- The Washington Times - Sunday, November 29, 2009

President Obama’s recent tepid foray into the medical malpractice quagmire has hardly shone the spotlight on this hotly contested issue.

Nonetheless, doctors have long contended that unpredictable jury awards result in lawyers flooding the system with often frivolous lawsuits. This spate of lawsuits culminates in escalating malpractice premiums, a cost eventually passed on to the patient. Politicians in bed with the trial lawyers have religiously fought any attempt to curb the problem.

The status quo forces doctors to resort to a process known as defensive medicine - ordering tests, procedures and specialty consults that patients may not need simply to protect themselves from lawsuits. A Massachusetts Medical Society survey questioned doctors directly and found 83 percent of those surveyed ordered such unnecessary interventions solely to shield themselves from the tort mafia.

Astonishingly, doctors on average deemed 18 percent to 28 percent of orders and consultations they requested to be medically unwarranted. It should be noted that defensive medicine carries a hefty price tag. Amitabh Chandra of Harvard University conservatively estimates the annual cost of defensive medicine at $60 billion. Other research places the yearly cost at roughly $200 billion.

Perhaps the greatest price associated with our litigious society is not the cost per se of these unnecessary medical interventions, but their cost in opportunity.

Medical resources are scarce In a hospital There are only so many CT scan machines and only so many radiologists to read them. When fear of lawyers causes practically every patient with a bump or bruise who enters the emergency room to get a CT scan whether it’s clinically warranted or not, critically ill patients who need the scan inevitably must wait their turn.

While radiologists read unneeded tests, precious minutes tick by with patients suffering from possibly fatal conditions such as subarachnoid hemorrhage (bleeding in the brain) or septic shock (overwhelming infection) waiting quietly in the queue.

Another opportunity cost of jackpot justice is its effect on the time doctors can spend with patients. Patients often may wonder why doctors spend so little time with them in the hospital. Doctors are not out playing golf or eating bon bons. They are in back rooms writing notes, documenting everything they have done and everything they plan to do.

Every day, a detailed assessment and plan is needed to outline all actions and the reasoning behind them to protect doctors from lawsuits, acknowledging every lab value, test, consult. If nothing changes from one day to the next, doctors must take the time to write the same thing again. If it is not written down in the chart, it never happened.

While some medical cases can be quite complex and such inordinate documentation can help organize the case more clearly in the doctor’s mind, often this is not the case. Primarily this degree of documentation is done out of necessity to keep the pesky lawyers at bay. In fact, by wasting valuable physician time that could be better spent actually seeing patients, it can be counterproductive to a patient’s well-being.

Mr. Obama has pledged $25 million in grants for medical malpractice initiatives to study the matter. In the grand scheme of thing,s this is mere pocket change. Remember that the Association for Community Organizations for Reform Now (ACORN) alone had $8.6 billion earmarked from the stimulus, but for this essential endeavor, the House bill just can’t find money. I wonder why?

To pay for their version of health care reform, progressives have pondered taxing everything from soda to air and much in between. By seriously addressing the defensive-medicine issue, Congress would not only improve the quality of health care in this country, but fund a significant aspect of reform efforts, if not the whole thing. Unfortunately, Democrats do not seem willing to stand up to the powerful tort bar and its lavish campaign contributions.

Mr. Obama campaigned on promises to change Washington. Unfortunately, for patients, it seems that the more things change, the more they stay the same.

Dr. Jason D. Fodeman, an internal medicine resident at the University of Connecticut, is a former health policy fellow at the Heritage Foundation.