Malpractice: How fear changes practice

April 8, 2005

As liability payouts rise, physicians are ordering more tests and making more referrals—often against their better judgment.

Last year, Medical Economics' Web site ( http://www.memag.com) featured this poll question: Have you reduced the scope of your practice because of malpractice concerns? An overwhelming majority of physicians-72 percent-said, "Yes, I'm afraid to do anything but the basics," while another 8 percent said, "Yes, but only because my carrier made me." A mere 20 percent said, "No, I refuse to worry about that."

These results gibe with the findings of a 2002 Harris Poll in which physicians, nurses, and hospital administrators were asked about the impact of liability concerns on testing, treatment, and referrals. In that survey, 79 percent of physician respondents said that they order more tests than they would "based only on professional judgment of what is medically needed." Some 74 percent said they are more apt to refer patients to specialists; 51 percent said that they suggest more biopsies than they deem necessary; and 41 percent prescribe antibiotics and other medications against their better judgment. (Physicians were allowed to choose more than one response.)

"One predictable reaction to the malpractice crisis is that physicians look for ways to reduce their exposure," says pediatrician Gerald Hickson, director of the Vanderbilt Center for Patient & Professional Advocacy in Nashville. "There's a tendency to take the more conservative option, which often means more testing, more comprehensive evaluations, and increased costs. For example, if I'm operating under fear of litigation and I see a child with high fever and no clear source, I'm more likely to hospitalize the child."

Anecdotal evidence suggests that defensive medicine-treatment decisions made more to avoid litigation than to benefit the patient-is on the rise. Reports from our readers support this contention, while at the same time indicating that many physicians are skeptical that dotting every i and crossing every t improves health outcomes. As Fred Teichman, an ob/gyn in Lewisburg, PA, puts it, "It's sad to step back and realize how much money is being wasted on all this. Even the patients are getting tired of so much care, but we all know what will happen if anything goes wrong."

Many physicians share Teichman's view. Here's what they have to say, and how risk managers and other experts respond.

Too many tests, too little time There's nothing like a malpractice scare to bring out a physician's self-preservation instincts. Internist Jeffrey M. Kagan of Newington, CT, says that he began ordering an X-ray for every mildly injured ankle after he was sued, albeit unsuccessfully, for delayed diagnosis of an ankle fracture.

An Indiana ER physician, who prefers not to be named, is sympathetic to Kagan's plight. "An ankle sprain can be an occult fracture," she says. "I find myself qualifying everything and hedging on diagnoses. I feel I have to cover myself for every oddball or worst-case scenario."

Richard Duszak, president of a 24-physician radiology practice in Reading, PA, where malpractice insurance rates are among the highest in the country, says that almost half his group is unwilling to do mammography because of liability concerns. "The public-and, unfortunately, many trial lawyers-have the incorrect expectation that mammography will identify every breast cancer," says Duszak. "Even with the best of eyes, a significant minority of breast cancers will be mammographically occult. These so-called missed cancers account for a large number of malpractice suits against radiologists."