At first glance, the thin, cream-colored envelope looked no different from the usual pieces of mail that I periodically receive from attorneys’ offices. Most are straightforward letters requesting medical records that could support a patient’s disability claim. Some are seeking information regarding a client’s medical status prior to an accident. But the content of this particular letter was quite different. The writer, a litigator at a large firm that specializes in medical malpractice, was specifically requesting copies of any personal correspondence I might have had with a certain Dr. R., a local internist who, over the course of his lengthy career, had referred just a single patient to me.
Dorothy & David
I happened to meet her about three years earlier. Dorothy was a woman in her early 70s with myriad aches and pains. She was no different from many other patients I see. So why did I remember her so vividly?
What struck me about Dorothy and her husband David was their absolute rage toward Dr. R. At first, they seemed like a pleasant older couple, until midway through Dorothy’s first visit, when his name came up. Suddenly, they were transformed into a marital version of The Incredible Hulk. Seething with anger, they described how they had known Dr. R. since his earliest days in practice in their leafy New England town. A rising star, he was highly regarded for his astute diagnostic skills. Lately, though, he had lost his touch. During office visits, he no longer had time to chat, and he did not seem to take any of their complaints seriously. Phone calls were rarely returned. He was just a horrible doctor. Their invective left me speechless. Generally, when a patient complains about their doctor, they don’t turn red in the face with tears welling up in their eyes. I decided to see Dorothy just for this single visit. I feared becoming the target of her next tirade, should I ever fall out of favor with her.
Because most of Dorothy’s pain was due to osteoarthritis, I referred her to a physical therapist in her town. I suggested that it might be easier for her to temporarily follow up with Dr. R. rather than drive the 50 stressful minutes from her home to my office via the winding Jamaica Way, a parkway best suited for the horse and buggy that Frederick Law Olmsted designed it for.
Dorothy’s therapist reported a slow but gradual improvement in her pain. Great news. I thought I was in the clear. Then one day, Dorothy reappeared at my office, accompanied by David, complaining of back pain. My unease turned to alarm when they explained how they wanted me to be in charge now, instead of “that terrible Dr. R.” Over the next several weeks, I tried my best to refer them to a new primary care doctor. I contacted several internists who practiced in her area, but Dorothy resisted. She assured me that she would transfer her care to one of them after I took care of her back pain. The weeks turned to months. Her back pain was not improving with therapy. There were a few more office visits, each one replete with a hostile denunciation of Dr. R.
The situation reached a climax one Sunday morning, when Dorothy experienced an episode of severe lightheadedness. Instead of seeking urgent care at their fine community hospital, David bravely drove his wife through a drenching autumn nor’easter to get to our hospital’s emergency department. To my consternation, the medical team notified me that I was listed as her attending physician. At the time of her discharge, she finally agreed to continue her care with a new internist working at our sister institution, the Massachusetts General Hospital in Boston. Her file could finally be closed.
Several months later, Dorothy’s new doctor called to update me on her condition. She had obtained Dr. R.’s old records and learned that two years earlier, at Dorothy’s last visit with him, three stool samples were analyzed for the presence of occult blood. His medical assistant listed all three samples as showing trace amounts of blood, but Dr. R. never told Dorothy about these results, nor did he recommend any follow-up studies, such as a colonoscopy. Instead, her new physician ordered this procedure, but it was too late. A stage IV adenocarcinoma of the bowel was found. Despite aggressive surgery and chemotherapy, Dorothy died one year later. Not surprisingly, her estate was suing Dr. R. for failing to make a timely diagnosis of a potentially treatable cancer.
Another cream-colored envelope arrived at my office a few weeks after the first. I was going to be deposed in this malpractice lawsuit. Dorothy’s attorneys wanted to hear more about her back pain. Why was she in so much pain for so many months? Had I considered the possibility that her pain could have been due to metastatic cancer and not to lumbar spine disk disease? Shouldn’t I have intervened sooner?
Although depositions can be highly stressful events, I was fairly composed that hot September afternoon. Reviewing my records, I found the piece of evidence that ultimately saved me from further legal turmoil. Dorothy’s persistent back pain was consistent with lumbar spine disk disease, and although she lacked any of the worrisome red flag features, I had ordered a totally unnecessary magnetic resonance imaging (MRI) study. It demonstrated what I already knew: multilevel lumbar disk space narrowing. There were no surprises. So why did I order it? I was practicing defensive medicine. She insisted on having the test, and I relented. Sitting in the law firm’s conference room, I was relieved that I had made this costly decision, one that likely saved me from becoming a co-defendant in a malpractice lawsuit.
Defensive medicine and medical malpractice are inextricably twisted into healthcare’s version of the Gordian knot. Physicians’ fear of malpractice litigation drives defensive medicine behaviors. We order more tests in a fruitless effort to reduce our potential liability to as close to zero as possible. Simply stated, the mere thought of having to appear in court to defend one’s medical decisions strikes terror in our hearts and minds. We are entrusted to care for our patients, and when we are sued, we feel as though we are failures. Life does not return to normal for many malpractice defendants. Doctors who have faced litigation have higher rates of anxiety and depression than their peers in other professions who face similar legal woes.1
However, there is a downside to defensive medicine. Excessive laboratory testing and overprescribing of drugs can lead to more costly and more dangerous care. For example, the widespread overuse of computerized tomography and magnetic resonance imaging in the evaluation of many of our patients is fueled by our own fears and aided and abetted by risk-averse radiologists who often conclude their reports by recommending additional imaging studies, “just to be safe.” Sometimes, the extra data generated by these tests beget even more medical errors and, ultimately, expose physicians to more litigation. After all, false-positive results abound in medicine. The true financial cost of defensive medicine is hard to quantify, although estimates run as high as $650 billion annually or nearly one-quarter of all U.S. healthcare costs.
Physicians’ fear of malpractice litigation drives defensive medicine behaviors. We order more tests in a fruitless effort to reduce our potential liability to as close to zero as possible.
Malpractice: Then & Now
An opinion piece written by the leadership of the Massachusetts Medical Society once referred to the “alarmingly frequent” prosecutions of doctors for malpractice and the belief that some surgeons were closing their practices because of this hostile situation.2 This statement may describe the current state of affairs, but it was actually written in 1850. Some historians consider this era to be the time when medical malpractice litigation exploded. A cadre of physicians who were trained in medical schools was replacing the medical quacks and other hucksters who offered frivolous remedies. Medical textbooks and journals began to appear, creating a proper environment for the establishment of practice standards. Although these were positive changes, they came with one major drawback. Lawyers could now challenge doctors in court whenever their care was believed to deviate from these standards. Physicians could no longer resort to a common legal defense, aptly described in 1849 by a U.S. Navy physician, William Wood, MD:3
It is better to be without a diploma because then a practitioner can say, “I make no pretentions, I offer no certificate of ability, and only gave my neighbor in his sufferings, such aid as I could.”
The publication of Herman Melville’s metaphoric masterpiece, Moby Dick, symbolized the view of many physicians, then and now, that medical malpractice litigation is the white whale: evil, ubiquitous and seemingly immortal. As to the symbolism of the sharks that harass the whale boats, “seemingly rising from out the dark waters … maliciously snap[ping] at the oars following them in the same prescient way that vultures hover,” there should be no doubt as to whom they personify.4
Several factors may explain our unremitting malpractice conundrum. According to James Mohr, PhD, distinguished professor of history and social studies at the University of Oregon in Eugene, there are three medical and three legal factors that sustain litigation.3 The former include innovative pressures on American medicine, the spread of uniform standards of care and the advent of medical liability insurance. Deep pockets are required to cover sizable financial losses, but huge fiscal resources may encourage plaintiffs to file even larger claims. The practice of using contingency fees to pay attorneys and the use of citizen juries rather than specialized tribunals to adjudicate the trials have further aggravated the problem. Finally, there is the distinctive nature of tort pleadings in the U.S. What are torts? They may be broadly defined as private civil wrongs that violate understood duties or social responsibilities. Torts differ from contracts because the parties to a contract have theoretically agreed in advance on acceptable and unacceptable outcomes. In the 19th century, when the opportunity existed, American physicians resisted switching medical malpractice from tort law to contract law. They bristled at the thought that their craft could be considered similar to the work of boilermakers and roofers. Instead, doctors remain mired in a woefully inefficient malpractice system.
In a recent study that analyzed data from nearly 41,000 physicians covered by a single insurer, researchers found that the average physician spends 50.7 months, or almost 11% of an assumed 40-year career, with an unresolved, open malpractice claim.5 Although damages are a factor in how doctors perceive medical malpractice, even more distressing for the physician and the patient may be the amount of time these claims take to be adjudicated.
So here we are today. Despite the proliferation of lawsuits and the widespread practice of defensive medicine, patients don’t feel any safer, because errors, such as the one committed by Dr. R., are still common. Is there a better way? States including California and Texas have enacted limited tort reform and have capped malpractice claims for pain and suffering. But the data are mixed about whether these actions have reduced the volume of defensive medicine activities in those states. Michigan has spearheaded an approach that encourages healthcare workers to report medical errors, apologize for them and offer patients financial compensation. Countries such as Sweden and New Zealand have adopted “no-fault” malpractice models that ease the burden for filing claims of medical wrongdoing, but limit their compensation to the actual expenses incurred by patients for lost wages and their loss of function. Obviously, a no-fault malpractice scheme would destroy the plaintiff’s bar, and so it’s hard to imagine that such a powerful and politically well-connected group would ever allow this format to be tested in the U.S. However, with the passage of the Affordable Care Act, there will be even greater pressures on all parties to rein in escalating medical costs.
Isn’t it time to untie the Gordian knot?
Simon M. Helfgott, MD, is associate professor of medicine in the division of rheumatology, immunology and allergy at Harvard Medical School in Boston.
- Nash L, Daly M, Johnson M, et al. Psychological morbidity in Australian doctors who have and have not experienced a medico-legal matter: Cross-sectional survey. Aust N Z J Psychiatry. 2007 Nov;41(11):917–925.
- Burns CR. Malpractice suits in American medicine before the Civil War. In Burns CR, ed. Legacies in Ethics and Medicine. New York: Science History Publications, 1977:107–122.
- Mohr JC. American medical malpractice litigation in historical perspective. JAMA. 2000 Apr 5;283(13):1731–1737.
- Annas GJ. Doctors, patients, and lawyers—two centuries of health law. N Engl J Med. 2012 Aug 2;367(5):445–450.
- Seabury SA, Chandra A, Lakdawalla DN, et al. On average, physicians spend nearly 11 percent of their 40-year careers with an open, unresolved malpractice claim. Health Affairs. 2012;32(1):111–119.