Op-Ed: 'I'm A Doctor. So Sue Me. No, Really.'

Read Dr. Rahul K Parikh's Piece For Salon Here.

As the debate over health care continues, members of congress and the American Medical Association argue that tort reform is key to reigning in costs. Dr. Rahul K. Parikh explains why he believes capping malpractice suits won't fix rising health care costs.

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NEAL CONAN, host:

Now, it's time for the Opinion Page.

As Congress continues to wrestle with health care, one of the hottest areas of debate is tort reform. Many argue that fear of ruinous lawsuits drives doctors to practice defensive medicine and order expensive tests, prescriptions, and procedures that really aren't necessary.

Cap the payouts on lawsuits, they say, and health care will be cheaper, and because malpractice insurance rates would drop, it would be more widely available.

In a piece on salon.com, Pediatrician Rahul Parikh disagreed. We'll hear his argument in just a moment. And we want to hear from the doctors in our audience today: how would tort reform change the way you practice medicine? Would it bring down costs? Our phone number is 800-989-8255. Email us: talk@npr.org. And you can join the conversation on our Web site, that's at npr.org, click on TALK OF THE NATION.

Rahul Parikh is a physician in Walnut Creek, California and joins us today from a studio at the Journalism School at the University of California at Berkeley. And it's nice to have you on TALK OF THE NATION.

Dr. RAHUL PARIKH (Pediatrician): Thank you for having me.

CONAN: And you begin your piece by conceding that in this swine flu season, you are over prescribing an expensive drug.

Dr. PARIKH: Yeah. My example is the most dramatic example of defensive medicine, and I think all of us agree that doctors do practice defensively. Certainly, doctors in higher risk (unintelligible) professions like obstetrics or emergency room physicians probably have more dramatic stories. But the question, really, is does defensive medicine really drive up the cost of health care. And according to several studies, including those done by the congressional budget office, which is a nonpartisan group - as we know, no. The answer is no. It does not.

CONAN: Nevertheless, your patients are getting expensive prescriptions they probably don't need. Their health care costs went up.

Dr. PARIKH: Yeah. They did go up a little bit. As a pediatrician, like I said, I'm not a huge utilizer of expensive medicines. And, thankfully, now that swine flue vaccine is a little more available, we're vaccinating more kids and hopefully keeping them from getting sick in the first place.

CONAN: But a lot of the procedures that, as you point out, rightly, people - doctors in other areas of specialty - well, we're talking about things like MRIs. Those are very expensive exams. Even surgical procedures that people don't need, all ordered by doctors for fear that if they don't order them, they're going to eventually - might eventually be sued for not doing all they could.

Dr. PARIKH: Yeah. I mean, I think one example you can use is a CT scan. We do a lot more CT scans than probably are necessary in this country. And some of that is done defensively, to look for things that maybe we want to confirm do or don't exist in a patient, an illness.

But the question then becomes is it safe to practice defensive medicine? And, you know, with CT scans, in particular, you're exposing a patient to very high doses of radiation. And repeated scans, you know, over the long haul could increase risk of cancer and other side effects of that radiation.

So, you know, it's not clear cut and I think that defensive medicine down the line may have negative consequences for patients as well.

CONAN: That's not what the issue here. If there were fewer CT scans ordered, it will be less expensive.

Dr. PARIKH: Yes, that's correct, and to some degree, it will. But how much would that lower the overall cost of health care? And that question really shuts - and the answer that suggest it won't make a big dent in the overall cost of health care.

CONAN: How many - another impression that a lot of people have, you write in your piece, is that there are a lot of lawsuits and that doctors face huge liabilities.

Dr. PARIKH: Again, the number of lawsuits over the last 10 to 12 years has been stable, essentially - at about 15 suits per hundred doctors in this country; according to, again, the Congressional budget office. And so we're not seeing really an epidemic of lawsuits that you might be hearing about from some of the rhetoric in physician's groups and lobbyists. Probably the most significant, the most serious lawsuits are now being handled in the courts, the most significant injuries and damages, while the other ones are going away.

CONAN: Other ones are going away, presumably being settled.

Dr. PARIKH: Either settled or dismissed, yeah.

CONAN: And-

Dr. PARIKH: But we don't have - I think, the point is, we don't have an epidemic of lawsuits in this country, that you might think with suddenly - if we suddenly capped rewards or somehow found other reforms to curtail - would suddenly drop health care costs. Overall, estimates are that malpractice costs, overall, account for probably less than two percent of overall health care costs.

CONAN: Let me ask this though, if the risk is negligible or just that minor, how come malpractice insurance rates keep going through the roof? There's no arguing that.

Dr. PARIKH: There have been three large malpractice crises in the last generation or so. One was in the �70s. One was in the mid-�80s. And one was more recently, in 2002. And the argument that physicians make is that there's - or physicians groups make - is that there's a large spike in lawsuits and there's an epidemic of lawsuits that drive up the risk of covering physician.

When in fact they may be part of the issue, but really the main thing also is that insurance companies make money by investing insurance premiums. And when investment markets are soft, as they were in those three eras, profits drop and then rates have to go up. And so there are many more factors other than just a risk of covering a physician - in terms of what determines the price of malpractice.

CONAN: So in other words, when the insurance company get the premiums paid by every 100 percent of doctors that's not put an escrow somewhere, they invest it and it helps to makes money?

Dr. PARIKH: Correct. Correct. And that's the nature of the insurance business.

CONAN: So the insurance business, the structure of the insurance business, you're saying, is responsible for this spike in malpractice insurance rates?

Dr. PARIKH: Well, if you look at some of the data, that's correct. And so it's not just as simple as a doctor or particular specialty of medicine as a higher risk for being sued, it saps more to - has - there are many factors involved.

CONAN: Well, we want to hear from doctors in our audience today. How would tort reform change the way you practice medicine? Would it bring down health care costs? Give us a call: 800-989-8255. Email us: talk@npr.org. Our guest, again, is a pediatrician by the name of Rahul Parikh. He is in - practices in Walnut Creek, California. His piece appeared in Salon on October 28, �I'm a Doctor. So Sue Me. No. Really.� And we'll have a link to that on our Web page at npr.org, just click on TALK OF THE NATION.

Let's get some callers on the line. And Tim joined us from Denver.

TIM (Caller): Yes. Hello.

CONAN: Hi.

TIM: It is very, very nice to be on.

CONAN: Go ahead, please.

TIM: I just though wanted to comment. I'm a resident physician in family medicine. Just wanted to say, thank God for primary care, to your guest today. I wanted to comment that I think actually that overall tort reform probably changed the way I practice. As a primary care doc, I do end up doing it for a lot of defensive medicine. And more to the point, it's something (unintelligible) my training process, I actually feel that my education is affected very badly by it.

Used to be the primary care docs were very, very good at basic exams. They were very good at diagnosing particular things. Now, a lot of the things that I would be diagnosing, otherwise, actually get farmed out to my specialist colleagues. Now, while I don't think this is necessarily always bad for the patient, I do believe it leads to, upon occasion, leads to risks like you're discussing with the CAT scans�

CONAN: Mm-hmm.

TIM: �and in addition to that, I think also it leads to, you know, really in position of my education, you know, have to work a lot harder to get experience with things that I would probably treat otherwise.

CONAN: For example?

TIM: Ah, well, let's see, let me come up with a good example here. So let's say, I have a patient, they come in. And from my exam, I can really overall clinically rule out� Let's say they have abdominal pain, and I can, you know, from my clinical exam rule out the likelihood of something remarkably serious, you know, such as, a appendicitis or, you know, a gallstone you know, that's stuck, things like that. At the same time, you know, you look at the possibility of potentially missing something like that - even though the chances are very, very small based on my exam - and then running into a problem with the lawsuit down the line.

Well, I will usually send that person for a radiological test for further rule out. Whereas, in years past, when defensive medicine was, you know, less prevalent, we might have thought about and diagnosing (unintelligible) without such.

CONAN: So it does drive up costs somewhat, and if there were tort reform, you would not necessarily have to order that test that you didn't really think was necessary?

TIM: And I would tend to agree with that. Yes.

CONAN: All right. Interesting. Tim, good luck with your studies.

TIM: Thank you.

CONAN: Bye-bye. Let's see if we go next to - this is Michelle(ph). Michelle, with us from Baltimore.

MICHELLE (Caller): Hi.

CONAN: Go ahead, please.

MICHELLE: Thank you for taking my call, Neal. I really enjoy your show.

CONAN: Thank you.

MICHELLE: Yes. I'm a doctor and my husband's a doctor as well. And I would say, without a doubt, that every single doctor who sees patients on a regular basis, every single day, practices defensive medicine. There's no doubt about it. Every patient that comes in and complains of something that could be minor, but, you know, maybe there's this very, very, very small chance of something else.

Every single doctor is thinking about that and will order the expensive tests, will order the referral to a specialist, or order their referral to an emergency rooms - just because they're worried about their own - the threats of litigation. And then that referral then leads to a whole host of other unnecessary tests, because then that referral leads to�

CONAN: There's no�

MICHELLE: �may be a�

CONAN: �they're playing defense too.

MICHELLE: �you know, such specialists ordering they're own set of tests. It is absolutely without a doubt case that defensive medicine contributes hugely to the cost of medicine in this country.

CONAN: Now, Rahul Parikh?

Dr. PARIKH: Yeah. You know, the studies are actually interesting, in that even as of early this year, they looked at, you know, comparing states within without tort reforms, in terms of the cost of medicine. Assuming that, you know, states with tort reforms would have lower health care cost. And they did not - surprisingly.

MICHELLE: I want to know what kind of tort reform you're talking about in those states. Is it just a limit on malpractice or is it a complete change in the way the whole system is viewed? 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�

CONAN: You're subjecting, Michelle�

MICHELLE: It's absolutely major.

CONAN: There's a difference between what practice might be like in Walnut Creek, California, and Baltimore, Maryland.

MICHELLE: I don't know what practice is like in Walnut Creek, California. I can only comment on what the practice is like in Baltimore, Maryland.

CONAN: Okay. Might it be different, do you think, Dr. Parikh, in different areas?

Dr. PARIKH: Oh, sure. I mean, there's going to be differences in everything from population to the (unintelligible) of disease and number of things. And I think, you know, I agree with the caller that, you know, there are lot of doctors who are practicing defensive medicine. There may be other reasons for defensive medicine, other than just prevention of litigation, however.

It might mean that a 2004 part - by the Justice Department - suggested that some defensive medicine might actually be medicine to ordering tests to, you know, bill for - in terms of billing and compensation for physicians. I mean, there are a lot of other reasons, potentially that�

CONAN: There's been some investigation of doctors who have associated radiological services, that they might be saying, well, you - best send you for another set of X-rays.

Dr. PARIKH: Right, right.

MICHELLE: I'm not in the defense of medicine.

CONAN: No.

MICHELLE: That's a different issue.

CONAN: That's a different issue.

MICHELLE: I'm talking about defensive medicine.

CONAN: No.

MICHELLE: It is practiced every day. And it runs up the cost - you could ensure the entire United States of America with the money you would save from defensive medicine being taken away.

CONAN: Okay, Michelle. Thanks very much for the call. Appreciate it.

MICHELLE: Thank you.

CONAN: Bye-bye.

MICHELLE: Bye-bye

CONAN: We're talking about tort reform and healthcare. You're listening to TALK OF THE NATION from NPR News.

And let's see if we get another caller on the line. And this is Elliot(ph). Elliot calling from Modesto, California.

ELLIOT (Caller): Hi, Neal.

CONAN: Hi, Elliott. Go ahead.

ELLIOT: I just want to relate some of my experience. I have been what I call a victim of frivolous medical malpractice lawsuits in the past five years, not once but twice, unfortunately. Both suits were dropped without any payment from any doctor, just because they had no merit. And it has pretty much permanently scarred my practice patterns.

CONAN: And how so?

ELLIOT: Well, I take zero chances any longer. Every test I ordered is to make sure that every disease is ferreted out and nothing is left to chance. Because I can't leave anything to chance. If there is a bad outcome, then I may be sued, even thought I've never been guilty of it.

CONAN: And you haven't had to pay out a dime.

ELLIOT: No. Except for the fact that now I have to tell every hospital that I go to that, of course, I was part of these lawsuits. So it's permanently on my record even though I didn't do anything wrong. I was dropped from the suits, but now it goes on and on. And it's just something that permanently alters practice patterns. And I always say that if I have a choice, I will spend every last dime in the U.S. Treasury to protect myself from a lawsuit.

CONAN: Elliot�

ELLIOT: And�

CONAN: Thanks very much. Appreciate it.

ELLIOT: Thank you.

CONAN: Bye-bye. So Rahul Parikh, in fact, you say that, in fact, doctors win the vast majority - your study suggests, your surveys of information - doctors with the vast majority of the cases that actually do go to trial and don't pay anything out. Nevertheless, as Elliott was just suggesting, this can have effects too.

Dr. PARIKH: Yeah. I mean, I guess the question would be that is, would tort reform somehow change the price of defensive medicine? Would it - and let me share a story with you, I guess, that might help put that in perspective. Not by me, but a colleague or physician in Nevada who helped spearhead tort reform. There was a mid-40s, a woman who was diagnosed, late, with skin cancer -(unintelligible) skin cancer.

And the reason she was diagnosed late was that because the pathologist, initially, had misread the diagnosis. And so, it spread. Now, the case went to court, the patient sued the physician. And there are caps in Nevada now, of $350,000 for non economic damages. And it turns out that, you know, everybody went to court. The same process occurred. The woman actually didn't win the case.

And the reason - even though the physician admitted to error, because the jury decided that they had heard rhetoric that physicians were leaving the state due to high malpractice premiums, so they ruled against the defendant. I guess the question is - or ruled against the plaintiff. I guess the question is that, do tort reforms really change the pattern of behavior of patients and doctors, and I'm not sure it does.

I think one thing that would change the pattern of everything would be if we'd focus on patient's safety instead of defensive medicine and tort reform. And that's being ignored in this debate.

CONAN: What do you mean by patient's safety? And I'm afraid I have to ask you to be brief.

Dr. PARIKH: Yeah. Well, there's a - if you look at the (inaudible) report, 100,000 a year are injured from medical errors or killed or injured for medical errors. There are ways to improve patient's safety that will really help to perhaps curtail medical malpractice lawsuits because we're keeping patients safe in the first place - preventing the problem in the first place from occurring.

CONAN: And thereby reducing the number of errors and then the potential number of lawsuits in the process.

Dr. PARIKH: Correct. All right. Correct.

CONAN: Thanks very much for your time today. I appreciate it.

Dr. PARIKH: Thank you.

CONAN: Rahul Parikh is a physician in Walnut Creek, California, the author of an op-ed in last weeks Salon magazine. You can read his article on our Web site. That's at npr.org, click on TALK OF THE NATION.

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