Doctors Don't Need Tort "Reform" -- They Need a Shrink

About a year and a half ago, the New Yorker magazine published a widely-circulated article by Dr. Atul Gawande, called "The Cost Conundrum; What a Texas town can teach us about health care," which explored why the town of McAllen, Texas, "was the country's most expensive place for health care." The following exchange took place with a group of doctors and Dr. Gawande:

"It's malpractice," a family physician who had practiced here for thirty-three years said. "McAllen is legal hell," the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn't lawsuits go down? "Practically to zero," the cardiologist admitted.

"Come on," the general surgeon finally said. "We all know these arguments are bullshit. There is overutilization here, pure and simple." Doctors, he said, were racking up charges with extra tests, services, and procedures.

Now we know why they keep repeating, in the words of this general surgeon, such "bullshit."

Yesterday, the University of Iowa issued a news release about a new study done by David Katz, M.D., associate professor of medicine with University of Iowa Health Care (and several other authors), called, "Physicians still fear malpractice lawsuits, despite tort reforms." They found (full study in September 2010 Health Affairs) that doctors have a "fear of suits that seems out of proportion to the actual risk of being sued."

Several explanations are suggested. One squarely blames the medical societies/lobbyists, which continuously hype the risk of lawsuits to generate a lobbying force to help them advocate for doctors' liability limits, i.e., "tort reform." For example, they say:

It is possible that physicians lack access to accurate information about their absolute risk of being sued or their relative risk compared to their peers in other specialties or geographic areas. Advocacy efforts by medical professional societies in support of tort reform may contribute to this problem by conveying the impression that most or all states and specialties are in crisis and require additional legal protection.

Exactly. Who hasn't walked into a doctor's office lately and either read some fear-mongering "literature" from these medical societies (or even been told by your own doctor) to support laws that take away your own legal rights in case the doctor commits malpractice on you? (See how this worked in Texas.)

A second possible explanation offered by the authors is that doctors will "exaggerate their concern about being sued, using it as a justification for high-spending behavior that is rewarded by fee-for-service payment systems." The authors don't especially like this explanation, but it certainly is consistent with the views of the McAllen Texas doctors.

But here's what it really comes down to: utter irrationality. Specifically, the authors write:

A third explanation relates to well-documented human tendencies to overestimate the risk of rare events and to be particularly fearful of risks that are unfamiliar, potentially catastrophic, or difficult to control. Lawsuits are rare events in a physician's career, but physicians tend to overestimate the likelihood of experiencing them. Surveys of the public demonstrate much higher levels of fear of dying in an airplane crash than in a car accident, even though the latter fate is far more likely. Severe, unpredictable, uncontrollable events are associated with a feeling of dread that triggers a statistically irrational level of risk aversion.

Fears like this, according to the National Institute of Mental Health, signify an actual mental health disorder, more specifically an "anxiety disorder." Anxiety disorders have "different symptoms, but all the symptoms cluster around excessive, irrational fear and dread."

Treatment, according to NIMH, is "medication, specific types of psychotherapy, or both." Not listed? Having politicians take away the rights of patients. The authors write:

Although many medical professional organizations continue to press for liability-limiting tort reforms, we found that many such reforms were not associated with a significant difference in physicians' malpractice concerns. In particular, the most strongly advocated reform, capping noneconomic damages, was not associated with a significant difference in perceived malpractice risk. This finding is at odds with other research demonstrating that damages caps are associated with reduced defensive medicine, as measured by lower intensity of health service use.

Meanwhile, if you are a patient, there is a fear that is not only rational, but also grounded in fact according to an extensive study by the U.S. Department of Human Services. HHS found that when you enter a hospital, you have a one in seven chance of being harmed by the medical care that you receive, harm that could permanently injure or even kill you.

So the lesson of this story is: patients need competent physicians and safe hospitals; doctors need medication, psychotherapy, or both; and, politicians need to focus on reducing this epidemic of medical malpractice. This is the only acceptable way to reduce deaths, injuries, claims and lawsuits.