How Much Does Defensive Medicine Cost?

Do physicians really spend an inordinate amount of our medical dollars? Does defensive medicine really cost our economy a bundle? Unnecessarily? Here is an article in a recent Medical Economics that explores the questions.

Despite broad consensus that defensive medicine exists, it remains difficult to define the term, much less measure its impact on U.S. healthcare spending. Typically, defensive medicine means physicians ordering tests and procedures, making referrals or taking other treatment steps to help protect themselves from liability rather than to benefit their patients’ care. Some researchers label it as unnecessary care of marginal value at best. Others describe it as overuse of medical services that affords more economic — and even psychological — benefit to physicians than to their patients.

“You’ve got America as a ‘can do’ country, wanting tests that may not in any way be useful,” says Henry Aaron, PhD, a health policy expert at the Brookings Institution. “That said, it is in the interest of the provider to provide it, and in the interest of the patient to get it,” especially when out-of-pocket cost-sharing is low, he says.

In a 2014 study led by the Cleveland Clinic and published in JAMA Internal Medicine, researchers asked a few dozen physicians in three hospital medicine services to estimate the defensiveness of their own orders. Fully 28% of 4,200-plus orders were reported by physicians as being at least partially defensive, but only 2.9% were seen as completely defensive in nature.

The Cleveland Clinic study cited a national cost estimate of $46 billion related to defensive medicine, but noted that such costs have been measured only indirectly. Other studies, along with the American Medical Association, put the cost impact much higher.

Moreover, researchers said, physicians’ attitudes about defensive medicine failed to correlate with cost, suggesting that only a small portion of costs might be reduced by tort reform.

Defensive medicine is viewed by many as a deep-seated dilemma. Vikas Saini, MD, president of the Lown Institute, says the nonprofit Boston think tank launched a grassroots initiative of physicians, patients and community organizations in 2013 called the RightCare Alliance to change behaviors “primarily because we view the problem of unnecessary care and use as a deep cultural problem, I can sum it up as more is not always better, but that is the cultural bias,” he says.

Saini puts the issue in the context of a demanding profession. “There’s a lot of borderline. There’s a lot of uncertainty, guessing. It is not purely defensive. There’s also profound concern for your patient and concern for your reputation all wrapped together,” he says. “For us, the deeper issue is [that] modern medicine has become driven a lot by technology, a lot by money—and we need to free decisions to be driven by patients’ needs.”

At times there can be poor communication and lack of trust between physicians and their patients and tort reform “isn’t going to fix the habits of defensive medicine,” Saini says.

Research suggests that physicians’ perceptions are a key driver. A 2013 study published in Health Affairs linked physicians’ survey responses on their levels of malpractice concern to claims of Medicare patients treated in their offices. It found that physicians reporting a high level of malpractice concern were most likely to engage in practices that would be considered defensive (for example, more aggressive diagnostic testing) when diagnosing patients with new complaints of chest pain, headache, or lower back pain.

“It’s a multidimensional problem. You’ve got patient expectations for care. You’ve got conflicting recommendations for care, and then you have local practice patterns that also drive physicians to order certain diagnostic tests and treatments,” says David A. Katz, MD, associate professor in the department of internal medicine at the University of Iowa and one of the study’s coauthors.

“One thing that was striking from the data is state malpractice policies really had much less of an impact on [physicians’] fear of malpractice than what we had expected,” adds Katz. “Having said that, the [physician] perceptions were a big driver, particularly on the use of imaging…and we saw a higher likelihood of referral to the emergency department” among doctors more fearful of malpractice, especially for patients with chest pain.

Katz, who also practices in the Veterans Affairs Iowa City Health Care System, says when there is uncertainty about a test’s value, he tries to explain to patients about conflicting data on its benefits “and that a cascade of tests may result downstream after a positive screening test. Sometimes insurance or a third-party payer may encourage a procedure and be willing to pay for it, but it may not be in the best interests of the patient.”

“Sometimes it defies rational discussion, and many physicians will give in to the patient,” he concedes.

Primary care physicians are regarded as key to helping reduce waste in the system. Yet, according to a 2011 study in the Archives of Internal Medicine, 42% of family and general internal medicine physicians in the U.S. thought their patients were getting too much medical care; only 6% thought patients were receiving too little care.

Brenda Sirovich, MD, MS, associate professor of medicine at Dartmouth University’s Geisel School of Medicine and the study’s lead author, explains that researchers’ interest “wasn’t specifically in malpractice, but in drivers of healthcare practice patterns” and gaining understanding that clinical indications are not the only things that influence physician decision-making.

Yet Sirovich says it is hard to determine what other factors influence decisions, in  part because surveys are standardized instruments with finite responses—and perhaps also because physicians might not know the factors themselves.

“I think most would say defensive medicine is practiced with the primary aim of minimizing litigation,” Sirovich says. “But a number of studies came out with the conclusion that defensive medicine plays a tiny role in explaining rising costs and practice patterns.”

Sirovich’s belief, while not based on specific evidence, is that this conclusion is flawed because defensive medicine is difficult to understand and “malpractice is a very feared thing, a completely destructive experience,” she says.

Recently, physicians confirmed their ongoing worries about the financial impact of defensive medicine. In the 2014 Survey of America’s Physicians, 20,000-plus physicians were asked to identify the factors most likely to contribute to rising healthcare costs. Six in 10 physicians cited defensive medicine, putting it at the top of the list; an aging population came in a distant second at 37.4%.

Primary care physicians and specialists cited defensive medicine to the same degree, but relatively more—nearly seven in 10—physicians aged 45 or younger cited defensive medicine as a contributor.

Kisha Davis, MD, a family physician in practice for seven years, says part of the reason for practicing defensive medicine is that medical schools train students to look for, and rewards them for, finding “the zebra.” In other words, the idea that “maybe this is the one [case] that doesn’t fit the textbook,” Davis says.

Davis, the  medical director of Casey Health Institute, an integrative primary care practice in Gaithersburg, Maryland, says she maintains a good relationships with her patients and doesn’t think much about malpractice or being sued. But she does think about patient outcomes. “I don’t want to be the one who missed cancer,” she says.

As a younger doctor, Davis says she may feel more comfortable than some physicians in telling her patients not to worry if she doesn’t order a slew of the most sophisticated, costly testing.

But clinical experiences can change practice patterns. Davis recalls sending for referral a patient who came to her with suspicious abdominal bloating. Ovarian cancer was diagnosed. This led her to worry more about the next few patients who came in with similar symptoms, despite less-suspicious exam results, because she didn’t want to delay diagnosis.

“You worry more [under such circumstances],” Davis says. “I, in general, tend to be a provider who doesn’t order lots of tests, [and] don’t jump to the MRI. But I might have ordered blood work [and] tests because more suspicion creeps into your mind. It’s not always about malpractice. There is also an element of uncertainty.”

Patient education “has a huge part to play” in avoiding defensive medicine, adds Davis. She says a patient with a headache came into her office in November telling her a head scan was needed.

“Sometimes it takes a lot of convincing” to sway patients  from such desires, and much of her time is spent in doing so, she says. In the Washington, D.C. area where she practices, she says patients tend to see many specialists, so she must explain to patients why they don’t need a cardiologist for hypertension.

Davis says she worked previously for four years at a community health center in Columbia, Maryland, where many patients didn’t have other care options. “I handled it all,” she says. “Now, it’s different trying to get people to understand the benefits of primary care and how care coordination can work.

“People come in wanting antibiotics, wanting studies, wanting to see the specialists,” she adds. “I have time in my practice to explain what primary care can do [and why such steps aren’t necessary], but I understand why my colleagues in busy practices may not have the time to have more in-depth conversations as much as they should. You really have to make it a priority.”

In a broad effort to improve quality and safety of care, the American Board of Internal Medicine (ABIM) Foundation launched the Choosing Wisely campaign.

The national initiative aims to help providers and patients discuss overuse of tests and procedures and support efforts to help patients make what the foundation describes as “smart, effective care choices.” Its first recommendations were rolled out in 2012, followed by more in 2013 and 2014. 

“Choosing Wisely helps recognize there are times when we try to manage uncertainty by overtesting, but overtesting itself can do harm,” says Richard J. Baron, MD, the ABIM Foundation’s president and chief executive officer. “Choosing Wisely isn’t about rationing or withholding [care]. It’s about doing what’s right, not less.”

Baron says that holding “evidence-based conversations” about appropriateness of care with patients “is a better way to go than just assuming if you do another test you’re somehow reducing your liability profile,” he says.

To date, 69 medical societies and groups representing nurses and physical therapists have joined the Choosing Wisely initiative, along with 21 Robert Wood Johnson Foundation grantees for implementation efforts and more than 24 consumer organizations, including Consumers Union.

As the U.S. healthcare market shifts toward use of more high-deductible health plans, patients bearing more of the cost are going to ask doctors when and if they really need certain tests or procedures, Baron says. And physicians in large organizations increasingly are working under global budgets, trying to improve quality of care and decrease costs at the same time, he adds. Cedars-Sinai Medical Center is putting Choosing Wisely recommendations into patients’ electronic health records, he notes.

Katz says he and other staff doctors working as salaried employees at the University of Iowa Medical Center are looking at overused practices identified by the Choosing Wisely campaign and examining the evidence behind the recommendations as part of an internal effort to create more awareness about marginally effective treatments.

“What’s driving that is macro-economics,” Katz says. “The University of Iowa Medical Center is working to create an accountable care organization (ACO), and the idea is we have to be more accountable and discriminating in our use of treatments.”

But some physicians will need convincing to embrace the evidence-based model promoted by Choosing Wisely. In a 2014 online exchange about Choosing Wisely, a physician criticized the initiative, asserting he was involved in saving a patient’s life by not following a Choosing Wisely recommendation related to cardiac screening.

Another physician replied that surgeons must individualize patient care based on risk assessment from a careful history and physical exam. Routine duplex scanning for carotid artery disease “is not indicated in the absence of symptoms or specific risk factors, as there is not evidence that this screening results in improvements in patient outcomes,” he wrote.

The real question is who’s going to be in the driver’s seat with respect to defensive medicine, says Laura Hermer, JD, associate professor at Hamline University School of Law. “I ask doctors at CME talks: ‘Do you want it to be you or state legislatures?’”

The medical profession must mandate its own practice and ethical standards, Hermer says. “If you’re simply upping the ante at every turn because you’re worried you might be sued—and, by the way, you’ll get paid for it anyway—you’re not taking the right stand,” she says. As for Choosing Wisely, Hermer asserts the issue is whether it is “something that will translate to the courtroom.”

Hermer coauthored a 2010 study on defensive medicine, cost containment and reform that concluded that traditional medical malpractice reforms won’t allay various pressures leading doctors to overprescribe and overtreat.

But researchers said such reforms may be needed to persuade physicians to change practice patterns as part of a larger transformation to healthcare delivery and payment systems needed to curb costs.

Hermer points to a 2014 RAND study published in The New England Journal of Medicine that found defensive medicine is still prevalent in three states, including Texas, despite laws raising the legal threshold for malpractice in emergency settings.

“In Texas, you have a state that implemented strong tort reform and you don’t see a reduction in defensive medicine as a result of that,” she says. “The answer is physicians are going to continue to fear being sued, notwithstanding tort reform, and probably notwithstanding strong efforts like Choosing Wisely.”

For practicing physicians, preventing defensive medicine in their practices boils down to good communication with patients, says Richard Roberts, MD, JD, Professor of Family Medicine at the University of Wisconsin.

“The best we do is basically ask people, is this defensive or not? Would you be comfortable stopping at 95% certainty, and not doing three more tests for 98% certainty?” he says. “I think Choosing Wisely is a great idea, looking at the evidence and expert opinion, and letting people know you don’t have to do x, y and z, because there’s no benefit to the patient. There may be harm.”

Roberts illustrates the idea that communication with patients is key: “Imagine I’ve been your family doctor for years, helped you, your kids, your husband. We’ve had this relationship over time, and one of your kids comes in with an ankle sprain. I say, ‘I don’t think [your child] needs an X-ray right now.’ I say, ‘I’m here tomorrow, you have my cell phone.’ My patients know we’ll be closely connected until the situation is resolved, even if they don’t get every test.”

Roberts says when he is taking care of patients one-on-one, he doesn’t want his thinking clouded or his decisions skewed by worries about legal issues that he is unable to predict or control.

“If you want to fix defensive medicine, develop trusted therapeutic relationships using effective communication skills and be available to patients, period,” Roberts says. “And then practice medicine using the best science available. That to me is about as good as it can get for a doctor. You can’t consistently look at the lawyer behind you or you’ll run into the wall.” 

Source: Medical Economics