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Could Defensive Medicine Actually Lower Medical Malpractice Claims?

By Anupam B. Jena, MD, PhD to Defensive Medicine


Could Defensive Medicine Actually Lower Medical Malpractice Claims?

Our guest on Healthcare Matters is Anupam B. Jena, MD, PhD, one of the authors of the study Physician spending and subsequent risks of malpractice claims: an observational study, which was published in The BMJ in November 2015. Dr. Jena sat down with Healthcare Matters to discuss the study's results, methods and limitations as well as its implications for research on defensive medicine and healthcare spending. Dr. Jena details how the study shows a correlation between increases in physician spending and a lower likelihood for that physician to be subsequently sued for malpractice. Though the study has several limitations which are addressed during the interview, it helps to shed light on important aspects of healthcare spending, the doctor-patient relationship and the difference between appropriate healthcare spending and defensive medicine. This is the full interview with Dr. Jena. To view each portion of the interview separately, please use the links below.

  1. Does Defensive Medicine "Work"?
  2. Greater use of Resources vs. Defensive Medicine: What's the Difference?
  3. The Link between Physician Spending and Medical Malpractice Claims
  4. Medical Malpractice Claims and the Doctor-Patient Relationship
  5. Physician Spending, Patient Outcomes and Future Research
  6. How can we differentiate between defensive medicine and “good” medicine?
  7. Fee-for-Service vs. Outcome-Based Models and the Effect on Healthcare Costs
  8. Could Defensive Medicine Actually Lower Medical Malpractice Claims?
This interview is brought to you by Cunningham Group, the Medical Malpractice Insurance Specialists.


Mike Matray: Hello and welcome to “Healthcare Matters”, the internet television program that explores the intersection of medicine and the law. I’m your host Mike Matray and today’s guest is Anupam Jena M.D. and PhD. Dr. Jena is an associate professor of healthcare policy and medicine at Harvard Medical School and an assistant physician in the Department of Medicine at Massachusetts General Hospital where he practices general inpatient medicine and teaches medical residents. Dr. Jena’s research involves several areas of health economics and policy, including medical malpractice, the economics of medical innovation and cost effectiveness, geographic variation in medical care and insurance benefit design. Using unique data, Dr. Jena’s work on medical malpractice has provided new estimates of medical malpractice risk according to physician specialty, the cost of defending malpractice claims and outcomes of malpractice claims undergoing litigation. Welcome to “Healthcare Matters”, Dr. Jena.

Dr. Jena you’re here to discuss an observational study you conducted on physician spending and subsequent risk of malpractice claims, which was published last year in the BMJ Medical journal. A good place to start would be what was your initial study question and methods?

Dr. Jena: So defensive medicine is reported to be practiced by somewhere between 60% and 90% of physicians, if you look at surveys. And what defensive medicine means is it’s the ordering of tests and procedures solely to reduce the threat of malpractice liability. And there have been a number of studies which look at whether or not doctors in fact order more tests and procedures because they’re worried about liability threats. But there really has not been any work to understand whether or not it’s even possible that defensive medicine could “work,” meaning that if a doctor orders more tests and procedures, is he or she less likely to get sued? And that was a question that we set out to answer.

Mike Matray: Your study looked at whether a greater use of resources by a physician reduced the risk of a malpractice claim. In discussing your study with people within the medical professional liability industry, many conflated greater use of resources with defensive medicine. Is this a fair conflation, or is there a difference between greater use of resources and defensive medicine?

Dr. Jena: Yeah, no there is actually a difference. So, let me give you an example. If a malpractice environment leads a physician to order colonoscopies more appropriately than he or she had been doing before, and what you find is that cancer screening rates go up and that patient outcomes improve, we wouldn’t call that defensive medicine. That’s actually the intent of the malpractice system to get physicians to practice appropriately. Defensive medicine means something different.

Defensive medicine means additional tests and procedures that are done that actually deliver no benefit to the patient. And so to the extent that greater use of healthcare services actually improves patient outcomes, we don’t want to call that defensive medicine. It may reduce liability, but we should be specific not to call that defensive medicine. That’s actually good medicine.

Mike Matray: Okay. Your study indicated that a greater use of resources can be an effective tool to reduce the likelihood of a malpractice claim. Is this a fair statement and can you expound upon it?

Dr. Jena: That’s a great question. In our study, it’s the second. We show two things, one is that doctors who spend more after you account for differences and the types of patients that they see, doctors who spend more are less likely to get sued. The second finding is that even if you look at the same doctor over time, when a doctor spends more in those years, he or she is less likely to be subsequently sued in the following years compared to periods in their life as a practicing physician when they spend less. So in other words, we’re using the doctor as their own control to study what happens to rates of lawsuits during periods in which they spend more or less.

And the third finding of the study was that we looked at a specific clinical example of C sections. C sections have often been argued to be defensively motivated, and we know that in the United States, rates of C sections are quite high, on the order of 30% of all births. And what we found is that doctors who perform higher risk-adjusted rates of C sections are also less likely to get sued. And so all of this simply suggests that doctors who spend more and do more are less likely to get sued. But a main limitation of the study is that we couldn’t…we didn’t look at outcomes, and so it’s hard to say whether or not what we’re identifying is truly defensive medicine, or whether it’s just that this is better medicine, at least in better outcomes, and therefore lower rates of lawsuits.

Mike Matray: With hindsight, what was the most surprising or illuminating conclusion you and your associates found?

Dr. Jena: So I think the most interesting thing is that there appears to be this potential link between spending more and getting sued. There are a number of reasons why you might think that there should be a link. For instance, one might think that the reason that doctors get sued has very little to do with the number of tests or procedures that they order, but has more to do with the relationship that they have with the patient. And if that were the case, then we wouldn’t expect to see any relationship between the general level of spending of a doctor in his or her lawsuits. But none the less, we do find it. We do find that doctors who spend more get sued less often.

And so that certainly does suggest a possibility that spending could have a deterrent effect on suits, whether it be through a defensive mechanism, in which case patients may be less likely to sue a doctor because they thought that all exhaustive options were done, or whether it’s through a what I would call a “good medicine mechanism”, in which case better outcomes actually resulted in the doctor was sued less often.

Mike Matray: Okay. I’d like to drill down and follow up on that, because one of the beliefs within the medical liability community is a lot of times whether a physician faces a claim or not, is dependent upon his or her bedside manner or relationship with a patient. Are you saying that isn’t the case?

Dr. Jena: No, it certainly could be the case, but I think it’s really important to try to bring the best data available to bear on this issue. So that’s a hypothesis that I think has a lot of face validity. I certainly believe it, and I think few would disagree that it’s probably an important mechanism behind why patients sue doctors is the lack of a good relationship. But none the less, at the end of the day, this isn’t a theoretical question, this is an empirical question. So we’ve got to look at the data and say, “Well, what does the data bear out?” And unfortunately, there isn’t a lot of high quality data one way or the other, to support the view that it’s the quality of the relationship between a doctor and a patient that leads to lawsuits.

There is some data, but I wouldn’t call it definitive by any means. And to be fair, I wouldn’t call our own analysis to be definitive. I think what it is, is a first attempt to try to understand whether factors that many doctors argue to be important in driving their liability actually bear on the data.

Mike Matray: If this is an empirical data-driven study, what were the limitations of the data that you collected?

Dr. Jena: We have a few limitations. So the first is that we can’t really ascertain whether or not this relationship is a cause and effect relationship. And on top of that, even if it were a cause and effect relationship, we couldn’t say whether it’s because of good medicine that is leading to better outcomes and patients suing less often, or whether it really is truly defensive medicine, in which case doctors are spending more, outcomes aren’t changing and patients are suing less often because they believe that more was done. So in a sense, patients are more convinced. And the reason that is a problem is because there are far cheaper ways to reassure patients that the best possible care was delivered, then ordering a CT scan, or MRI, or an additional consultation. That’s just not the way to do it I think, from a cost perspective.

And I think the second limitation was that our analysis, although it’s the first analysis of its kind, was restricted to data from Florida. Florida is a different state than other states in its malpractice environments, and I think people who have read the paper would recognize that. But none the less, what was needed to do the study was two pieces of information. We needed to know what kinds of patients a doctor treats, and what the outcomes of those patients were, and we needed to know whether or not a physician had been sued before. And data on those two facts are generally very difficult to find in isolation, much less linked together. And Florida provided a unique case study where we could actually put those two pieces of data together. And so it really is a first of its kind analysis, but it does have limitations.

Mike Matray: Obviously, the biggest event in healthcare recently has been The Affordable Care Act of 2010, and one of the drivers of the legislation is that the healthcare delivery system is too expensive. If we’re trying to get a more efficient, less expensive system, and your study indicates there could be a correlation between defensive medicine or a greater use of resources per patient, how do we get physicians to be more cost effective in their practice and medicine?

Dr. Jena: That’s a terrific question, and my sense is that malpractice has been one of those issues that is preliminary on the mind of physicians. It seems to come up in almost every single election. And part of the reason could be that physicians are reluctant to constraint-spending because of these malpractice concerns. There are a number of reasons why physicians would be reluctant to constraint-spending, one of which is because spending is what actually drives their incomes, and could imagine that would be a sticking point. But aside from that, I think our study suggests at least it’s a possibility.

It’s at least a possibility that as we start to ask physicians to reduce spending, there could be unintended consequences. And again, I want to be careful to say that our study isn’t definitive evidence of it, but it does at least suggest that this is something that we should be monitoring for, something that we should watch out for and hopefully it won’t be a result of healthcare reform. I certainly don’t want it to be. But none the less, that’s the purpose of the science is to try to give us insights into what we should be watching out for.

Mike Matray: I had the opportunity to interview Dr. Richard Anderson on this program. Dr. Anderson is the CEO of the medical malpractice insurer The Doctors Company, and considered a foremost authority on defensive medicine. We discussed your study, and he had the following to say:

“Using a very sophisticated statistical analysis, the authors found data that they believe supports the notion that defensive medicine does reduce liability. And here I’m not so sure that that’s true. Again, if you take my definition of defensive medicine, a test, procedure or therapy that is ordered by the physician primarily to protect themselves from liability rather than because of its diagnostic or therapeutic utility, it can’t be true. In other words, if it is the right test or therapy to order in the first place, then it wasn’t defensive. Then ordering a test that isn’t the right treatment is not going to reduce your liability. So almost by definition, what they say can’t be true, but it shows how difficult it is to separate all of these factors out.”

Would you agree with that statement?

Dr. Jena: So actually, I couldn’t agree more. I think he hit the nail on the head. Dr. Anderson’s definition of defensive medicine is I would say, is the widespread definition of defensive medicine. Defensive medicine, again, is additional spending that delivers no benefit to patients, but just cost to healthcare system money. And all we see in our study is that physicians who do cost the healthcare system more money get sued less often. And without, unfortunately, looking at outcomes, and that is something that we’re doing right now in subsequent work, without actually measuring whether or not the outcomes of these patients was better or not, it’s really impossible to say whether or not this is truly defensive or not.

But that being said, I don’t want to sell our results too short. What we do find is that doctors who spend more get sued less often. And from an individual practitioner’s perspective, if you actually believe the results, it’s not entirely clear to me that they should be worried about whether or not it’s good medicine that’s driving this relationship, or whether it’s defensive medicine that’s driving the relationship. From the point of care perspective of a doctor, if you believe these results, then their only decision is that at the margin, “Should I order this test or not?” Not only could it give you more information that helps them make a better clinical decision, that’s possible, but there’s also this possibility that irrespective of whatever clinical insight I might get from this decision, it might actually be more reassuring to the patient that this test was appropriately done.

And so at the end of the day, I think it’s important to parse out these differences, whether or not this is wasteful spending/defensive medicine, or whether or not this is good medicine. But again, I think, what I take from this paper is that this is really the first attempt to do this, and to highlight how these two different databases can be used to answer a question I think is really a fundamental importance to medical malpractice.

Mike Matray: A little earlier we talked about how perhaps one of the drivers behind a physician’s greater use of resources is that he or she is compensated for that care. As The Affordable Care Act moves us out of a fee-for-service towards an outcome-based reimbursement model, do you see driver being weaned out of the overall cost of the healthcare delivery system?

Dr. Jena: So I think that the various healthcare reforms that have been enacted in the last few years and that will continue to be enacted, for example through paying physicians for the value of care that they provide, as opposed to the volume of care that they provide, I think all of these reforms do act to mute the impact and financial incentives on positions. But none the less, I think that the impact of the fee-for-service system is not as great as we think it is, and what I mean by that is the following. If you look across the U.S., among doctors who are paid the same way, meaning they’re paid by Medicare on a fee-forr-service schedule, you see that there’s tremendous variation in healthcare spending for a similar medicare beneficiary. And what that tells us is that doctors who are paid the same way respond very differently in terms of how much care they provide. So could it be that this all is driven by differences in “greediness” across areas? Yeah, that’s possible.

I don’t think that’s what it is. There is an important black box in physician behavior that we have really not begun to even think about, much less touch. And one component of that is how is a physician’s level of risk tolerance? For instance, I might be more willing to take risks than a colleague of mine, and that might mean that I’d be less likely to order a CT scan, whereas they’d be more likely to order a CT scan. There are differences in education, there’s differences in where a physician’s trained.

So there’s a lot of things that go into a practice style in a way of delivering care that are completely separate from how a doctor’s paid. I think most healthcare economists and policy makers would agree that paying physicians for the value of care that they provide as opposed to on a fee-for-service basis would be an improvement. I think few people would disagree with that. But I would say that that’s not the only driver, it may not even be the main driver of why physicians differ in their practice styles.

Mike Matray: What are some of the conclusions that you would like a physician to take from your study as far as practicing defensive medicine or trying to reduce the overall expense of the healthcare system? What is your number one overriding goal that you would like to impart on the United Sates physician community?

Dr. Jena: I think that the overarching goal is to view this evidence in a fair light. And what I mean by that is the following. It makes complete sense that lawsuits could be related to the relationship between a physician and a patient. Makes complete sense. And physicians shouldn’t look at the study and say that, “Wow, I got sued not because of how I treated the patient in terms of respect and apologizing for a mistake occurred, but I got sued because I didn’t order a test.”

That’s not what I think physicians should take from this. What I think physicians should take from this is that yes, it’s certainly possible that ordering an additional test or a procedure could lower your risk of being sued because you detect something that you couldn’t detect before. And I think as long as people are open to that possibility and say, “Look, it’s not the case that all the healthcare spending is necessarily wasteful,” which is something that we hear often, but it could be the case that in some instances, it actually is beneficial in terms of improving patient outcomes, and there may also be this tangible benefit to physicians of being sued less often. I don’t think physicians should run and change their behavior because of the study, but what I think it should do is at least open up that conversation on a national policy level and certainly in their minds that this is something that we should consider, something that we should watch out for as we start to implement other reforms of healthcare.

Mike Matray: Dr. Jena, it was a fantastic conversation and very insightful. I’d like to thank you for coming out today’s program.

Dr. Jena: Thank you for having me. I appreciate it.