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Physicians and hospitals often blame the legal system, particularly medical malpractice lawsuits, for the soaring costs of health care.  Health care reform is always on someone’s political agenda along with new ways to lower costs.  One such method was recently discussed in a New York Times article by Peter Orszag.  And so the argument goes, doctors and hospitals need to protect themselves from medical malpractice suits, and therefore order excessive tests and treatments for each patient, to ensure they cover all bases.  This practice increases the cost of health care.  On some level, this makes sense.  The nightmare scenario for any doctor is to have not done the one test that could have cured their patient, then be sued for it.  Therefore, proponents of medical malpractice immunity for doctors argue that if they are immune from medical malpractice lawsuits, physicians will provide treatment based only on the symptoms their patients present (called evidence-based medicine), which means less frivolous testing, and in turn lower health care costs.

This is not to say, all doctors will be immune from medical malpractice suits. The proposition of physician immunity from liability depends on guidelines that set out what it means to practice “evidence-based” medicine.  Doctors who deviate from these guidelines are open to liability, those who follow them are immune.  For example, if the guidelines provide a certain treatment X for a specific illness Y, the doctor who provides X treatment to a patient with Y illness will not be liable for medical malpractice. It is thought that this will lower costs by preventing the practice of defensive medicine while simultaneously promoting best practices in medicine and improving health care.

But as good as the above sounds, it does not hold weight in reality.  An excellent rebuttal to the New York Times Orszag piece appeared in the December 2, 2010 edition of Neurology Today.  In particular, neurologist and lawyer James C. Johnston points out the flaws in the idea that granting doctors immunity from medical malpractice lawsuits will lower health care costs, “[it lacks] an understanding of how guidelines relate to medical practice and confuses the legal concepts of immunity and affirmative defense.”  This is because with the aforementioned system, all a doctor would have to do is state the guidelines were followed, and the lawsuit would be dismissed.  Professor of neurology at Harvard Medical School, Louis R. Caplan, rejects the idea entirely, “It’s an interesting idea… but practically it’s not the kind of thing that would work…you can’t pass a law saying people can’t sue.  I’m very much for malpractice reform but I think this reform wouldn’t work.”  Similar sentiments are held by H. Richard Beresford, a neurologist/lawyer and professor at Cornell Law School, “practice guidelines are seldom specific enough to support or discredit a particular diagnostic or therapeutic choice, and may not be relevant or reliable enough for admission into evidence.”

The healthcare industry made $2,316,000,000,000 in 2008.  Of that, medical malpractice accounts for 2.4% of health care costs or $55.6 billion, a fraction of the costs in the industry.  Further, there are other more probable reasons for ordering excessive tests beyond fear of medical malpractice, “some neurologists never want to leave stone unturned so they order a lot of tests, not necessarily because they’re thinking of malpractice, they’re just compulsive and detail oriented.”  Not to mention the peace of mind the extra tests bring to both patients and doctors that they are not somehow missing a possible diagnosis.  Patients have come to expect thorough testing by doctors and doctors aim to meet those expectations.

And defensive medicine is not necessarily a bad thing according to Dr. Johnson,

I would argue that some defensive medicine practices have the effect of injury prevention… if I go to the doctor I want him or her to spend more time with me, keep better records, and promptly refer me to a specialist.  These are all components of defensive medicine. It is impossible to separate good from bad defensive medicine.

Ultimately, defensive medicine provides more benefit than harm, and evidence-based guidelines do not offer any more solutions to lessening health care costs through medical malpractice immunity. In fact, evidence-based guidelines fail to offer physicians protection from medical malpractice suits because the only parties that use them are defendant doctors. This means that doctors use them as a defense, not that plaintiffs use the failure to follow the guidelines against doctors.

Evidence-based guidelines have also not been proven to improve the quality of care and reduce errors, according to Dr. Gary Gronseth, professor and vice chair of neurology at the University of Kansas Medical Center and formed chair of the AAN Quality Standards Subcommittee. The nature of the practice of medicine must leave room for doctor discretion and individual judgment. An example of a strong guideline is the administration of tPA (or clot-busters) within 4.5 hours of the onset of an ischemic stroke. But even with such strong recommendations, doctors still have the last call as to whether they will administer the tPA after the 4.5 hour limitation. Dr. Gary Gronseth aptly summarizes this practice when he says, “much of the practice of medicine is evidence free because there’s insufficient evidence.” In other words, many patients don’t demonstrate the evidence of their afflictions or manifest different symptoms than the textbooks prescribe.

So if immunity from medical malpractice lawsuits for doctors will not have much effect on the costs of health care, the question remains: what will? The physicians interviewed for the December 2, 2010 Neurology Today article suggest looking to both financial and other incentives for ordering tests or as Dr. Gronseth put it, “it’s an economic issue and it needs and economic solution. The emphasis on quality is important for other reasons, but I don’t think it will bring down health care costs.”

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