This may come as a great shock to many readers, but I am not in favor of sovereign immunity for physicians as a way to decrease defensive medicine and lower health care costs. There is no reason why a physician who is truly negligent should be totally let off the hook. No, I’ve said it before and I’ll say it again, the onus is on emergency physicians to stop ordering needless – even harmful – tests.
Physicians tend to justify over-testing by saying, “It’s good medical-legal practice,” but it’s crippling the system, or worse. In the United States, we order perhaps 10 times as many head CTs on children as they do in Europe. In case you haven’t been to Europe lately, there are not a lot of dead kids laying around. Supposedly, we order these CTs for malpractice purposes, but as far as I’m concerned, the ordering of CT scans on the heads of children, unless they have tremendous indication, is malpractice itself. No one ever thinks of the 30-year impact of shooting radiation at 150 times the dose we would give for a chest X-ray at a child’s growing brain.
Or take the examination of a child’s abdomen. Lighting up children with 450 times the radiation of a chest X-ray to determine whether they have appendicitis seems ludicrous to me. To see emergency personnel and surgeons then decide that the child needs a second CT scan borders on lunacy. Whatever happened to the days when, under clinical suspicion, we just took them to the operating room and removed the appendix? There was about a 10 to 11 percent miss rate with this technique. Today, even in the best of hands, there is a 5 to 7 percent miss rate with CT scanning. About the worst thing that can happen with an unnecessary surgery is that the child will never get appendicitis again in their life. More common sense, more repeat examinations and less testing is the way to go.
What we need is a true change in the paradigm of how malpractice is determined and measured. This should not be an intellectual freak show played out in front of 12 people who are not smart enough to figure out how to get out of jury duty. This should be presented to professionals in the field who actually determine whether reasonable things were done in the care of a patient. A way to do this would be for the legal and medical communities to come together to set up standards and measures under which no legal action could be taken. Take for a example a child who is hit on the head. Under a medico-legal agreement, the fact that he did not have a positive neurological examination could mean that the patient could be cleared on clinical grounds. These kinds of standards would go a long way towards reducing unnecessary tests which have a zero or negative affect on health care in the United States.
Of course, there is one problem with setting up standards of practice between the medical and legal communities. Medicine changes every day and what constitutes the standard of care is a constantly shifting sand. What was acceptable two years ago is not acceptable today. The legal system, on the other hand, moves in geodesic time. Its inability to adapt to the needs of the public is legendary. Remember, it took 20 years in some states to stop mandating silver nitrate in the eyes of newborn babies to prevent gonorrhea long after the proper antibiotics had been developed.
The truth is that there is a small amount of malpractice in the country. Whether those cases are ever properly evaluated and compensated is hit-and-miss at best. There is no question that a medically-driven system which used true health care professionals to look at the quality of care would be a much better way of handling the problem. The Europeans, Australians and New Zealanders have done a much better job over the last 30 years of getting a handle on this situation and a good first step would be to study what has worked, and what hasn’t. Then again, not to end on a note of pessimism, but we now live in a culture dominated by the lottery mentality. No one wants to look at the true cause and effect of any disease and no patient wants to take responsibility for any aspects of their own health care. To move to an intelligent dispute resolution system would be nothing short of a miracle.
Greg Henry, MD, is the founder and CEO of Medical Practice Risk Assessment, Inc. Dr. Henry is a past president of ACEP and has directed an ED for 21 years.