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 claim more than just an association. 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.

Dilemma of Accurate Data Collection

In the article "How your hospital can make you sick", Consumer Reports paints a pretty negative picture of hospital acquired infections. The data is disturbing, but without context can lead to reaching conclusions and action plans that may or may not work.

The Electronic Health Record contains endless amounts of information but may or may not provide the precise data researchers seek in an easily accessible form. Optimally, the EHR collects the data automatically, without need for provider input.  But all too frequently, data is incomplete or inappropriately classified; unless an answer to a specifically requested question is input, the data may become difficult to retrieve.

Most commonly the providers do not know the questions that are needed, and do not therefore record whether they have or not done performed some action.  A good example is not recording that the patient is a MRSA carrier who then leaves the hospital with MRSA Cellulitis and Dehydration. Did the patient acquire the infection prior to entering the institution or after hospital exposure?

The Electronic Health Record can be used as a tool to capture this data. The providers must know the questions and the organization must create buy-in to collect the data. There are various methods. The easiest is a checklist prior to discharge that answers the questions easily with the ability to provide context. This context can explain a behavior that may seem inappropriate. Moreover, it can be entered into the EHR by a non-provider at a latter time.

The bottom line is the EHR can be formatted to help the clinicians answer the tough questions.  This may help various institutions avoid the dreaded headlines in the morning paper (if anyone still reads it).

“Uberizing” Pre-Hospital Care

An Economic Toolkit for Identifying the Cost of Emergency Medical Services (EMS) Systems: Detailed Methodology of the EMS Cost Analysis Project (EMSCAP)

Medical costs keep rising and are under a great deal of government, societal, and insurance company scrutiny. Rarely discussed in the medical cost debate the true cost versus effectiveness of pre-hospital care.

The entire fire-rescue paradigm has broad support from most constituents but there probably could be some evidence-based cuts. The article above gives some guidelines how this can be attempted.

An interesting phenomenon occurs every time a rescue is dispatched: a fire crew is simultaneously sent out to act as first responders. The rationale four quick response is to arrive within 4 minutes, start CPR, and defibrillate someone with reversible V-fib. Yet, the majority of calls do not need CPR, defibrillation, our even treatment; but at the same time, they cannot be simply left where they are, and therefore need transportation to a care facility. 

Such transports are not only extremely expensive, but also take valuable paramedics out of service to act pretty much as a taxi. Municipalities commonly encounter fire-rescue budget constraints, and many cities now instruct their paramedics to call for a private ambulance themselves when the need is strictly for transport. Of course, such vehicle and personnel shuffling is time-consuming and potentially more expensive.

A potential “out-of-the-box” solution is to take advantage of the Internet, social media, and companies like Uber and Lyft. In the future Uber may be used as the generic name for Internet driven transportation services.

Potential applications are:

1. When a patient needs just transportation, Uber can be called by the fire rescue, paramedics, and or dispatch. A patient may even initiate the call.
2. Cities and Fire Rescues can contract with Uber to send specific taxis with CPR-trained our even ACLS-trained drivers to transport patients who do not need a stretcher for transport.
3. Certain cities are studying paging anybody within 6 blocks of a cardiac arrest victim who has volunteered as a CPR first responder. Specially trained “Uber” drivers that can commence CPR and attach and use the AED can extend this first level of care. Having backup of this type would gou a long way to alleviate community concern, and generally assure that every victim is reached in under 4 minutes

There is considerable potential for cost saving. Think of reductions in fire station construction, personnel, and equipment. All of this could be achieved with little reduction in quality. It’s time to take advantage of social media and include private infrastructure to aid the public good. Perhaps in the future, stories about babies being delivered by taxi-drivers will be replaced by a stories of heroic Uber drivers in that honored role.

Malpractice: A Guide to Getting Sued

This primer on malpractice is an excellent review for all providers regardless of their level of experience. It divides this dark side of practice experience into two realms: protection and defense.

The article is, in reality, a basic “course” that has as its last chapter what should be the first: "How to Avoid Getting Sued", and goes through common sense steps to reduce risk, including being sure you have the right diagnosis, asking for help, retiring when it is time, informing patients of needed tests, being friendly, communicative, and unrushed, following up, and documenting well.  No kidding!

When it comes to what to do, and how to respond when a suit is attempted or initiated, the article notes among other things: “Know how to prepare for depositions and trials to increase your chances of winning” and “Evaluate when to settle vs when to go to trial by weighing key factors.”

Throughout the piece, key factors that lead to malpractice claims are highlighted, including:

• Poor communication
• Not listening
• Not following up labs, tests, and outcomes
• Lack of supervision of team members
• Bad outcomes
• Bad “Luck”
• Being at the wrong place at the wrong time (also known as bad luck)
• System errors- Electronic Health Record issues
• “Lottery Mentality” of some patients (looking to sue they are watching you)
• Being named with multiple other providers (lawyers taking the deep pocket approach that casts a wide net)

Some easy(?) solutions to consider:

• Let the patient talk interrupted for 1-2 minutes before interrupting
• Find out his/her/family’s motivation for the visit
• Find out what the patient/family is concerned about and focus on those issues
• You may have to consciously work to include family members or surrogates
• Apologize for making them wait for you even if they have not
• Control expectations (any test whose results you expect in an hour, should be noted to the patient as requiring three hours)
• Always attempt to involve the patient and family in decision process
• Have a robust follow-up system for all data that is outside of normal range, potentially problematic, or of concern. Also follow up on all patients who were extensively evaluated to be sure they are doing better and to encourage their effort at follow up. Be sure these follow up efforts are well documented.
• Talk in common language without medical jargon (aim at 6th grade level of comprehension)
• Have the patient repeat what the plan is before they leave
• Create focused documentation with pertinent positives and negatives and a cohesive follow-up plan

The bottom line is that when a patient perceives that you are working on his behalf, that you care about him, he (or she) will be reluctant to sue even if inevitably some things go wrong.

What is the Problem with Interoperability?

In a recent article by Dave Levin, MD, the astute and experienced physician points out the "reasonable, but incorrect assumption that two installations of the same EMR can easily share data...The hard truth is that every implementation of an EMR is different and even same-brand EMRs do not seamlessly connect." Why not? It seems almost shameless in an industry that has had a directive to achieve interoperability, at least since George W. Bush's executive order 13335 in April of 2004: "Incentives for the Use of Health Information Technology and Establishing the Position of the National Health Information Technology Coordinator".

That order was made over 13 years ago, the same period in which Facebook became the foremost social network in the world (with extreme interoperability), and about the same time that Amazon expanded into jewelry, shoes, and electronics, rapidly becoming the largest retailer in the world and making its founder, Jeff Bezos, nearly the richest man in the world. Why are EHRs not able to obtain the same level of interoperability?

The missing piece is an absence of standardization. Even within a single vendor, achieving interoperable standards is apparently harder than climbing Everest, and less survivable too. A number of organizations have attempted to create EHR standards, notably HL7. Their valiant efforts have been largely ignored. Again one must ask: why? For the most part, one must point a finger at the government's inability to establish and mandate simple interoperability standards. The efforts that have been made have been an abysmal failure.  Meaningful use? Seriously! Many of us say: meaningless use. It is not a standard, it is a hand-tying imposition on progress. There would be no Facebook, no Amazon, if such impediments were operative in the general internet commerce and social media space.

Think of it this way. GE, Samsung, Amana, Westinghouse, all make refrigerators and other appliances. They all seem to work fine on 120v current. Why? because that is the standard, and the companies know that is how they have to be built. What if (as with EHRs), companies were allowed to construct their innards any which way? We would not have cold food, or ice, dishwashers or air conditioning. None of the devices would be able to talk to the electrical grid. But now, EHR vendors can build what they want, can tell potential client hospitals (as well as the VA and the DOD) that they alone have it together and you better stick with them exclusively. Would we not rather choose an EHR based on how easy it worked? Knowing that it spoke the needed language as a baseline. The culprit in this is VA's and DOD's boss. In 2004, George Bush saw it, but the ability to stand up to the big companies that deliver health care tools is absent.

Until the government gets out of the business of trying to tell doctors how to practice and instead tells vendors they have to make EHRs that meet an interoperable standard, chaos will continue to reign.

Expansion of Nurse Practitioners and Physician Assistants Setting Stage For Single Payer Health Insurance

In the article “Are Nurse Practitioners and PA’s Taking Emergency Physician’s Jobs?,” the author gives an excellent summary of the evolution of the roles of “formally” ancillary providers.

While the dictionary defines ancillary as “subordinate, subsidiary, or assisting,” the article provides statistics on the rapid growth of ancillaries and the expected goal that these second-tier providers will practice in an increasingly autonomous fashion in the future. The majority of ancillaries support “team-based” physician-run practices but do not have decision-making capacity in the practice itself.

With modern technology, advanced training, and prospective financial savings, an ancillary-based model is clearly in the cards for Emergency Departments, urgent care facilities, pharmacy clinics, and other care-delivery locations in the future.  These will likely work with a physician supervisor overseeing a team of ancillary providers (“boots on the ground”). Supervision might occur simply by walking from room to room, over phone lines, or even via video (telemedicine).

With the ever-increasing costs of medical care and difficult access for many, using PA’s and Nurse Practitioners for direct patient contact makes a lot of sense. Will quality suffer? With the availability of direct supervision or advice through communication devices and telemedicine, decrease in quality should be minimal. Studies have shown that the general public is not only supportive of ancillary providers, but appreciate the concern and “bed-side” manner many are able to show, especially compared to negative experiences many have had with more hurried physicians.

In the recent governmental health care debacle over the ACA and “Trump Care”, there is little discussion of cost savings. Media reports show that legislators speak in terms of premium reductions and deductible amounts, and think that having an insurance card equals having medical care. How wrong!

Quite likely, the case for single payer health insurance will be on the table before long. And then, one might see a public safety net system that has premier options for those able to pay out of pocket. NP’s and PA’s will unquestioningly play a significant role in such a more socialized structure.

2-Hour Length of Stay ED, Would You Like Some Fries with That?

In the ED community there is a new marketing tool—30 minute or no-wait Emergency Department.





The implication is that a provider (physician, PA, or NP) will greet you a la WalMart and begin the relationship immediately. There are billboards, internet advertising, etc. that proclaim that your care will be improved because it will be faster.

On the upside, if properly conducted where the patient is fully evaluated there should be significant PRC or Press-Gainey score improvements.

I would prefer to see the metrics based on both speed, quality, and outcome.

Welcome to  the 2 hour LOS ED.

The provider will either discharge, admit, or carefully discuss with the patient and family the “battle plan” for disposition at the 2 hour mark.

1. Discharge prior than 2 hours
2. Admit prior than 2 hours
3. Discussion with patient
   a. Outline the time frame
   b. Discuss need for more tests (i.e. CT abdomen)
   c. Waiting for consultant
   d. Providing more treatment to avoid admission (i.e. fluids, 2nd set of Troponin levels, etc)

This would be the “ED Value Plan” that encompasses speed, efficiency, communication, and quality. (9 out of 10 members in my family would choose this plan).