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Defensive medicine widespread among Massachusetts doctors

The state medical society is calling for tort reforms to address costs, access and safety issues associated with medical liability fears.

By Amy Lynn Sorrel — Posted Dec. 29, 2008

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Lawsuit fears continue to drive Massachusetts physicians to defensive medicine practices, costing the state's health care system $1.4 billion annually and limiting patient access to care.

So say the results of a Massachusetts Medical Society survey that asked state doctors in eight specialties how the current medical liability system affects their work.

Of the 900 doctors who responded to the questionnaire, 83% said they practice defensive medicine -- for example, by ordering additional tests, procedures, hospitalizations or referrals -- to avoid liability risk. Thirty-nine percent have reduced the number of high-risk services or procedures they perform for fear of being sued, an approach most commonly taken by ob-gyns, and general and orthopedic surgeons.

Those sentiments were echoed by physicians nationwide in a survey released in November 2008 by the Physicians' Foundation, in which doctors ranked medical liability and defensive medicine high on their list of practice pressures. The findings of both surveys come as physicians look for solutions to reduce medical liability insurance premiums that have hit some of their highest levels in Massachusetts and other states in recent years.

The Massachusetts study, also issued in November, highlights the need to overhaul the medical liability system for the sake of patient safety, as well as access to care, said Alan C. Woodward, MD, past president of the state medical society.

"We know [defensive medicine] is having an impact on our current and future work force, and, in addition to compromising access, the cost is making health care unaffordable for everybody," he said.

Study authors said the roughly $1.4 billion annual expense likely underestimates the scope of the issue because the eight specialties analyzed -- anesthesiology, emergency medicine, family and internal medicine, general surgery and neurosurgery, orthopedics and obstetrics-gynecology -- represent only half of the state's physicians. Nor does the figure include other defensive practices, such as unnecessary prescriptions.

"If we are going to have an efficient, patient-centered system, we need to deal with the overuse, misuse and underuse of resources, and the driving force is defensive medicine," Dr. Woodward said.

Under a legislative proposal sponsored by the state medical society, doctors envision a system that would allow physicians to openly discuss adverse events with patients, while precluding any apology or sympathy statements from being used in legal proceedings. The measure -- expected to be introduced this month -- would require a six-month notice period before a claim is formally filed, giving parties an opportunity to settle through mediation or arbitration without going to court.

The American Medical Association continues to advocate for medical liability reform at the state and national level. AMA Board of Trustees member Peter W. Carmel, MD, said defensive medicine "is an unfortunate outgrowth of our country's broken liability system, which is in dire need of reform to preserve patient access to care and keep physicians practicing medicine."

Trial lawyers raise objections

But the trial bar was skeptical of the survey's findings, while raising objections to some of the medical society's approach to reform.

"I would question how physicians can order unnecessary tests and be permitted to do so," said Mary Jane McKenna, president of the Massachusetts Academy of Trial Attorneys.

She said physicians' perceptions of overzealous liability threats were unwarranted and called the results misleading. "People filing these cases have a significant burden to overcome. The bar is really high, and cases are scrutinized very carefully," starting with pretrial screening panels mandated by state law.

A 2004 review by the Congressional Budget Office also found "weak or inconclusive" evidence about the effects of defensive medicine on liability insurance premiums, McKenna noted. The same study concluded that such defensive practices may be motivated more by financial, rather than legal, concerns, and any supposed savings from reducing defensive practices would be minimal.

McKenna said the trial bar has long been a proponent of arbitration and mediation where appropriate. "But the idea of being straightforward and honest is not novel and should not be protected."

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ADDITIONAL INFORMATION

Keeping lawsuits at bay

Of 900 surveyed doctors in Massachusetts, 39% have reduced high-risk services or procedures for fear of being sued. That rate is higher for surgeons, particularly orthopedic surgeons, and for ob-gyns.

Reduced in past five years
High-risk services High-risk
patient load
All specialties 39% 28%
Ob-gyns 54% 44%
Orthopedic surgeons 55% 42%

Source: Massachusetts Medical Society, Investigation of Defensive Medicine in Massachusetts, November 2008

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A defensive stance

Eighty-three percent of Massachusetts physicians recently surveyed said they engage in defensive medical practices, estimated to cost $1.4 billion. Here's a look at some specifics.

Ordered for
defensive reasons
CT scans 28%
MRIs 27%
Ultrasounds 24%
Specialty referrals 28%

Source: Massachusetts Medical Society, "Investigation of Defensive Medicine in Massachusetts," November 2008

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