Fearing suits, doctors use defensive medicine Expensive tests and scans become part of legal strategy

THE BALTIMORE SUN

Dr. Thomas Ducker says 30 years of treating people's head, neck and back pains have taught him to recognize a patient's tension headache without ordering an expensive brain scan.

So what does the Annapolis neurosurgeon do when all his instincts and experience tell him a patient is suffering from stress, not a brain tumor?

He orders a CT-scan, a $400 picture that he's sure will prove him right better than 99 percent of the time.

For every 100 patients with all the signs of tension, he will order $40,000 worth of tests. Perhaps he'll find one tumor, he says, and in all likelihood it will be benign. In a simpler era, Dr. Ducker wouldn't want any of the patients scanned unless they developed more serious symptoms.

Now, he tests them all.

There are many reasons he does it -- patients, for one, have come to expect the fanciest diagnostic tools available -- but he says the fear of getting sued is the main force driving him to lean so heavily on tests.

"They're expecting me to do something and they will shop around until they get the scan. So why not do it?" said Dr. Ducker, 55, the former chief of neurosurgery at the University of Maryland Medical Center. "You've got a society that wants all the answers. And if you're wrong, you've got lawyers who are looking for business."

From family doctors to neurosurgeons, doctors say they are forced to order expensive scans, blood work and urine tests just to protect themselves from lawyers and their clients. In such cases, tests are less diagnostic tools than legal records -- charts and pictures that establish what they knew and when they knew it.

Fear of malpractice has even driven doctors to perform unnecessary surgery.

The classic example is the Caesarean section -- a surgical method of rescuing a baby who could suffer brain damage or other medical complications if delivered vaginally.

In New York, a recent study found that obstetricians are most likely to perform Caesarean sections in regions where the risk of getting sued is highest.

In Maryland, a quarter of all babies are delivered surgically, a rate considered twice as high as is medically justified.

It's not only specialists who feel the pressure to practice defensively.

Dr. Alan M. Davick, a Cockeysville pediatrician, said he used to tell a patient suffering from abdominal pain to watch for certain symptoms if, upon physical examination, he didn't think there was a serious problem such as a tumor or stone.

Now, rather than relying on time and judgment, he might order ultrasound ($150), blood work ($40 to $50) and urinalysis ($10 to $15) as a matter of routine.

"It was viewed that there was a social contract between doctor and patient," said Dr. Davick, in practice for 25 years. "The doctor provided information, the patient provided compliance and respect. And the doctor was available for the patient to call back.

"Nowadays, we have to document the directions that were given, call the patient back, even send over an ambulance to the house if we can't get a hold of them. Nowadays, we rely on the lab tests and less on the patient."

He said he used to keep a child's medical file on just a few index cards. Now, he is forced to keep cross-referenced records of each child's immunizations -- recording not only the dates and types of immunization, but also the brand names and lot numbers.

Nurses and secretaries also record each lab result, phone message and response to a worried parent's telephone call.

A 3-year-old's record can occupy many pages. Some of this is good medicine, he admits, but much of it is legal protection against a parent's suit for a real or imagined error.

"I think the lawyers are very protective of their source of income," Dr. Davick said. "We can look at the TV and see them advertising. Some of the most obnoxious situations were almost inconceivable 10 years ago -- showing a wheelchair and indicating that if your child has CP [cerebral palsy] your physician made a big mistake."

'Hugging a cloud'

This year, physicians will pay an estimated $9 billion in malpractice insurance premiums, but many analysts say doctors ring up a far bigger tab with unnecessary practices that are rooted in their fear of litigation.

Earlier this year, Lewin-VHI Inc., a private consulting firm in Fairfax, Va., estimated that defensive medicine cost $25 billion in 1991.

The nation, it said, could save $36 billion over a 5-year period by taking steps to eliminate the wasteful practices.

Critics argue that defensive medicine doesn't occupy a major slice of the national health bill, even if one accepts hefty estimates.

If the nation managed to trim $36 billion over five years by limiting defensive practices, the savings wouldn't reach 1 percent of total health costs.

And cost estimates vary wildly, from a fraction to many times the Lewin figure.

One reason is that it's extremely difficult -- some say, impossible -- to separate defensive practices from legitimate efforts to catch elusive tumors, obstructions and ailments.

"It's like hugging a cloud," said Linda Lipsen, legislative director with Consumers Union. "It's really tough to figure out what's defensive medicine and what is the good practice of medicine. So I think doctors have used the term brilliantly. It's used to cast doubt on the [malpractice] system when it is a favorite whipping boy."

While doctors perceive themselves as unfairly preyed upon, reality may be quite different.

A recent Harvard study found that roughly 15,000 people across the country suffer permanent or disabling injuries each year as a result of negligent hospital care.

Only a quarter of the seriously injured patients received compensation through a malpractice verdict or settlement. When all injuries great and small are considered, the rate falls to one in 15.

In a different study of 8,000 malpractice cases in New Jersey, researchers found medical care was, in fact, substandard in most cases where patients won judgments. Conversely, doctors usually prevailed when evidence showed they treated their patients properly.

Not surprisingly, malpractice attorneys deny doctors' charges that they drive up the cost of medicine by feeding the public's appetite for big payouts.

"Overwhelmingly, verdicts come back in favor of the physician," said Marvin Ellin, one of Maryland's top malpractice attorneys.

"That's why I'm saying the effort to tie malpractice to medical costs is absolutely without a basis. I reject it out of hand. I become enraged when I'm even asked about it. I'm driven up the wall when I hear about the cost of medicine."

Mr. Ellin said malpractice reforms such as Maryland's $350,000 cap on awards for "noneconomic" damages -- such as emotional distress or disfigurement -- have actually eased pressures on doctors to practice defensively.

Despite this, he calls the cap an "obscene" measure that minimizes the wrong done to patients who must spend the rest of their lives blind, paralyzed or brain damaged because of a doctor's negligence.

Across the nation, state legislatures have accepted doctors' arguments that they are victimized, and have enacted legal remedies to reform the malpractice system.

In Maine, for instance, a doctor cannot be held liable for a baby's birth defects if the obstetrician followed an approved protocol when treating the pregnant woman and delivering her infant. It is part of a five-year plan to establish treatment guidelines for a host of conditions.

'Enterprise liability'

Hillary Rodham Clinton's health care task force is considering a proposal called "enterprise liability." Instead of suing doctors, patients would sue institutions such as the physicians' health plans or hospitals.

Paul Weiler, a Harvard law professor who proposed it, said the plan would lower the per-doctor insurance costs by spreading premiums more broadly across institutions.

At the same time, it would more fairly compensate victims because institutions could afford insurance with higher liability limits.

While specialists in lawsuit-happy states like Florida and New York have been known to pay upward of $100,000 a year in malpractice premiums, Mr. Weiler said, some profoundly injured patients are inadequately compensated because of policies with $1 million limits on payouts.

Mr. Weiler said the best feature is that it would give hospitals a financial incentive to raise quality and police the doctors who work there.

But he said it may have little effect on defensive medicine, since doctors would worry about getting fired by institutions sued on their behalf.

Also, whoever is being sued, the lawsuit would bring the same indignity to the doctor whose competence is questioned.

"The fact is, the reason why doctors act defensively is that they don't want someone charging them with causing negligence. It's not simply the loss of reputation, it's the emotional distress and the hassle."

To curb defensive practices, he envisions a no-fault system that would function much like workers' compensation.

Plaintiffs would merely have to prove that an injury resulted from medical care -- not that a doctor did anything wrong, say, by straying from accepted standards of care.

Compensation would be spelled out in a schedule of benefits -- a fixed amount for a specific injury. In theory, this would reduce the highest payouts while raising unfairly small ones.

Mr. Weiler said a no-fault system is not a priority item on the Clinton plate, but he hopes Congress will pass legislation that would allow hospitals to buy no-fault coverage if they choose.

Blaming lawyers

In the meantime, doctors speak nostalgically of the day when physicians and their patients simply trusted each other.

Hospitals and insurance companies require that doctors attend risk-management seminars every few years to sharpen their skills on the records, tests and procedures they must keep to fend off lawsuits.

If they don't attend, hospitals can revoke their privileges or insurers can cancel their coverage.

"They suggest you be more careful in recordkeeping, going to the extreme of writing down hundreds of procedures and observations that cover every possibility," Dr. Davick said. "And doing hundreds of lab tests that cover everything. And raising the level of anxiety on the part of the physician regarding the possibility of lawsuits."

At the Greater Baltimore Medical Center, Dr. Claudius Klimt says his experience has taught him to recognize a harmless bump on the head without ordering a series of X-rays to make sure the patient didn't suffer a brain injury.

But that doesn't stop him from ordering the "films" anyway, at about $100 a series.

Dr. Klimt, who is chief of emergency medicine, says his department orders five to seven head X-rays a day, and most are medically unnecessary. He says it's not cost-effective medicine -- the chances of his judgment being wrong are small -- but a voice inside his head reminds him to augment medical wisdom with legal smarts.

"We like to blame lawyers, and they certainly encourage [litigation] and make a nice living at it," Dr. Klimt said. "But the general basis for it is in the population. I've had patients respond as follows if I use my judgment to make a diagnosis: 'I hope you're right. Because if you're not, I'm rich.' "

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