Doctors' fear of lawsuits tied to added costs of $1.4b

By Kay Lazar
Globe Staff / November 18, 2008
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A vast majority of physicians in Massachusetts say the fear of being sued is driving them to order unnecessary tests, procedures, referrals, and even hospitalizations, a phenomenon that is adding at least $1.4 billion to annual healthcare costs in the Bay State, according to a study released yesterday.

The Massachusetts Medical Society reported that 83 percent of physicians surveyed said they have practiced so-called defensive medicine and that an average of 18 to 28 percent of tests, procedures, referrals, and consultations, and 13 percent of hospitalizations, were ordered to avoid lawsuits.

The society said its findings, the first it has compiled on the issue, probably underestimate the cost of the problem because the 900 physicians surveyed, including family doctors, obstetricians, gynecologists, and general surgeons, accounted for only about 46 percent of the doctors in the state.

The findings, which roughly mirror the experience reported by doctors in other states, come amid skyrocketing malpractice insurance premiums for doctors nationwide and a heated debate in Massachusetts and across the country about overhauling the malpractice system.

Among the proposals is capping monetary awards to patients. While defensive medicine has been highlighted as a major driver of healthcare costs by other organizations, some studies, including a 2004 Congressional Budget Office review, question that finding.

But Dr. Alan Woodward, past president of the medical society, said the Massachusetts study dramatically illustrates the need to transform the system to one that is more conducive to doctors admitting mistakes to patients, offering apologies, and engaging in arbitration that offers fair and timely compensation.

"The current liability system is toxic to patient safety," he said.

Patients who undergo unneeded imaging tests, for example, may be exposed to extra risk from radiation and allergic reaction to contrast dyes, Woodward said.

By some accounts, patients expect - and sometimes even demand - treatment that doctors deem marginally necessary. "With our increasing technology, patients want more of a work up. They want the labs, the MRI, the CT scan," said Dr. Manish K. Sethi, the study's lead researcher and an orthopedic senior resident at Massachusetts General Hospital. "You don't think it's indicated but you do it because you are afraid that if on the 1 percent chance there is something and you missed that you are going to get sued."

Concern about malpractice lawsuits has prompted some physicians to become hypercautious. Thirty-eight percent of physicians surveyed by the society said they reduced the number of high-risk services they performed, with orthopedic surgeons, obstetricians, and gynecologists topping the list.

Efforts to overhaul the malpractice system in Massachusetts and nationwide have been stymied. A number of proposals filed by state lawmakers have gone down to defeat, among them one that would mirror a closely watched program piloted at the University of Michigan Health System that encourages doctors and hospitals to acknowledge medical mistakes promptly and to engage in early offers of compensation. The aim is to significantly lessen the time and money spent on medical malpractice lawsuits, which often drag on for years and cost tens of thousands of dollars.

"For most families, it's not about money. It's about knowing the answer. Closure has much greater value to them than damages awarded," said Representative Peter Koutoujian, chair of the Legislature's joint Committee on Public Health.

"It's time to pass this type of legislation," said Koutoujian, who sponsored a similar proposal that was defeated in the most recent legislative session.

State Senator Richard Moore, who chairs the Health Care Financing Committee, said in an e-mail that he intends to file legislation in January that would offer grants to hospitals to create similar pilot programs "so that more people who are injured in the health system actually get their issue attended, and so that the secrecy that surrounds mistakes is made more transparent."

The medical society's study found that 28 percent of physicians surveyed said that liability concerns affected the care they provided "a lot," with emergency room physicians, obstetricians, and gynecologists leading the pack. From X-rays to ultrasounds, it found that roughly one in four doctors said they ordered excessive tests because they were worried about missing something and being sued.

But some lawyers and consumer advocates questioned the study's findings and conclusions.

"The vast majority of people in this country have managed care with utilization review which is supposed to be the flood gates that controls this," said Marc Breakstone, a Boston malpractice attorney with 22 years in the business. "They look at tests that physicians are ordering to make sure the tests and procedures are medically necessary and if they aren't the insurer won't pay for it."

Said Dr. Sidney Wolfe, director of health research at Public Citizen, a national nonprofit consumer advocacy group: "No one denies there is a problem with defensive medicine, it's just that the size of it is greatly exaggerated by studies that have been done."

A 2004 Congressional Budget Office review found "weak and inconclusive" evidence about the impact defensive medicine has on soaring insurance premiums.

"So-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive (albeit small) benefit to patients," it stated. "On the basis of existing studies and its own research, CBO believes that savings from reducing defensive medicine would be very small."

Kay Lazar can be reached at

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