I'm starting to think I should just call this blog "T. Crown's Musings on Medical Malpractice and Tort Reform," which is kind of irritating, as there are a lot of things I care a lot more about than medical malpractice, tort reform, lawsuits, liability, and the general crankiness that our legal system either embodies or causes, depending on how you look at these things.

For example, I like thumbs.

Anyway, since I'm this far down the road, there's really nothing left to do except to toss the silver down the well, pack up the chickens, and keep going.

MedPundit has a link to a very thorough exegesis on the value of medical malpractice lawsuits in providing a negative incentive to doctors to show more care in treating their patients. I, like Ms. Smith, am not qualified to examine the statistical analysis in detail; I will say that game theory and simple human psychology suggest the fellow is right. I'll also tell you from firsthand experience that it's right: One hospital we sued because they failed to recognize a postoperative pulmonary embolism that killed a man, now checks routinely for pulmonary embolisms in their postop patients. I know of two people who had embolisms that were caught, at that hospital, and treated, and lived -- and I'd argue it's at least in part because the hospital was worried about getting sued again.

Ms. Smith, however, rebuts with a point that's been bothering me for a little while now: The danger of overreaction. I'll let Ms. Smith put it in her words:

But, I think that far more often, fear of a lawsuit causes us to overtreat and to order unneeded tests to protect ourselves.

All doctors experience this, and not just occasionlly. Here’s another example from my own practice. A patient came to me after her sister was diagnosed with ovarian cancer. She wanted to make sure she didn’t have it. I discussed how we don’t really have a good screening test for ovarian cancer. She should have yearly pelvic exams to check for ovarian masses, but by the time those are felt, cancer is usually advanced. We could do yearly ultrasounds, but a cancer could still crop up in the intervening months, and be quite aggressive. We could do yearly blood tests for a protein that’s produced by ovarian cancer cells, but the test isn’t specific for ovarian cancer. It can be elevated for other reasons, resulting in a lot of worry and perhaps a needless surgical procedure. Again, a cancer could develop in the intervening months. Early diagnosis of ovarian cancer doesn’t necessarily improve outcomes, because ovarian cancer tends to be aggressive. We discussed genetic screening, which also can’t tell her with any certainty whether or not she’ll develop cancer, but only whether or not her risk is increased.

In the end, she looked at me blankly, shrugged her shoulders, and said, “I don’t know. You decide. I trust you to do what’s best for me.” But, in the case of screening tests like that, I don’t know what’s best for her. I don’t know if the false sense of security she gets from a normal screening test is worth the lower level of daily anxiety. I don’t know if she’ll think that a surgical procedure initiated by a false positive screening test would have been worth the risks it entails. But, I do know this. If I don’t do those tests, and she gets ovarian cancer, I’ll be the one who gets the blame. Maybe not by her, but certainly by her family. So, completely out of self-interest, I ordered the tests. They probably won’t make a difference in her life expectancy. They will certainly cost her insurance company a lot of money. But, they’ll keep me out of court.

I know that I'm not alone in this. Everytime I get a radiology report that hedges on the result and suggests more studies, I know the radiologist is doing the same thing. I suspect most of my mammogram call backs are due to this. There are times when exercise stress tests are equivocal for evidence of heart disease, the history not very convincing, yet patients get cardiac catheterizations "just so we don't miss anything." And there are plenty of times when we all order x-rays looking for fractures when we know full well the yield is likely to be small. All of this adds up quickly. And we all pay the price.

As one of my older, more experienced, colleagues once said, "It used to be that ordering a lot of tests was a sign of a doctor's inexperience. Now, it's the standard of care."

It's senseless to deny that this massively increased care isn't raising the cost of health care, health insurance, and most other "health" things.

It would also be senseless for me to argue that I know the way around the problem. In a sense, it's a disturbing side effect of one of the most wonderful things ever to happen to humanity: Technological progress. As we get better at treating illness, we live longer, and healthier, and we slowly start to expect mortality to be farther and farther away. (It's called a "longer life expectancy.") So, we get greedy -- rationally -- and we want more. We want to live longer and healthier. We want to be sick less. We want to be cured faster. We want the best treatment, now that we know it's possible. (Put it this way: You tell an average serf in 1200 A.D. that he'll live until he's seventy with the right medical care, and he'll think you're nuts; do it to the average guy on the street now, and he'll want to know why you're shortchanging his medical care.)

The problem is, what we demand is, in the short run, more expensive. And with the baby boomers about to get much, much sicker, on average, the system might very well explode.

Yes, I know: All I'm doing is restating the problem. Sue me. You have a solution? Click on the mailto link on the left.