The Silent Majority

It was the end of a long day in the office. Although I vowed I wouldn't schedule new, complicated patients after 2 PM, the young man's mother had pleaded with the scheduling secretary. The family was desperate for a second opinion. They were worried that their 20-year-old would collapse under the weight of his anxiety and depression. They couldn't wait—could Dr Kowey possibly fit him in? My secretary put him on my calendar and knew I wouldn't complain.

It was a case of presyncope in an athlete. The young man had collapsed during a grueling workout on a hot day. He was brought to an emergency department where an electrocardiogram had a pattern compatible with the Brugada syndrome, a relatively rare but potentially lethal condition.¹ The patient had no family history of sudden death, no prior history of syncope, and no medical problems. An electrophysiologist had been consulted who told the young man and his family that he needed a careful workup. There was no structural heart disease by echocardiography, genetic testing for the SCN5A mutation was negative, none of his siblings or his parents had an abnormal electrocardiogram, and intravenous drug challenge and programmed electrical stimulation were equivocal.

Nevertheless, the consultant recommended implantation of a defibrillator “to be on the safe side.” The patient and his family, faced with a lifetime of defibrillator use and care, were devastated. They found me on the Internet—they wanted another opinion.

After I went through the records and before I saw the patient, I decided to call the electrophysiologist, a good person who I knew to be well trained and competent. “Peter,” he confessed during our brief conversation, “I was sued over a case just like this last year, and I am not going to let it happen again.”

It took me a few minutes to absorb the message, but after I did, I was able to put the case into context and make a reasoned decision. I reassured the patient and his parents that his risk of sudden death was so low that an ICD was not necessary. Yes, his near syncope was problematic, and yes, he might have an arrhythmic event, but there just wasn't enough evidence to warrant a therapy that would literally change his life. The patient and his parents were able to accept this much uncertainty, and so could I.

This case brings forth a nasty secret that physicians know full well but few will admit, at least publicly: we are afraid of being sued for malpractice. In fact, getting a summons delivered to our office is about the nastiest nightmare in our professional lives. Why physicians react so viscerally is hard to decipher and is probably, like most complicated things, multifactorial. Doctors are generally bright people who genuinely want to help others. Physicians tend to be financially conservative, so the idea of having their savings or earnings at risk is terrifying. The assault that a malpractice case makes on their ego is monumental, but physicians are uncomfortable with direct confrontation and prefer to solve problems by consensus, not in battle. Physicians believe that the practice of medicine requires their complete concentration, and the unending strife of a protracted malpractice case is maddeningly distracting. Physicians are proud of their accomplishments. When they have to disclose lawsuits (which they do frequently and formally), they are ashamed of being viewed as a failure.

Like Reagan's silent majority, most physicians have not spoken out on this issue. After all, we regularly persevere through tough situations. We are busy with our jobs, trying to sort out the causes and treatment of complex diseases. Who has time to stop what they are doing and state the problem in a compelling way? Our professional organizations represent us, but they have bigger fish to fry, like trying to prevent massive cuts in our reimbursements. Isn't it ironic that one of the largest reasons for the cuts is that physicians are breaking the health care bank by ordering unnecessary tests?²

Because we have been quiet, patients and politicians have little idea how much lawsuits affect physician behavior. Physicians are leaving the profession or relocating to avoid the hurt and the cost of litigation.³ Frightening is the advice rendered by disillusioned doctors to bright young people to avoid medicine as a career. In a recent survey, fear of retribution for medical errors was cited as a major reason why one in 16 surgeons reported suicidal ideation.⁴

But by far the most serious ramification is the corruption of everyday patient care. Just like the electrophysiologist who recommended an ICD for our patient, after a physician has been sued (and most of us have been), he or she vows it won't happen again. To accomplish that objective, the physician practices defensively.

Defensive medicine is pervasive and takes many forms. It extends from ordering too many tests all the way to performing unnecessary surgical procedures. Lung nodules that used to be followed end up in a specimen jar in the pathology laboratory. Subcritical coronary artery lesions are dilated and stented. And the contamination is not just at the individual physician level. Practice guidelines are formulated by colleagues who hear the wolf at the door. In the absence of definitive data, wouldn't it be logical that recommendations about the frequency of prostate biopsy in patients with abnormal PSAs would be on the more frequent side for safety's sake? And once those guidelines are published, physicians who ignore them do so at their peril.

None of this will sound strange to a good, experienced physician. What is surprising is how underestimated the burden of defensive medicine is, in terms of either the number of tests and procedures ordered, or the dollars wasted. The Government Accouting Office thinks the US health care system could recoup 2% to 4% of medical costs with tort reform.⁵ Those of us in the trenches think they are off by at least an order of magnitude.⁶ And we have evidence to support our position in the cardiovascular arena. US physicians carry out many times the number of procedures and tests than good physicians in developed countries, one of which borders us on the north. Cardiovascular outcomes in those countries are no worse and arguably better than in the United States.⁷ In each of these other places, malpractice is managed and cases are kept to a minimum. Is this a coincidence?

And who suffers most but our patients. It is simply not possible for those innocent people to decipher how many tests and procedures are being carried out to solve their problem vs to protect the physician. To this point, physician disclosures have been restricted to industry relationships. Shouldn't patients like mine be informed that their doctor is making a complex management decision after having been sued in a case that resembles their own? Do patients want to be operated on, treated, or otherwise cared for by physicians with less than the best frame of mind?

Physicians do unnecessary things, like stenting subcritical vessels or implanting devices, for many reasons, including abundance of caution and greed. The relative contribution of defensive medicine to profligate technology is impossible to quantify. Even physicians can't always discern their motives. But we need to reform the system to permit fair compensation to patients without civil litigation wherein physicians are called “negligent” in order to meet the legal standard. Can a reasonable person dispute that fear of being called incompetent by a respected peer in open court contributes to the glut of procedures that has become the scandal of US medicine?

It is time for the physician silent majority to actively support tort reform. A House bill called the HEALTH Act of 2011 contains many of the provisions that physicians have clamored for and, according to the Congressional Budget Office, could bring substantial savings by limiting defensive medicine.⁸

Instituting meaningful legislative reform won't be easy. The issues are complex and opinions diverse, and there is much anger and misunderstanding. But physicians must speak up and bring reform issues front and center. We owe it to our profession, to ourselves, and to our patients.