment only for services that are medically necessary), physicians will, as a group, act in ways which are contrary to the interests of their patients, hoping that excessive or unnecessary prescribing and referring will insulate them from medical liability. This theory goes on: physicians will subject patients to unnecessary CT scans and unnecessary radiation, and will claim reimbursement falsely, and will then "check a box" to indicate they were engaged in "defensive medicine." There is little, if any, objective evidence to support this poor judgment of physicians.
“The import of the phrase ‘defensive medicine’ is in its ‘political’ or strategic use: It is an argument for tort reform when, in years such as we now enjoy, insurance profits are high and the air of crisis is abated. . . The methods used to study the existence, prevalence and impact of defensive medicine have been, primarily, survey of those (practicing physicians) who may be perceived as having a position or stance in the political discussion, in addition to having access to information necessary to answer the questions posed above.
“The fee for service system both empowers and encourages physicians to practice very low risk medicine. Health care reform may change financial incentives toward doing fewer rather than more tests and procedures. If that happens, concerns about malpractice liability may act to check potential tendencies to provide too few services.
“If most claims result from errors, and most errors result in injuries, and most injuries resulting from such errors result in compensation (73%), what is at stake in limiting access to the courts? If access is limited, it would be in recognition that the basic principle of civil justice, having a remedy available to enforce a right, is void.”
With regard to PPACA and "health reform," Dr. Hyde concludes:
What goes on in the physician's office? Are physicians ordering diagnostic tests because they are trying to do the best job possible for their patients? Are they ordering tests because they have a financial interest in the testing apparatus? Are they ordering tests because they believe that, without those tests, they--the physicians--are exposed to a finding of negligence?
In the “reform” of our health system, a variety of new federal organizations, each with suitable cost-containment responsibility, acronyms and budgets, have been created, or conceived. The question is, with regard to the avoidance of risk and/or any unnecessary expense associated with defensive medicine, will any of these organizations help? . . . To the contrary, the extraordinary growth in bureaucracy, the centralization of control and the denial of patient-based variability, may further unnerve the independent practicing physician, groups of such independent physicians, or any providers not insulated through their employment by institutions.
Should the Accountable Care Organizations (ACOs), authorized through PPACA, focus attention on defensive medicine, or, in the alternative, is defensive medicine sufficiently trivial to escape ACO scrutiny? The many embryonic ACOs underway seem not to have noted or given credence to potential savings from avoidance of defensive medicine.
Should Comparative Effectiveness Research (CER), as overseen by the Patient Centered Outcomes Research Institute (PCORI) focus on expenditures under defensive medicine? ARRA and PPACA support for CER, as evidenced to date (through, for example, research grant support), seems also to have ignored defensive medicine.
"Health reform” does not appear to help “tort reform,” even in a task as modest as overcoming an illusion. If neither ACOs nor PCORI care about defensive medicine, should we?