Defensive medicine refers to the idea that doctors are forced to order extra tests, perform extra procedures, or push for more office visits because they think that without all that stuff, they're at greater risk for being sued.  This is in spite of the fact that studies don't support the notion that this extra care actually does reduce their risk.  What might help physicians get sued less often would be for them to get along better with their patients, or at least, they could become better communicators.  That's the topic of this week's Healthcare Triage.

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Sometimes, when confronted with the assertions that malpractice cases might be related to them, doctors lash out.  It's the system's fault, it's the lawyer's fault, it's greedy patients.  But these declarations ignore one important fact: lawsuits aren't random.  Some doctors are sued far more than others.

As far back as 1989, a study of obstetricians in Florida found that about 6% of obstetricians accounted for more than 70% of all malpractice related expenses over a 5-year period.  These physicians did not have a short run of bad luck.  They were being sued repeatedly.  In fact, a follow-up study found that one of the most significant predictors of being sued in the future was being sued in the past.  Doctors who get sued are different in some way from those who don't.  

Now, it's possible that these physicians were bad doctors, and that they deserve this, and if that's the case, then this is the malpractice system operating efficiently, and no one would have any reason to complain.  But this relationship held true for both paid and unpaid claims.  Some doctors were more likely to get sued whether or not the cases against them were eventually found to have merit.

To understand why patients file claims, we have to talk to them. Many researchers have.  A study in 1992 found that about a quarter of mothers who had sued physicians because of deaths or permanent injuries to their newborn infants needed money.  A third of them, though, said that their doctor wouldn't talk openly to them, half said that their doctor had attempted to mislead them, and 70% claimed that they were not warned about long-term neuro-developmental problems in their children.  These issues were much more common than a desire for remuneration.

Another study, published two years later, involved researchers who talked to mothers of babies with a variety of outcomes, from death to perfect health.  In this case cohort, however, none of the women had sued their physicians.  Patients who saw physicians who had the worst track record for being sued, however, were significantly more likely to report that their doctor rushed them, didn't explain reasons for tests, or ignored them.  Doctors who were most often sued were complained about by patients twice as much as those who were not, and poor communication was the most common complaint.

Decades old studies have shown that primary care physicians who get sued less often are more likely to spend time educating their patients about their care, are more likely to use humor and laugh with their patients, and are more likely to try to get their patients to talk and express their opinions.  It seems that more likeable physicians are less likely to have claims filed against them.

Physicians and patients don't communicate well, even about malpractice. A study published in 1989 surveyed patients who sued physicians as well as physicians who had or had not been sued. Almost all, or like 97% of patients reported negligence as the reason for their malpractice action. Fewer, or half of non-sued physicians thought negligence was the cause. Only 110% of sued physicians, however, thought negligence was the reason for claims. While only a fifth of patients reported financial compensation as the reason for the action, more than 80% of all physicians believed that was the reason.

There was one thing they all agreed on, though. About two thirds of all groups, doctors and patients alike, thought that improved communication could reduce future malpractice litigation. Among physicians who'd been sued, more of them thought that improved communication would be effective than thought reducing non-economic damages would, which is also often the major thrust of tort reform.

Even though all of this has been known for some time, the vast majority of efforts to reduce malpractice risk still focus on trying to make it harder for patients to sure or win large settlements. But not all efforts are fixated like this on settlements. At the University of Michigan in the early 2000's, a program was begun to improve communication around medical errors. When mistakes occurred, the program encouraged physicians to tell patients about them, how they happened, and what would be done to make them less likely to happen in the future. Doctors were also encouraged to apologize and offer compensation for harm if it occurred.

A study of the program published in 2010 found that in the years after it begun, claims dropped 36% and lawsuits dropped 65%.  The monthly cost of total liability and patient compensation dropped 59%, and legal costs dropped by 61%.  A later study, published just last year, looked at how the program affected gastroenterology claims and costs.  It found that despite a 72% increase in clinical activity, the rate of claims per patient encounters dropped 58%.  The total mean liability per claim dropped from more than $167,000 to just over $81,000, or more than halved.  The total cost of the healthcare system of malpractice in gastroenterology decreased by 64%.

Unfortunately, too few seem willing to make behavior change the focus of efforts to improve the risk of malpractice suits.  Too many still seem fixated on tort reform, even when evidence shows us that policies don't seem to do much to reduce the practice of defensive medicine, and poor communication still remains the norm.  A short while ago, a study was published in The Annals of Emergency Medicine that examined patient-physician communication in the emergency room on the management of acute coronary syndrome.  About 2/3 of patients left conversations thinking they were having a heart attack, while physicians believed this to be the case less than half the time.  The median estimate of whether a patient might die at home of a heart attack was 80% in patients and 10% in physicians.  Risk agreement within a 10% window occurred between doctors and patients only 36% of the time.  

No one is minimizing the difficulty of changing doctors' behavior.  Learning to be better communicators, and to, in essence, be better at customer service is no small task for physicians, but improving those skills might actually make a difference in whether they get sued.  Too many doctors would rather see policy change than change in themselves, even if those policy changes have a much lower chance of succeeding.

Healthcare Triage is supported in part by viewers like you through Patreon.com, a service that allows you to support the show through a monthly donation.  We'd especially like to thank our honorary research associates, Cameron Alexander and Qadeem Salehmohamed.  Thanks, Cameron and Qadeem!  If you'd like to support the show, more information can be found at Patreon.com/HealthcareTriage.