• Why the stories you’ve read about doctors performing “unnecessary tests” aren’t entirely accurate Friday, July 2, 2010

    Forbes magazine staff writer David Whelan opens a recent blog post with this sentence:

    Survey results published in the Archives of Internal Medicine this week found that 91% of physicians claim they run unnecessary tests on patients for fear of being sued if they don’t.

    Whelan goes on to conclude:

    If lawsuits are rarely frivolous, as lawyers claim, why would 91% of doctors admit in a survey that they order unnecessary tests to avoid being sued?

    I don’t mean to pick on Whelan; he’s not the only writer to frame the story in this way.  But one problem with this is 91% of doctors did not admit they ordered unnecessary tests.  The actual question they were asked in the survey was:

    “Do physicians order more tests and procedures than patients need to protect themselves from malpractice suits?”

    As Associated Press reporter Lindsey Tanner pointed out, “The survey didn’t ask doctors if they personally ordered needless tests because of malpractice concerns, or if it is the major reason for overtesting.”  Nor were the doctors asked directly if they themselves knew anyone who had ordered unnecessary tests, although I guess they would be lying if they answered “yes” without actually knowing someone who had done so.

    Tanner also described the methodology of the survey.  While the physicians surveyed were chosen at random, a significant number of them did not respond:

    [Survey co-author Dr. Tara] Bishop and colleagues randomly selected doctors for the survey from an American Medical Association list of U.S. doctors.  A total of 2,416 were mailed surveys starting in June last year; half [1,231, to be exact] sent in responses and data collection ended in October.

    Given the passion that seems to surround this issue in the medical community, it’s possible that doctors who wanted to take a jab at the malpractice system would be the ones most likely to return those surveys.  While the doctors who were sent the survey may have represented a statistically valid sample group, the doctors who actually returned the survey most certainly do not.

    At any rate, after looking at the actual question that was asked and the number of doctors surveyed who responded, it’s not accurate to assert “91% of physicians claim they run unnecessary tests on patients for fear of being sued if they don’t.”  It should be, “91% of physicians who returned a survey claim some doctors run unnecessary tests on patients for fear of being sued if they don’t.”

    In the same Archives of Internal Medicine survey, 91% of the doctors who responded answered “yes” to this question:

    “Are protections against unwarranted malpractice lawsuits needed to decrease the unnecessary use of diagnostic tests?”

    Listen, no one likes to be accused of doing their job badly, yours truly included.  No one likes having to spend money on insurance of any sort, let alone insurance against doing their job badly.  No one likes being sued or having to spend money on legal fees, either.  We get that.  It’s easy–and understandable–for doctors to hate the malpractice system.  Especially those doctors who don’t make mistakes.  Just as I would rather not have fire insurance, since my house has never burned down.

    On the other hand, mistakes are made, even if the vast majority of doctors are error-free the vast majority of the time.  And those mistakes cause real harm to real people through no fault of their own.

    Of course, no doctor would say victims of “real” malpractice shouldn’t be compensated for their injuries (although they may question whether a jury should have the power to determine the compensation, and they may advocate for limiting the amount of compensation).  It’s all those “frivolous” malpractice suits that cause the problems and run up the insurance bills.

    ● “According to a study by the Harvard School of Public Health, 40 percent of medical malpractice suits filed in the U.S. are ‘without merit.’” — Rep. Lamar Smith (R-Tex.), ranking Republican on the House Judiciary Committee, on Politico.com, Oct. 1, 2009 (an adaptation of a piece that originally appeared in his hometown San Antonio Express-News on Sept. 17, 2009)

    ● “Though Harvard School of Public Health researchers set out to prove in a 2006 study that medical malpractice litigation really isn’t a problem, their integrity compelled them to publish the pesky fact that about 40 percent of malpractice lawsuits filed each year in America are ‘groundless.’” — Darren McKinney, American Tort Reform Association, in a New York Times “Letter to the Editor,” Sept. 27, 2009

    ● “A recent Harvard study revealed that 40% of malpractice suits are frivolous, leading to 15% of the payouts.” — Dr. Marc Siegel, assistant professor at NYU Langone Medical Center, New York Daily News, Sept. 9, 2009

    While these writers go on to argue that the Harvard study shows the necessity of “tort reform,” the researchers call for no such thing.  Rather, the authors of the study (“Claims, Errors, and Compensation Payments in Medical Malpractice Litigation“) wrote they reached the conclusion that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”  (Harvard’s news release about the survey when it was published carried the headline, “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits.”)

    The authors went on to write:

    The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high.  Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. (emphasis added)

    In other words, plaintiffs often need to file a claim just to get the information necessary to determine whether to proceed, and often once that information is revealed plaintiffs realize they don’t have a legitimate claim…and don’t proceed with the lawsuit.  Those cases are still included in the 40 percent of claims that were determined to be “without merit” (nearly all of which were determined not to have involved medical error).

    The authors wrote, “Eighty percent of claims involved injuries that caused significant or major disability (39 percent and 15 percent, respectively) or death (26 percent).”  While some of these claims were determined not to involve medical errors and thus could be characterized as “frivolous” under the definition of the word in law (“present[s] no rational argument based upon the evidence or law in support of the claim”), the injuries can hardly be described as “frivolous” the way most people use the word (“of little weight or importance…lacking in seriousness”).

    It’s true some plaintiffs in the Harvard study received awards in cases that were characterized as “without merit,” but the study found an even greater number of plaintiffs whose injuries did result from medical error and did not receive compensation.  Or, in the words of the study:

    Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy — nonpayment of claims associated with errors.

    If the malpractice system were “fixed,” with all plaintiffs who deserved compensation receiving it and no other plaintiffs winning awards, the amount paid to medical negligence victims would actually be greater than it is today.  Again, quoting from the study:

    One in six claims involved errors and received no payment.  The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury.  Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

    What, there’s a “vast number of negligent injuries that never surface as claims”?  But I thought this is a litigious society where people look for any excuse to sue?  Not quite; the authors of the Harvard study write “research has established that the great majority of patients who sustain a medical injury as a result of negligence do not sue.”

    And as long as we’re on the subject, why don’t we bust another myth, that juries are “out of control” and merely rubber-stamp victims’ claims.  The Harvard researchers found plaintiffs prevailed in only 21% of verdicts; furthermore, a majority (57%) of claims that were decided by a jury and did involve medical error resulted in no compensation for the victim.

    Then there’s the whole other issue of whether limiting compensation to malpractice victims actually leads to lower costs for patients or for taxpayers in general, or just adds to profits for insurance companies and, to a lesser extent, doctors.  And the question of how often those “unnecessary tests” find a condition that needs to be addressed (of course, then they wouldn’t be called “unnecessary,” would they?).  But those will have to wait for another time.

    –J.G. Preston

One Response to “Why the stories you’ve read about doctors performing “unnecessary tests” aren’t entirely accurate”

  1. Michael Kirsch, M.D. says:

    I’m one of those physicians who performs unnecessary tests as defensive medicine. Indeed, this is the culture of medical practice, at least in northeast Ohio. Why do I do it? Does it really protect me? See http://www.MDWhistleblower.blogspot.com under Legal Quality.

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