Motivation for Building a “McMansion”

In the article one weird reason why doctors buy bigger homes than lawyers, it explains a seemingly common practice in locations in certain tax protected states that physicians purchase more expensive homes to protect their assets from malpractice liability.

The article states that doctors buy bigger homes than lawyers in general.  Protection of assets by buying an expensive dwelling in place like Florida and Texas is a well-known strategy that many people in the top 5% use very creatively.  There are multiple homes sitting on the coastline with few regular dwellers. A former commissioner of baseball used this strategy quite effectively. 
The sad part is that people have to go to such lengths in our litigious society to protect their lifetime assets and protect the future of their families.

A seemingly simple solution for the medical profession would be to radically alter the malpractice system from a personal fault system to a reasonable no-fault system that compensates the injured appropriately. It would also punish egregious repeated behavior by some practitioners through appropriate sanctions. Other countries like New Zealand have accomplished this with some success.

The ultimate solution is not to get sued either individually or in a group. Unfortunately, the odds are against you. On the other hand, a nice house on the beach is nicer than living in a tent.

Can Defensive Medicine Decrease Lawsuits?

The authors of Physician spending and subsequent risk of malpractice claims: observational study try to determine whether increased clinical use of diagnostic resources serves to decrease malpractice claims. While they were able to show an association between greater physician spending and reduced risk of malpractice claims, they were unable to determine an underlying cause for increased resource use.
That is, the reason (cause) for this association is not entirely clear.  We can speculate, of course, but it is wise to remember that doing is simply that, speculation.  

 
Consider two possible causative explanations, one employing a defensive approach, and the other an offensive approach.  Opposite forces, same result. How?  In the first, physicians studied may actually have practiced defensive medicine, with the mindset of defending themselves from lawsuits. In the second, they have practiced offensive medicine, being more careful for the benefit of their patients, and being little influenced by defensiveness.   In either case the same association would have been shown: more tests, less suits.  Indeed, it could be the case that more careful doctors make more accurate diagnoses, and have fewer suits.  The only difference between these obverse sides (defensive/offensive) is motive.

From the defensive side, the authors give multiple reasons why malpractice occurs where some skill improvements might be of benefit, including poor interpersonal relationships and impaired communication abilities.  From the offensive side, when one is doing one’s best in behalf of a patient, there is little that can be done about unanticipated bad outcomes, unexpected diagnostic errors, cognitive errors, and systems errors. These happen to the best of us.

Nevertheless, defensive medicine is a fact of life for most physicians in the United States. It is present to some degree, even if slight, in most of us. It is the “Elephant in the Room.” Even though multiple studies contend that malpractice risk is overrated, those of us who have practiced for more than a few decades (or more) know that a multiplicity of factors get poured into each clinical decision, and no less into the question of what tests to run. While defensiveness may creep in now and then to some degree, it is not the whole picture, as it simply does not control clinician minds. Most of us make decisions based upon that we think will benefit the patient, not upon what will keep us out of court.  True, a good outcome is less likely to result in a suit, but we tend not to live in a pessimistic world where every patient is a lawsuit waiting to happen. Some believe that physicians do think that way, but it is an untrue picture because most practice optimistically.

Yes, there are those who have allowed defensiveness to rise to the top in their decision-making.  But not all in the house of medicine have done so.  No, not all, and more precisely, only few have defensiveness dominate.   Of course, for each of us, there have been times it has become more of a force than we would like, perhaps when under stress, or perhaps when the memory of encountering a plaintiff’s attorney is still fresh. But for the most part, we get back to practicing primarily for the sake of patients, letting potential litigation chips fall where they may. We do that largely because we know that lawsuit apprehension is not what really motivates us, nor what is best for our patients.

Unfortunately, a big part of the malpractice setting is the psychological and emotional damage a suit inflicts on defendants. Loss of money may happen; worse are losses of self-esteem, meaning, and identity. Then there are the potential appearances of alcohol abuse, substance abuse, and marital discord. These are only a few of the untoward consequences that accompany becoming a malpractice defendant.  There is also the chances one may lose their job or that potential advancement may be spoiled. The state of Florida has a 3-strike law that can actually force one to leave the state. We have been told that being referred to the State Department of Regulation can be a worse experience than being sued.

A provider who is currently, or was previously, a defendant must live with a cloud that follows him or her around, raining thoughts about the “mistake” that may have harmed someone. Whether fault really was present is often irrelevant when the defendant bears psychological consequence. Endless pressure to perform at 100% accuracy in a world where errors are not taken lightly, may, over time, extract a toll on the joy and satisfaction practicing medicine should otherwise have. One sometimes hears youths, as well as mature ones, say that medicine can be a great career, but there are easier ways to make money.

It is important to be cautious and, as we have noted, caution can lead to greater expenditure and resource utilization.  But, as we have noted, cautiousness may be directed not only toward oneself (defensively, by the ordering physician), but also toward the patient (offensively, to be sure nothing important is missed).  Now, when we, or one of our loved ones, becomes sick, don’t we want the cautious, caring physician, on the offensive in your corner, whether his ordering stats appear to be “defensive” or not?

Are there any solutions to this conundrum? Having a non-combative no-fault malpractice system (as in Australia) would be a good start. While a no-fault approach does not eliminate malpractice claims, it enables most injured patients to get their day in court without demonizing the provider.

Communication and system issues are prime sources of patient dissatisfaction. Still, because little can be done to reverse a bad outcome, a no-fault system has definite advantages.  It has the ability to provide resources for the patient and the family, while simultaneously protecting all concerned, including the physician.

In conclusion, it is only logical that providers might order more tests to protect themselves from all the downsides of lawsuits.  On the other hand, it is also only logical that physicians order tests in larger numbers to protect their patients from bad outcomes.  How do you tell these apart? These two paths to more testing are indistinguishable.  But in either case, even though the provider is being risk averse for two apparently different reasons, ordering more tests will not prevent lawsuits.

Danger, Danger Will Robinson

As Electronic Medical Records mature, the legal community is getting the handle on how to use the volumes of data, timelines, and computer speak to win more cases.  Vulnerability is greater and more complex than in the paper world, as some unintended misrepresentation of the care given may be more hidden, and therefore not as evident to you, and therefore not as evident and open to inspection and correction.  The article EMRs can be costly in malpractice suits have the basic message in the title.

Some prominent points:

1. Lawyers are attending conferences on how to attack the electronic medical record
2. Losing lab and x-ray data through failures in tracking
3. Cut and paste was called "plagiarism" by the judge
4. Using auto-complete without confirming the information
5. Avoiding complex notes that are incoherent
6. Understanding the limitations of electronic signatures
7. Being careful with templates
8. Lack of individualized information about the particular patient
9. Gender confusion
10. Positive findings in 1 section noted negative in another section
11. Alert fatigue mistakes
12. Typos and large number of empty spaces

Clearly, the electronic health record is both a theoretically great solution and a minefield of potential legal issues.  It is important to keep this in mind when signing off on the EHR record of any patient, and to choose an EHR which helps you verify the correctness of the final data recorded.

The provider must never forget that the computer automatically captures the timeline of documentation in the document.  However, that recorded timeline may not accurately represent the sequence of care.  It is thus important to state the actual timeline (sequence, preferably with times) of clinical events in the clinical course of the medical decision making.  Many cases that go to trial hinge on a comparison of times between the records made by the physician, the nurses, the other staff, and yes, now, the computer.

Read the final output before signing.  A few words or sentences typed or dictated through voice-activated technology (e.g. Dragon) can insert meaning and coherence into an automatically synthesized notation that otherwise would read like "electric babble".  Read the nursing notes.  Explain any discrepancies.  Read that last sentence again. 
Acknowledge warning alerts and state in the record your medically appropriate decision, along with a brief summary of the basis for that decision. 

The cost and complications of the electronic health record will continue to rise until the process is simplified and designed for end-users.  It is going to get worse, before it gets better.