The doctor-patient relationship: A casualty of the medical liability crisis
By Stuart L. Weinstein, MD
The orthopaedic profession exists for the primary purpose of caring for the patient. The physician-patient relationship is the central focus of all ethical concerns,” reads the AAOS Code of Medical Ethics and Professionalism for Orthopaedic Surgeons.1 But the current medical liability crisis is jeopardizing that relationship on several levels.
The current medical liability crisis has been ongoing for the past five years. Although there has been some progress in passing tort reform on the state level, a federal solution remains elusive. The success of California’s Medical Injury Compensation Reform Act (MICRA) legislation over the past 30 years, and the more recent constitutionally sustained reforms in Texas in 2003, give objective evidence that meaningful liability reform can bring common-sense resolution to the crisis.2 Medical liability insurance premiums may have stabilized, but they remain exorbitant in most states.
National debate on tort reform centers on the two main effects of the crisis—decreasing access to care and increasing health care costs. But the most important aspect of medicine and the delivery of health care—the doctor-patient relationship—is also one of the unintended casualties of the crisis. The evolution of this relationship—a direct result of the current crisis—will affect all aspects of health care for a generation to come. This article briefly addresses the changing doctor-patient relationship and its impact on other aspects of the medical liability crisis.
Turning patients into adversaries
Recent articles on the doctor-patient relationship in the current medical liability crisis indicate that physicians are increasingly viewing patients as potential adversaries. This has profound effects on physician behavior, on health care costs (resulting from defensive medicine expenditures), on the distribution of physicians and on the career choices of medical students.
In a 2004 study, researchers reported that 40 percent of Pennsylvania specialist physicians surveyed were dissatisfied with the practice of medicine as a result of the medical liability crisis, and many said that they viewed every patient as a potential lawsuit.5
Residents—regardless of medical discipline—are beginning to reflect similar attitudes. One study examined the effects of the liability crisis on residents who took their training in Pennsylvania. Of 360 residents in anesthesiology, emergency medicine, general surgery, orthopaedic surgery and radiology, 80 percent stated that they viewed every patient as a potential malpractice lawsuit. One-third stated that they were less candid with patients because of medical liability concerns. Sadly, two out of three said they were less eager to practice medicine than they had once been, and nearly 28 percent regretted choosing medicine as a career.6
The impact of the crisis even reaches medical students; according to statistics from the American Medical Association, 95 percent of medical students are aware of the current crisis and almost half say that it played a part in their career choices. Because of the high liability risks associated with the practice of obstetrics and gynecology (Ob-Gyn), approximately one-third of U.S. Ob-Gyn residency slots went unfilled during the last few years.7
The Common Good Web site quotes one emergency physician as saying, “I now view every patient I see as a potential lawsuit” and “The threat of lawsuit is hovering out there, hovering somewhere in the air between me and the patient on the stretcher, invisible but with a presence as strong as a third person sitting and listening to the conversation waiting for the right time to simply come out in the open.” These attitudes profoundly affect the doctor-patient relationship and upset the entire health care dynamic. They also result in increased health care spending and decreased access to care.
Practicing defensive medicine
Assurance behavior can be defined as “supplying additional services of marginal or no medical value with the aim of reducing adverse outcomes, deterring patients from filing malpractice claims or persuading the legal system that the standard of care was met.” It includes ordering tests (particularly imaging tests), performing diagnostic procedures and referring patients for consultation. Other assurance behaviors include ordering more medications than medically necessary, particularly antibiotics; suggesting invasive procedures—such as breast biopsies—to confirm diagnoses; and performing extensive workups and requiring hospitalization for atypical chest pain in low-risk patients. As the study authors pointed out, the more this practice is perpetuated, the more likely it is to become the “standard of care.”4 Assurance behavior has also been documented in a recent study of emergency physicians.9
The Pennsylvania study also found that 42 percent of surveyed physicians reported “avoidance behavior.”4 Avoidance behaviors reflect physicians’ efforts to distance themselves from sources of legal risk and may include restricting practice, eliminating high-risk procedures and procedures prone to complications (trauma surgery, pediatric surgery, vaginal deliveries, cancer surgery, spine surgery, cranial surgery, aneurysm surgery), and avoiding patients with complex problems or patients “perceived” as litigious. This profoundly affects access for patients in rural areas where alternative choices of care are limited.
In Pennsylvania, 42 percent of specialists have reduced or eliminated high-risk aspects of their practice and 50 percent are likely to do so over the next two years.11
A survey of AAOS members in four crisis states found that 58 percent have discontinued or limited their emergency room coverage, 33 percent have stopped doing spine surgery and 33 percent have eliminated other high-risk procedures or complicated trauma cases. At the same time, increased referrals to academic health centers placed greater pressure on these facilities.
Nationwide, the two groups most affected by the access issue are women and those who live in rural areas. Women are affected because one in seven Ob-Gyns no longer delivers babies. In some areas, such as Washington, D.C., that number is up to 40 percent. Of those who do deliveries, a significant number will not take any high-risk cases. Women are also affected because of the shortage of physicians willing to read mammograms. Rural residents are affected because of the lack of availability of on-call specialists, which contributes to the closure of emergency rooms and increases the distance patients must travel for basic care.
The U.S. House has repeatedly passed liability reform measures, but these have not passed the Senate, where Republicans have generally supported reform while Democrats have prevented the measure from even coming up for a vote. However, the effects of the crisis are now being recognized even by those senators who have voted against reform.12 During the summer of 2006, both chambers held hearings on medical liability reform.
Without prompt resolution of the current medical liability crisis, the change in the doctor-patient relationship may be irreparable. The practice of “defensive medicine” will establish standards of care that can only lead to continued increases in health care costs.
Stuart L. Weinstein, MD, is chair of the Orthopaedic Political Action Committee. He also serves on the AAOS Medical Liability Committee, representing Doctors for Medical Liability Reform.