I appeared on NPR's Talk of the Nation last Monday to discuss my Salon article on medical malpractice reform.   To no surprise, I was on hot seat in the virtual doctor's lounge, as physicians called in with their concerns--and gripes--about my point of view that tort reform will not solve America's  health care problems. 

 I have a few thoughts about the interview, especially about those who called in.  First, all three were doctors, and reflected on cases from their experience and point of view. 

But medical malpractice is a patients' rights issue as well.  The discussion may have been more provocative had we heard from someone who had been injured due to physician negligence.  Then, we may have seen how hard it can be to seek redress.  Here in California, for example, we have one of the oldest laws capping malpractice payouts at $250,000.  The figure hasn't changed since the mid-1970s when the caps were enacted, despite the obvious rise in inflation and the cost of living.  That often leaves an injured victim with very little recourse because the cost of fighting for compensation exceeds the payout.  So while caps may prevent frivolous suits,  they also make it harder for a patient to hold a doctor accountable.  For an example of this, listen to my story at the end of the NPR segment or read it here. 

 Second is the issue of defensive medicine.  The callers, and most other doctors, argue they practice defensive medicine to prevent being sued.  Consider the comments by one particular caller:  

"I think doctors are afraid of being sued, whether they're going to be sued for $20 or $2 million. But the question is, are these cases going to be tried by a jury of inner city people who sympathize more with patients than with the doctors, or are these cases going to be tried in front of professionals who understand the cases?

I think, you know, any data that you have, I completely - I can't possibly think applies to my practice or my husband's practice or what I'm seeing. Every doctor, every day, practices defensive medicine. There's no doubt about it. And I think it's ridiculous that it's not more of an issue in the health care litigation - or health care legislation that's before Congress right now. It should be..." 

 Let's look at the caller's main points: One, defensive medicine is practiced every day by doctors. Two, that tort reform should be a big part of health care reform due to the impact of defensive medicine on costs.  

No doubt we practice defensive medicine.  The question is whether tort reform is the cure for it and therefore, a key to lowering health care costs.

The short answer is no.  You can look at my references in the Salon article, but let's take another example.  I practice in Walnut Creek, Ca, and the caller who made the comments above practices in Baltimore, Md.  As I said we have malpractice caps here, as does Maryland. If you believe the caller is right, then health care spending should be lower in both areas where we practice.  

But take look at health care spending in both areas, as measured the by the Dartmouth Atlas of Healthcare.  What you'll see is that both my county (Contra Costa) in Northern California and Baltimore have very high health care costs (darker green on the map).  There are certainly many other factors that account for costs in both areas, to be sure.  But there is no effect of caps in curbing spending seems in either area.   

That leads to my last point--we doctors don't practice defensive medicine just to protect ourselves from lawsuits.  If we did, then the caps would have done the trick.  

That means that are a whole host of other reasons we play defense, ones that tort reformers never mention, and ones that have nothing to do with fear of litigation. One of those reasons is profit:  in fee-for-service medicine, more tests and referrals mean more revenue for you and your specialist colleagues down the street.  Another reason is time pressure:  many times, doctors don't have the time to sit down with their patients and get a good history of their illness. Ordering tests saves time and allows us to move onto the next patient.  Finally, there's customer service:  many of us believe that our patients want more, and so to please them, we prescribe and refer more.  Tort reform won't impact any of these reasons for playing defense.