The Cochran Firm Legal Blog

A recent nationwide study of randomly-selected doctors showed that over 90% say that they conduct additional tests out of fear of medical malpractice lawsuits. They say they fear that even if they give care to the national standard they will face a frivolous medical malpractice lawsuit. If so, this is an irrational fear, as evidence shows that 97% of medical malpractice lawsuits are related to actual injuries, and that the rate of lawsuits is actually far below the number of medical errors. In addition, most doctors have nothing to fear from medical malpractice lawsuits. About 5% of doctors account for about 54% of the medical malpractice payouts (according to data from the National Practitioner Data Bank in 2004), some of them with 10 or more payouts in less than 15 years. This means the other 46% of payouts are divided among the other 95% of doctors, leading to a very small number of payouts among these doctors. Most studies also agree that medical malpractice lawsuits are strongly correlated with quality of care, so it makes sense that if a doctor wants to avoid a medical malpractice lawsuit, all he or she must do is provide quality care, not order "extra" tests.

In his blog, Forbes staff writer David Whelan implies in his blog on this survey that it seems unlikely that doctors are acting irrationally, as he closes with the rhetorical question: "Has an epidemic of mass paranoia overtaken the profession?" This is not, however, so unlikely. Many psychological studies have shown people often exhibit irrational fears. People are more afraid of airplane accidents than they are of car accidents, even though car accidents kill about 40 times as many people as airplane accidents. And if we break it down further: normal, scheduled airline traffic, which most of us use (and many of us fear) accounted for only 50 deaths in 2009, but car accidents accounted for 33,963 deaths in the same year. And consider the relative fear of shark attacks (which have killed 8 people in the last 9 years) and dog attacks (which have killed 230 people in the same period). So it is possible that irrational fears play a role in defensive medicine.

Another possibility is that doctors are somewhat in denial of what they are doing, and surveys like this one serve to conceal the McAllen Effect. When New Yorker correspondent Atul Gawande asked doctors in the town why medical care in the town was so expensive, they all responded "medical malpractice." But, when pressed, doctors confessed that medical malpractice lawsuits had dropped since tort reforms were passed in 2003: "Practically to zero," according to one doctor. But costs continued to rise, and the doctors finally admitted that it was due to overutilization, including overtesting. Helen Haskell, a patient advocate for the group Mothers against Medical Errors, responded to the survey by saying, "I think they certainly believe [they order tests out of fear], but at the same time the overtesting is both easy and profitable for them rather than spending time with the patient."

In writing about the McAllen Effect, blogger James Kwak said, "We long ago stopped expecting lawyers and accountants to behave contrary to their economic interests; now we simply expect them to conform to the law and to certain professional codes of conduct, and otherwise make as much money as possible. Why should we expect anything different from doctors?" This may be true, but it is perhaps not too much to expect that doctors might admit this rather than live in denial about themselves, their profession, and their practices.

If you have been hurt or lost a loved one due to a doctor's negligence, the medical malpractice lawyers of The Cochran Firm stand ready to help you seek compensation for your injuries. To learn more, please call or email us today for a free initial consultation.