Using Fear of Lawyers to Train Medical Students is Costing a Lot of Money!

The running joke of the Disney Monsters,Inc. movies is that there really are monsters in little kids’ closets, but they aren’t dangerous.  Too often in medical education, lawyers and law suits are used as “monsters in the closet” to scare medical students into paying attention.  This, I suggest, has become very expensive.   A recent post in the Harvard Bill of Health blog by former medical student Deborah Cho quite accurately describes how little accurate information medical students get about the law–and how much they come to dislike and mistrust lawyers.   Although I haven’t seen research tracking how often the phrase “or you will get sued” is used in instructing medical students, based on my own observations it may be as common as “listen-up” was in my seventh-grade gym class.  Without even addressing the vast literature suggesting that positive instruction is at least as instructive as negative, I contend we just can’t afford the malpractice bogeyman.  The question now is what can be done about?   Tort Reform won’t solve this problem–because it will never eliminate the possibility of being sued.  But maybe a change in medical education will.   The first step towards change is to realize that words and attitudes matter–drumming in a constant fear of being sued cannot help but affect how doctors see their work.

Another reason to reconsider an education based on the fear of law suits is that eliminating that may cause of peace of mind, but they won’t appreciably lower health care costs.    The extremely impressive work of Tom Baker, Charlie Silver, David Hyman and Uwe Reinhardt has made clear that law suits represent a very small part of health care costs.  Perhaps as little as less than 1%.   It is apparently the fear of being sued that causes doctors to say that they practice a more expensive form of medicine–“defensive medicine.”   As much as this is a matter of faith among physicians, it’s a phenomena hard to document because there is no way to tell how they would practice without this fear.  A Harvard research team published an article in 2010 reporting their conclusions that  physicians in states which had adapted extensive malpractice reform still had a significant fear of being sued.   They call  the phenomena  “irrational fear of malpractice.”   And things don’t seem to be getting any better.  This article from Forbes  (for those who can’t access Health Affairs) describes  a paper from 2013 showing much the same results.   Part of the problem seems to be that doctors aren’t accurately assessing the risk that they will be sued–or what they could do to prevent it.   Maybe they would benefit from this kind of  risk assessment training as much as their patients.  As I’ve written before, no amount of malpractice reform short of elimination this will make any difference if the fear of medical malpractice is not based on actual risks and actual consequences.

The damage that this fear does to the economy, to doctors themselves, and to patients who perhaps are overtreated is so significant that it might also be helpful to consider who benefits from it–perhaps only those with an interest in selling malpractice insurance?

Now would be a good time to look more carefully at how the hidden curriculum–what doctors actually do rather than what they tell students to do–is raising medical costs.  And to consider what to do about it.

Why not conduct a well-run trial of a training program that deliberately avoided the threat of malpractice during training–and see if it makes any difference.?   This will be hard–because the trope of “it’s us versus lawyers” starts as early as the first day of orientation.  Another thing that might help is   some direct instruction in the realities of medical malpractice–like that most doctors win, that a very small percentage of physicians are responsible for most of the malpractice claims and that very few if any physicians are anything close to “ruined” by an honest mistake.   No one wants to be regulated or monitored.  But who knows–maybe in time fear of law suits will not play such a large role in medical education and doctors will see lawyers exactly like the cast of Monsters, Inc., just doing a job but not actually hurting anyone.


Cross Post from Healthlawprof

Jennifer S. Bard

Jennifer S. Bard is a professor of law at the University of Cincinnati College of Law where she also holds an appointment as professor in the Department of Internal Medicine at the University of Cincinnati College of Medicine. Prior to joining the University of Cincinnati, Bard was associate vice provost for academic engagement at Texas Tech University and was the Alvin R. Allison Professor of Law and director of the Health Law and JD/MD program at Texas Tech University School of Law. From 2012 to 2013, she served as associate dean for faculty research and development at Texas Tech Law.

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