Lawsuit fears drive doctors to play it safe


MOUNT KISCO, N.Y. — Dr. Michael Rosenberg can’t help but look at some of his patients and wonder if someday they’ll sue him, potentially putting his livelihood as a plastic surgeon in jeopardy.

‘In the course of deciding what’s really best for your patient and what you want to do, sometimes you find yourself thinking, ‘How could I possibly be second-guessed?’ Dr. Rosenberg said during an interview at his office in Mount Kisco, N.Y. 

Many physicians say that in trying to treat their patients, they practice ‘defensive’ medicine — over-ordering tests, over-referring patients to specialists, or over-prescribing medication — only to fend off lawsuits in case something goes wrong.

Doctors say they are in a difficult position because they want to protect themselves against legal vulnerabilities, and at the same time not over-prescribe expensive medical testing such as MRIs and CAT scans, which insurers monitor for unnecessary usage.

‘Sometimes we end up being in a position where we feel like we have to do things a little more defensively than would be ideal in the best of all possible worlds,’ said

Dr. Rosenberg, the president of the Medical Society of the State of New York. ‘Where that comes in is the test that should be ordered every 12 months but is ordered every six months, or the antibiotic [prescribed even though] maybe you’d ideally wait a day and see if it is necessary.’

Steve Collier, a Toledo lawyer who has represented malpractice plaintiffs for 27 years and lectured medical students on the law at the University of Toledo Medical Center, the former Medical College of Ohio, for the past 17 years, said doctors can avoid malpractice concerns by practicing ‘the standard of care’ determined by their peers.

‘I think they should be treating everybody as if it is their own family member,’ said Mr. Collier, who also served on the Ohio Medical Malpractice Commission.

‘And that’s a really good rule of thumb to go by. If you would want your own family member to go to the specialist to make sure [of a diagnosis], then that’s what you should do with everybody else,’ he said. ‘But most of the time, it may not be good to go to a specialist, and then they should use their own judgment. Time and again, the juries favor them when they do that.’

He added, ‘It’s only when you have these really outrageous situations that you have jury verdicts that are in favor of the plaintiff.’

A 2005 study of 824 Pennsylvania doctors showed that 93 percent of respondents reported that they sometimes or often practiced ‘defensive medicine,’ according to a study published in the Journal of the American Medical Association.
A report by PricewaterhouseCoopers’ Health Research Institute, released earlier this year, placed the amount spent by physicians practicing defensive medicine at $210 billion.

Dr. Paul Fortgang, an ear, nose, and throat specialist in southern Connecticut, said defensive medicine is responsible in part for the increased spending on health care.

‘It controls the way you practice,’ said Dr. Fortgang, a physician for 22 years. ‘People will argue it gives you good medicine, but it is past the point of that. It is just absurd.’

He added, ‘With the malpractice environment, everything you do you can be sued for. What’s happened is the fear of lawsuits is so pervasive everywhere that everyone is ordering millions of tests because you can’t go wrong ordering a test.

God forbid something comes up five years later, and you didn’t order the test, they can come after you.’

Dr. Fortgang said specialists are referring patients to each other to give themselves cover in case they miss something in a patient’s test. For example, a neurologist will notice a tiny sinus cyst in a CAT scan of a patient’s head, and he’ll then refer the patient to an otolaryngologist for a consultation, he said.

‘He doesn’t want to be the one to make that call if four years from now it turns out to be a tumor of the sinus,’ Dr. Fortgang said. ‘He’ll be crucified for that.’

Malpractice lawsuits have been of grave concern to doctors in Ohio in recent years.

The American Medical Association and the Ohio Medical Malpractice Commission both said the state was facing a malpractice crisis.

Ohio lawmakers addressed medical malpractice concerns in 2003 by passing legislation to cap noneconomic damages at $1 million in catastrophic cases and $500,000 in less severe cases.

Before state legislators acted, Dr. Pamela Galloway and her husband, Dr. Chris Magiera, made up their minds to move their practices from Cleveland to Wausau, Wis., in hopes of finding a better malpractice climate. Dr. Galloway, a surgeon, was sued four times before making the decision to move.

Dr. Galloway said being sued not only was draining, but it served as a constant distraction in that there’s a lingering uncertainty about how the lawsuit will turn out. Malpractice cases sometimes take years to litigate.

‘[In Wisconsin] people don’t practice as much defensive medicine,’ Dr. Galloway said. ‘They just practice medicine.’

Contact Steve Eder at: or 419-304-1680.

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