Now one could retort that "catastrophic claims" account for only 36% of total claims over the time period (unduly neglecting the effects of smaller claims up to $1 million) or that the study doesn't include the settlements made with hospitals and healthcare corporations, only individual physicians. But the data are eye opening nonetheless. Total number of med mal cases have been dropping precipitously over the past ten years. The costs of waging a medical malpractice case are prohibitive for most law firms (discovery, expert witnesses, contingency based fees, physicians win 70% of cases that go to trial, etc). So why is tort reform still the linchpin piece of alternative national healthcare reform plans? Why do the GOP and physicians organizations continue to shout from the rooftops that medical malpractice represents the single biggest threat to American healthcare? Why has the refutable become dogma in the minds of otherwise intelligent people?
And what do physicians do to avoid the threat of this med mal crisis? We over test. We over treat. We practice defensive medicine. This is the true monetary cost of med mal fears. In the paper I alluded to above, defensive medicine contributes upwards of $60 billion to total healthcare costs. If the fear is exaggerated, why do we continue to order CT scans on every single patient who complains of a headache? Why does every post op patient with a HR over 100 get a CT angio to rule out pulmonary embolism? Why are all these dehydrated nursing home ladies with coffee ground emesis getting upper endoscopies every other year? What are we afraid of? Why do we continue to perpetuate the practice of fear?
It's been twelve years since the Twin Towers were taken down by a ragtag band of nihilists. Since then we have spent trillions of dollars to avenge that fateful day. We launched wars. We invaded a country that had nothing to do with 9/11. We ventured into the "dark side" and institutionalized barbarities such as pre-emptive war, rendition, indefinite detention in black site prisons, torture, and secret, unaccountable drone strikes against alleged "suspected" militants across the globe. The world is now our battlefield. Zero tolerance for terrorism has become a bipartisan consensus. Risk is not something to be managed judiciously; it must be eliminated altogether. And so we end up justifying the unimaginable---waterboarding, locking people up in a Caribbean Island cage indefinitely without charges, due process free state assassinations, etc etc. And now we are waging full blown drone warfare against targeted "militants" across the globe, shrouded in complete and utter secrecy. Certainly this form of state sanctioned violence mitigates the political fallout from soldiers being shipped back to America in coffins. But the blowback from the Muslim world is unquantifiably immense.
And what is the actual threat of terrorism? According to the Global Terrorism Database, 30 Americans have been killed in terrorist incidents since 9/11/01. And this includes non-Islamist attacks. According to Ronald Bailey and Reason.com:
Taking these figures into account, a rough calculation suggests that in the last five years, your chances of being killed by a terrorist are about one in 20 million. This compares annual risk of dying in a car accident of 1 in 19,000; drowning in a bathtub at 1 in 800,000; dying in a building fire at 1 in 99,000; or being struck by lightning at 1 in 5,500,000. In other words, in the last five years you were four times more likely to be struck by lightning than killed by a terrorist.Similarly, the threat physicians face from malpractice litigation is probably far overrated. And we fail to appreciate our own unintended "blowback'' from the defensive medicine mindset. Our patients are subjected to unnecessary, potentially harmful, testing. We end up referring them for unnecessary invasive procedures. We compromise the sacrosanct doctor/patient relationship by adopting an adversarial, wary posture toward these people who come to us for answers and help. We are so cautious and worried about being sued that we put our own interests above those of the patient. It's sad. I fall into the same trap myself on occasion. And I fear that defensive medicine has transcended being simply a reaction to a perceived threat. At this point it has become reflexive, institutionalized behavior. We order that CT scan not because we are worried about being sued anymore; it simply has become second nature. Just as we now take off our shoes at the airport without even thinking about why and whether it actually does any good.
Risk is ever present, every day in both medical practice and counter terrorism. It lurks on the periphery. The mistake is acting as if risk is something we can eliminate. The more open we are, the more we acknowledge the reality and inevitability of rare breakdowns, the more likely it is we can implement strategies to minimize risk occurence over time.......
How in a "free" society is marijuana illegal too. The SEC owns the big 11,12,13?
I suppose someone could argue that all the money spent on the war on terrorism has been successful in that there have been so few successful attacks and deaths. Just as someone could argue that malpractice cases are becoming less common because doctors are practicing defensive medicine.
I always "go downtown"
As a clinical negligence lawyer really appreciate the insight on defensive medicine. Keep up the good work.
The risk of malpractice is NOT over-rated.
Other aspects beyond the catastrophic claim must be considered. Such as years of preparation for a case, lost time in the office as a result of being in court, depositions, and the like.
Further, this doesn't consider the psychological side of the damage, which can be considerable. I have witnessed a physician, after a suit, become so cautious that he was essentially useless to anyone.
Whenever I hear an attorney say "it isn't personal" I want to forcefully place a brick between his eyes and say "It's OK, I really don't dislike you, it isn't personal".
The number of legal malpractice cases are minuscule compared to medical malpractice. When medical malpractice suits drop to the level of legal malpractice suit, I will consider things to be in balance, not before.
As above, while actual catastrophic sized suits are rare, they occur. Further, even without catastrophic size suits, the effects of a suit are exceedingly disruptive. So efforts to avoid them are taken every second of every day, and these cost money. As an ER doc friend said; "The cheapest malpractice insurance I can get is to order a CT scan"
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