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The Price of Certainty Print E-mail
Written by David H. Epstein, MD, FACR   
Friday, 28 January 2011 00:00


 As the debate over health care reform is assured to continue into the next congress, questions about the role of tort reform will undoubtedly also persist, as we, physicians, will assert the centrality of tort reform to the control of medical care costs.  While the cost of defensive medicine is real, quantifying it is difficult and risky, and any attempt to profess that tort reform will produce prompt measurable reductions in the cost of health care provision may imperil our credibility where and when tort reform is accomplished.

In our zeal to communicate to the non-medical population our belief in the imperative of tort reform, we must also be realistic about the many causes of the progressive rise in the cost of medical care, the extent to which defensive medicine contributes to the cost, and the ability of tort-reform to stabilize or reverse these increases in the near term.

Contributors to the excessive and increasing cost of medical care are legion, and are mostly well recognized, if not necessarily their exact proportion.  For some, such as the felonious operators of non-existent Medicare and Medicaid clinics and the bogus personal injury rackets, better law enforcement is needed.  Greedy insurance companies, avaricious drug and durable medical suppliers, and inefficient wasteful hospital administrators, are all substantial participants that need in some way to be dealt with.  At some point, however, we must also confront those parts of the medical cost conundrum that are ours.  By that, I am referring first to that part of our community that has placed financial gain above the welfare of our patients.  In some cases this behavior can be quite blatant; with others it occurs only at the margins of our practices and is justified, erroneously, as good, thorough practice.  Unfortunately, where good medical practice is usurped by greed is probably more frequent than we would like to believe, and is inviting ever greater and unwanted scrutiny and interference by non-medical entities into our day-to-day practices.

Secondly, we have to look at how the nature of patient/physician interaction, along with its irrationalities, fears, habits, and quirks, has changed, and what this means to the future of the practice of medicine.  For example:  Susie comes to the ER with her perky 5 year old son Bobby who had just fallen off a piece of recreational equipment striking his head on a padded floor.  After a few moments of dizziness, he returns to his normal pre-event status.  Despite his apparent normalcy, Susie takes him to the ER, where Bobby is evaluated thoroughly by the ER physician, who can find nothing disconcerting.  Based on the history and physical exam, the doctor recommends observation and Tylenol as needed.  Susie, though somewhat reassured, mentions that a friend of hers knew someone who knew someone else that had a cousin whose daughter had a similar fall and got a CT scan.  That she thinks showed something.  And therefore, shouldn't Bobby get one? 

Ten, maybe twenty years ago, we would have confidently said no, and that would have been the end of it.  But now the discussion slips into the realm of "can you be sure?" and "would it hurt to..." and...You get the idea.  Knowing the severe penalty our legal system exacts if the highly unlikely but not impossible has happened, in all likelihood Bobby will get the head CT to assure that there is no intracranial injury.  While this can be called "defensive medicine," in reality what has happened is the result of a generation of interactions between physicians and patients that seek, no, make that demand, an absurdly high level of diagnostic certainty.  And usually just to prove that nothing is wrong.  We aren't seeking disease where we expect to find it as much as we are confirming the absence of disease where we don't expect it.  The latter, of course, is much more expensive.

Besides my concern that this style of practice is totally unaffordable, there is the peril that it places us in as a profession as we seek legitimate relief from the litigation drenched society in which we must function.  If we claim that 40% of the "excess" utilization is driven by defensive medicine, the logical conclusion is that once the burden of impending litigation is magically lifted off our shoulders, there will be a commensurate decrease in utilization.  My specific concern is that there is no such one-to-one correspondence.  In reality the practice patterns that have developed in the US are not just a response to mal-practice, but also to the profusion of and consumer demand for highly accurate but expensive tests and procedures which has conspired to create in our nation an unparalleled intolerance for uncertainty.   And while we must immediately and continuously advocate for tort reform, I believe with the utmost certainty that there will be little measurable change in patient/physician behavior until we have a new generation of physicians trained in a tort-restricted environment under the umbrella of respected and followed practice guidelines, and a generation of new patients that live in a world where the level of certainty that is attainable is commensurate with that which is affordable.

As we seek changes in medical tort law, we must not mistakenly suggest that tort reform will have an immediate payout in the form of recovered medical expense dollars.  If we make this mistake we are certain to disappoint, and are likely to suffer a backlash that may reverse any hard fought gains made in tort-reform and substantially delay the institution of meaningful and long-lasting improvements in medical tort law. 

Dr. David H. Epstein, MD, FACR, a partner with Radiology Associates of Hollywood,  is a senior attending with the Memorial Health Care System, member of the Florida Medicare Contractor Advisory Committee and Blue Cross/Blue Shield Physician Advisory Panel, and former Florida Radiology Society President.

Last Updated on Wednesday, 30 March 2011 16:05

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