More Defensive Medicine

In two earlier posts, "Approaches to Reducing Healthcare Costs" and a response to comments on that post, I ruminated on the issue of defensive medicine and how this ubiquitous practice contributes to the inflating healthcare costs in the United States. I wanted to share an editorial by Philip K. Howard published in the Washington Post a few days ago concerning this issue. Mr. Howard is an attorney and chairman of Common Good, a non-profit legal reform group.

In his piece, Howard calls for an end to the "erratic, expensive and time-consuming jury-by-jury malpractice system." His solution would be to replace traditional malpractice litigation with cases handled by a specialized court handling healthcare matters exclusively. You could compare these courts to the U.S. bankruptcy courts or perhaps to the adjudicative bodies of government agencies.

I do not dispute that a change of that nature in malpractice justice would save doctors, facilities, and medical professionals some money and, theoretically, reduce costs for medical patients and insurance policy holders. But let's think at a very basic level what the implementation of a health speciality court would do. The health courts would no doubt conduct only bench trials, putting malpractice decisions in the hands of professionals (either health professionals or legal professionals well versed in medical issues) rather than juries. Obviously, to save costs, Howard's idea must be that the health courts would find more often for defendants rather than plaintiff-patients. This presents the potential for a lose-lose situation for wronged patients. Either they can continue to pay inflating insurance premiums and rising healthcare costs, or they can sacrifice a chance to seek redress with a jury of their peers as fact-finder.

The question to address next would be whether the potential savings in healthcare costs to all patients and policy holders would justify the relinquishment of jury medical malpractice trials. I do not have an answer to that question. However, I do have reservations about the effects that a professionally sympathetic adjudicative body would have on patient care, even if it might bring down costs somewhat.

Approaches to Cutting Healthcare Costs

I came across this letter to the editor published by Rep. Dave Camp (R - Mich.) in the Washington Post the other day. In it, Rep. Camp identifies three strategies for lowering healthcare costs for the average American. Two of his three suggestions I cannot really dispute; they are, more or less, common sense solutions. The Congressman calls for reform of insurance regulations. I cannot agree more, particularly if no drastic healthcare overhaul comes in the near future. If insurance companies are to continue to have a dictating role in healthcare, the regulations need to reflect and appropriately address that role. Rep. Camp also highlights the need to "eliminate the waste, fraud and abuse in Medicare and Medicaid," a noble goal, if not a bit aspirational.

The Congressman's third cost-cutting measure is the one I would like to spend a few moments with, and I have two general points I would like to make about his perspective. The Congressman advocates eliminating "defensive medicine," which he defines as "doctors order[ing] costly and often unnecessary tests just to avoid being sued." My first point is somewhat tangential, so I will dispose of it as quickly as possible. I hope that preventative care is not unnecessarily victimized as part of Rep. Camp's onslaught against defensive medicine. While preventative care can increase avoidable healthcare costs for healthy patients, early detection of serious conditions can reduce costs of treatment. Also, exchanging preventative care for primarily reactionary care raises issues about the quality of healthcare being given and received. This segues to my second point about defensive medicine.

Rep. Camp contends that medical professionals at times order tests just as means of protecting themselves against lawsuit. While I will not dispute the truth of his contention, blaming the healthcare industry for these actions ignores a key foundational issue, namely, that doctors would not have to worry about lawsuits but for the litigiousness of patients. As a former private practice attorney, Rep. Camp should be well aware of this principle. An attorney owes his client an ethical duty to fully explore all relevant and valid aspects of a legal claim or matter. Otherwise, the attorney is liable to the client for his failure to do so, should that failure harm the client in some way. I would guess that the Congressman would not support legislative limits on the thoroughness of legal representation. I see little distinction in principle between that scenario and medical care.

The question, then, is how defensive medicine would be eliminated. Would it be through limiting a patient's right to seek retribution for medical malpractice? Many patients over time have certainly abused that right, but is eliminating or severely limiting that protection really the solution to our dilemma of healthcare costs? While professional organization and licensing boards uphold the quality of care, I would speculate that the absence of this patient protection would have at least some degrading effect on the quality of healthcare generally received. At this point, I refuse to believe that a system which can provide both affordability and quality of healthcare is impossible.

Defensive medicine further raises the issue of universally defining adequate, excessive, and substandard care. Certainly existing professional standards could and should set the benchmarks; however, variations exist across specialties and geographic location. Should doctors be legally forced to find that ideal medium between too little and too much? Other factors encourage them to find that place - ethics and efficiency being two that immediately come to mind. Should legal ramifications force a physician to question a test that might or might not ultimately prove to be"unnecessary"? Could that physician find himself in a catch-22, where ordering the test might be considered defensive medicine while failing to order the test would be negligent?

Obviously, I do not have answers for these questions. I do applaud Rep. Camp and his colleagues for actively seeking means to provide accessible, affordable healthcare in this country. I do get the sense, though, that the Congressman's letter unfairly blames medical professionals for the practice of defensive medicine. Furthermore, the possible ramifications of the steps that would limit or eliminate defensive medicine must be considered - for the patient, for the physician, and for the general quality of healthcare. While I admittedly have provided little help in coming to a solution, I feel I have raised questions that ought to be considered as our lawmakers continue to debate the issue of healthcare reform.