Michael J. Sacopulos, Esq.
According to a poll conducted by the American College of Emergency Physicians, nearly half of emergency physicians, 44 percent, say the biggest obstacle to cutting costs in emergency departments is overcoming the fear of lawsuits. The poll, made up of 1,800 emergency physicians, also found that more than half of physicians, 53 percent, state that the reason they conduct the number of tests they do is due to the fear of being sued.
The study also stated that specialists cite the fear of being sued as one of the top reasons they will not treat emergency patients.
Of these poll participants, over 40 percent believe that the number of patients in emergency departments has significantly increased over the past year. Why are so many people many people visiting the emergency room instead of their primary care doctor or a specialist? Well, the poll participants overwhelming believe it is due to the increase in patients without healthcare coverage.
With unemployment numbers on the rise, one can only speculate that the number of people relying on emergency rooms for their primary care will also rise. Which, will lead to more and more tests being performed by emergency room physicians because they are afraid of being sued. Given the scope and magnitude of the problem, it is difficult to image meaningful healthcare reform without addressing medical malpractice litigation.
So often it kills me to see an analysis of the cost of malpractice to medicine as the sum of the cost of the insurance and the cost of judgements against physicians and out of court settlements. This of course ignores the major cost component of our malpractice system: that with every patient I take care of in the Emergency Department, I have to create a defensible chart, in case the patient has a bad outcome. In the US we admit the majority of patients to the hospital that present with chest pain, if the patient is over 30. That’s about the sum of the algorithm now used by US ED physicians: chest pain + age over 30 = hospital admission. On these patients, less than 1% are having a heart attack, but we admit them all, so if something happens to them in the near future, we won’t be perceived as being liable, because we did everything we could (admitted to hospital.) Its insanity. But that’s because we know of all patients sent home with chest pain, about 1% still have MI’s in the near future, and that is a $1,000,000 at least judgment. Similarly, in studies on pulmonary embolism being done today, about 6% of the studied patients that get a CT rule in for PE. About 20 years ago, the this number was closer to 30% (using VQ scans.) The point is that 20 years ago, 6% was the rule in rate on the “low risk” patients studied, those without risk factors or many other positive findings, before the test was done. That was the population we said then we don’t have to scan at all. So now we are scanning such a high number, our whole patient set is “low risk” by any reasonable standard used in any other country. The majority of CT chest scans would not be done if not for the fact that we can’t “miss” anyone with this disease, or its big money lost in a lawsuit. To catch nearly everyone, we need to cast a hugely wide net. Is this reasonable? In summary, the current system makes us admit and test low probability patients, which is the major driver of excess medical costs in this county.
1) To my view, no study has yet captured the true cost of our medicolegal system. There appear to me to be 4 reasons to do medical tests and treatments:
-(1) The test or treatment is needed to help you make a better decision or to deliver better treatment to patients
-(2) The test or treatment is done/arranged to enhance the care provided by the next doctor who will see the patient (example: Order a Hgb A1C on a pt who has a follow up soon with endocrinologist, order PT-INR on someone scheduled to go to INR clinic in a day or two even if that has nothing to do with the problem which you as doc are addressing
-(3) Patient satisfaction: (ankle radiograph despite that the Ottawa rules say it is needless)
-(4) Medicolegal protection or perceived protection
NO one has yet really captured #3 and #4. Don’t fail to underestimate the Pt Sat issue!
2) The plaintiff’s bar functions to make our economy more efficient in the same manner that barnacles on a ship’s hull make the ship run slower and less efficiently. Plaintiff lawsuits not only drive wasteful and inefficient patient care decisions, they also crimp those who make most products we consume! Ever looked at a stepladder and its labeling lately? Ever look at your McDonald’s coffee cup? Maybe our economy would work better if a more reasonable product liability environment and a more reasonable medicolegal environment existed.