Why Do Doctors Have to Play Defense?

The Supreme Court rendered its decision in Dobbs versus Jackson Women’s Health in June of this year. Not long afterward, Dr. Louise King started hearing how it was affecting women’s health care.

KING: We hear these reports of delays in care for ectopics or miscarriages and trying to reach some particular moment in time where it’s life threatening so that you can intervene, which is not how we practice medicine. We intervene way, way ahead of time before something gets to that point.

The Dobbs decision overturned Roe versus Wade, and nearly 50 years of legal precedent guaranteeing the constitutional right to have an abortion in the U.S. In some states, abortion immediately became illegal, or nearly illegal. It also caused confusion about what doctors were allowed to do.

KING: Anybody who is in one of those states is carefully trying to negotiate the laws and stay within them as much as they possibly can, even though that compromises their delivery of standard care.

Louise is an obstetrician-gynecologist at Brigham and Women’s Hospital in Boston, but she’s also a lawyer. “Standard of care” is a legal term, and a medical one. It usually refers to a diagnostic or treatment process that a clinician should follow for a certain type of patient, illness, or clinical circumstance. Sometimes though, as Louise described, a physician’s ability to deliver the standard of care is compromised by the law and the legal system. So, what happens then?

From the Freakonomics Radio Network, this is Freakonomics, M.D. I’m Bapu Jena. Today on the show, the Dobbs decision is new, but health care providers worrying about the legal consequences of their actions is not.

MELLO: I think it’s fair to say pretty woven into the fabric of medical practice for physicians to seek to protect themselves.

We’ll talk with lawyer and health policy expert Michelle Mello about what happens when physicians seek to protect themselves, whether they’re providing reproductive care or any other service. And then, Dr. Louise King and I will talk about the big questions facing her field in light of the Dobbs decision.

KING: OB-GYN has always been at the center of ethics, mainly because of the focus on abortion and how we provide that care, can we provide that care.

MELLO: It was a couple of things that drew my interest. One was just personal. I was friends with a lot of med students and interested in the process of socialization as they became physicians. It became clear to me pretty early on that liability was something that was on their minds, even as trainees and that it was affecting the way they thought about their patients.

Michelle Mello was friends with future doctors, but she didn’t want to be one. Instead, she became a lawyer who thinks a lot about doctors and what they do. Now, she’s a Professor at Stanford Law School and Stanford Medical School, where she tries to understand the effects of law and regulation on health care — particularly in the areas of liability and medical malpractice. Concerns about being sued for malpractice or negligence can cause doctors to change the way they do their work — a change that’s referred to as “defensive medicine.” This change has costs for patients, and for the health care system. In 2010, Michelle and a few co-authors estimated that the bill for defensive medicine was around $46 billion annually.

MELLO: We generally define defensive medicine as engaging in clinical behaviors, primarily because you would like to reduce the risk of a lawsuit and not primarily out of clinical judgment.

JENA: So, let me build on that a little bit further. If a doctor does something — orders a test, let’s say — because they’re worried about the threat of liability, but that test is actually appropriate and helps the patient, you wouldn’t call that defensive medicine. Would you?

MELLO: I would, because my definition jumps off the physician’s intention. What was the reason why the test was ordered? Well, in your hypothetical here, it’s ordered because the physician would like to reduce liability. Now, many of the things that physicians do because they would like to reduce their liability, in fact, may end up helping the patient, or at least being neutral with respect to the patient’s welfare. But we don’t sort of subtract it from defensive medicine because it happens to prove to have been the right call.

JENA: I might kind of separate those two because one sort of behavior is in an economic sense, wasteful. So, if doctors are worried about the threat of liability, they order extra laboratory tests, extra imaging, that’s not clinically useful or appropriate, that just generates waste for the system, but doesn’t generate any benefit. So, that really feels like wasteful defensive medicine. Whereas the other sort of medicine that you described, where the intent of the doctor might be the same to reduce their risk of being sued, but they’re actually doing something that’s helpful for the patient — that feels to me like the intent of the malpractice system.

MELLO: Well, I think the way legal scholars tend to think about it is that the intent of the malpractice system is to deter negligence. It’s to discourage physicians from practicing below the legal standard of care. So, there are lots of things that we want doctors to do for patients, because we know that for patients in that same or similar situation, it ends up being useful to them and not wasteful.

MELLO: If a physician does those things — probably due to a variety of forces, right? Maybe they’re concerned about liability, but also they know this is usually the right thing to do for a patient like this and also maybe they know they’ll get more payment if they do the thing. That’s deterrence. That’s sort of bringing physicians to where we want them to be. Defensive medicine is that nether region above the deterrence cut off, where physicians are now doing things for reasons that are more divorced from their clinical judgment and that are more likely to result either in waste, or, actually because some of these behaviors are not doing more stuff they’re doing less — could result in harm to patients who are not able to get the care that they need.

JENA: Are there terms to refer to those two types of behaviors? One where you’re doing more and one where you’re doing less?

MELLO: We call the doing more stuff, assurance behaviors, and we call the doing less stuff, avoidance behaviors.

JENA: How common would you say these two types of behaviors are?

MELLO: They’re really common. When we do survey physicians, we see very, very high levels of people saying, yes, I do these assurance behaviors often. Yes, I do these avoidance behaviors often.

One survey Michelle and some co-authors did shed a lot of light on just how often physicians engaged in assurance and avoidance behaviors. In 2003, they surveyed 824 physicians in Pennsylvania across six specialties. It was a volatile environment for malpractice insurance, especially in Pennsylvania. The cost of liability insurance in the state had shot up, mostly due to the high price of investigating, defending, and paying legal claims in the state at the time. As a result, physicians, hospitals, and medical groups were struggling to find and retain coverage.

MELLO: To take kind of the worst-case scenario, when we surveyed physicians in Pennsylvania back in 2003 at the height of what people call the “malpractice insurance crisis,” 93 percent of them said that they practice defensive medicine sometimes or often. And 42 percent of them said that they do these avoidance behaviors, which are the cutting back on high-risk procedures, refusing to see groups of patients that they perceive to be higher risk of suing them, those things that can really lead to patients having difficulty accessing the care that they need.

JENA: When you say, “assurance behavior,” can you give an example of the type of thing that a doctor might do to avoid the liability risk?

MELLO: Well, the paradigmatic example is probably ordering expensive scans, like a C.T. scan or an M.R.I. when the doctor doesn’t really think is indicated.

MELLO: But there are other forms as well. Physicians could prescribe more medications than they think are medically necessary. Especially if the patient’s asking for particular medicine, for example, antibiotics for an infection that the physician thinks doesn’t require it. They suggest invasive procedures like biopsies to confirm diagnoses that they already feel pretty confident about. And then again, on the avoidance behavior front, it’s mostly cutting back on high-risk procedures like delivering women who are higher risk for adverse pregnancy outcome or avoiding caring for certain kinds of high-risk patients. I’ve had physicians in this Pennsylvania survey, for example, tell me they don’t like to take care of lawyers.

JENA: Interesting. By the way, I have tried to look at whether or not — in large scale data whether doctors treat lawyers any differently. I haven’t found any evidence of it yet, but not to say that it doesn’t occur.

MELLO: I’d add just another wrinkle, is that in addition to avoiding high risk patients who might be more likely to require high risk procedures, there is evidence that physicians will curtail just doing whole categories of procedures that push them up into a higher bracket of liability insurance costs. Like if I’m an OB-GYN, maybe now I’m just going to do G.Y.N., I’m not going to deliver babies anymore.

JENA: So, that paper that you described, that was based on the survey of doctors in Pennsylvania. I mean, basically found that everybody, or almost everybody, engaged in at least some form of defensive medicine. And to me, that, almost suggests that defensive medicine is like — in a sense it’s medicine itself, it’s so deeply ingrained that these doctors didn’t know how to practice medicine without it.

MELLO: Well, again, that survey is conducted in a high-risk state at a high risk time. So, you know, hopefully in peace time, it’s a little bit less common than it was in this survey. But still, you know, I think it’s fair to say pretty woven into the fabric of medical practice for physicians to seek to protect themselves.

MELLO: And that’s not surprising.

JENA: Are there any fields that are more likely to exhibit these behaviors where the malpractice liability risk is particularly high or your sense is that defensive medicine is just much more common?

MELLO: Yeah. there are variations in the risk of suit across specialties and the specialties that tend to have the highest risk are emergency medicine physicians, various kinds of surgeons, especially orthopedic and neurosurgeons, and obstetrician gynecologists.

JENA: So, that maybe is a good segue to the issue of the Supreme court decision recently with respect to Roe v. Wade. What would be your prediction then with the Dobbs decision for O.B.s, who are thinking about whether or not to continue practicing abortion? What is your early take on this issue?

MELLO: The natural extension of physicians concerned about defensive medicine would be that we would expect them to almost be over-complying with restrictive abortion laws, if they feel uncertain about their vulnerability to, depending on the state, criminal prosecution or civil suit. That’s what defensive medicine arises from. It arises from uncertainty. I don’t know what I’m supposed to be doing here to meet the legal standard of care. And so, I’m going to do everything possible to protect myself. What makes the abortion case different, I think, from at least the assurance behaviors that we’ve been talking about, like doing more tests or giving more referrals, is that no longer can a physician maintain an inner monologue that says, well, this won’t hurt my patient and might help. That’s patently untrue when it comes to reproductive healthcare. So, it tends to resemble more of physicians’ decisions to engage in these avoidance behaviors. But it’s, you know, one of those decisions on steroids because this is not sort of a deliberate decision on: “I want to stop delivering babies,” or “I don’t want to see women with high-risk pregnancies anymore.” This is a response to a patient who is right in front of the physician in the moment asking for and requiring medical intervention.

JENA: So, imagine a provider is in a state where abortion is now banned in some form. And they’re seeing a patient who has, uh, maybe let’s say an ectopic pregnancy and there’s a risk of harm to the mom. How does the provider then think about these different legal risks? Because on one hand, there’s the risk associated with providing an abortion. That’s the legal risk that is new now. And on the other hand, there’s a risk of not performing standard of care for the mom. How would a provider negotiate or balance those two legal issues?

MELLO: I think it’s really, really hard right now. And I would not expect any provider to feel comfortable navigating that situation without advice from legal counsel, which hospitals around the country are now busily trying to put together. But you’re absolutely right that there are conflicting legal obligations here. And the upshot of that is even if you wanted to practice defensively in that situation, it’s not clear what the right decision is. So, on the one hand, you’ve got this fear of possible prosecution or civil suit under restrictive state abortion laws. On the other, it could be medical malpractice not to treat the patient in this situation. Probably is. And additionally, if this is a patient seen in an emergent care setting and the patient is not stable and the treatment that’s required to stabilize the patient’s condition is abortion services, that’s a violation of federal law.

JENA: And do you think some of this gray area might be purposeful in some sense? I mean, there’s a tremendous amount of chaos that’s being generated. Docs perhaps are scared of performing abortions in medically indicated circumstances. There’s sort of this chilling effect. What are the byproducts of this ruling?

MELLO: You know, the main byproduct is that it leaves it up to state legislatures to adopt more or less any law that they would like restricting abortion. And you may be right that some of those legislatures have chosen to be deliberately vague, inserting language, in most cases, providing exceptions to save the life of the mother, for example, or to prevent, you know, serious health harms to the mother, but not defining what those are. If you’re someone who would like to have as few abortions as possible then that kind of strategic ambiguity in the law could produce exactly the kind of result that you want. At the same time, when a law is deliberately vague like that, there is latitude for reasonable practitioners on the ground to come in and interpret it the way that they want.

Where does all of this leave patients? And what ethical challenges will abortion care providers face as they enter this new era?

KING: They might permanently lose their license. They probably have a family to care for. That’s their livelihood. That’s a lot to ask of an individual person.

I’m Bapu Jena, and this is Freakonomics, MD.

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JENA: I think you’re probably the first bioethicist I’ve talked to on this show. So, maybe you could tell me what does a bioethicist do?

KING: One thing that we really don’t do is truly answer questions.

JENA: Perfect. Just like economists.

As you’ll hear, Dr. Louise King DID answer my questions during our interview, though in her field right now, that’s not so easy to do. She’s a gynecologic surgeon and a bioethicist at Harvard Medical School, a combination that sometimes also requires her to think like a lawyer — her old job. And that’s especially true since the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health. So, far, at least 13 states have banned most abortions, either totally or after a certain number of weeks. More are expected to follow.

JENA: Can you just say at a high level, what does abortion care entail?

KING: Sure. Abortion or terminating a pregnancy — statistically it’s in the first trimester that it most often happens. So, very early in a pregnancy. If it’s early enough, it can be done with medication, which is typically the safest and best option, but early surgical interventions — procedural interventions — are very, very safe. Abortion care is some of the safest care that’s provided throughout all of medicine. And then there are very complex areas of rare instances where people who actually would like to continue a pregnancy find later on that they are facing either a situation where a fetus developing has no chance of survival or a very little chance of survival, or that they themselves have become ill with various conditions that make carrying the pregnancy term incredibly dangerous and life threatening.

KING: And so, those would involve a provision of a later term abortion to effectuate the best possible result. And then finally, ectopic pregnancies can be treated with medication, which is an abortion or with surgical means, which is also technically an abortion.

JENA: It sounds to me like you would describe abortion as healthcare.

KING: Oh, 100 percent. It’s essential healthcare. OB-GYN has always been at the center of ethics, mainly because of the focus on abortion and how we provide that care, can we provide that care. That pervades everything.

JENA: As an ethicist, as someone who sees and treats women medically, what tradeoffs do you see when you think about the autonomous decisions and rights that women have?

KING: I believe that as human beings, we each have the right to bodily autonomy. I should be able to decide, for example, if you needed a kidney to save your life, whether I’m going to give you one or not from my own body. Giving you my kidney is actually less risky than, for example, if I chose to carry a pregnancy to term and have a child, which is incredibly risky still, despite all our advances. So, at the end of the day, I want every human being to be able to make those choices. The tradeoff is that when I decide not to give you my kidney, you will die. Or not to give you blood, potentially, if you’re in a horrific car accident and you need enough blood to survive and we don’t have enough, you will die. So, if we all had a different conceptualization of our bodily autonomy, where we would be required to give of ourselves in that way, then I might perhaps have a different idea of how I see these bodily autonomy rights for persons who can become pregnant. But given that we have centuries of tradition where you can decide if you’re going to give of yourself in that way, I think we should maintain that for those who also have uteri and can carry pregnancies.

JENA: I don’t think an economist would be able to put it as eloquently as you did.

KING: That’s kind of you.

JENA: Obviously it’s very early to think about what the legal ramifications will be for providers after the Dobbs decision, particularly in states where the laws have changed. But, do you have sort of any insight, at least based on your colleagues who may practice in those states? I’ve certainly heard anecdotes, but I haven’t seen anything systematically described yet as to how providers views about the safety of themselves providing abortion care have changed.

KING: My knowledge of the law allows me to understand that anybody who is in one of those states is carefully trying to negotiate the laws and stay within them as much as they possibly can, even though that compromises their delivery of standard care. Because if you’re charged with a felony, you immediately stop practicing. It’s not like you can have a felony hanging over your head and continue to provide medical care. Your license is now suspended. And these laws apply to everybody who provides care. So, for a surgical termination, that’s anesthesia, nursing, the physician themselves. Does it apply as well to transport and housekeeping? I mean, are they all charged? How many people are we taking out of circulation to fight these felony charges while decimating an already incredibly strained healthcare system? So, I understand why providers are very carefully trying to figure out how to provide care within these laws. If I’m only wearing my law hat, then I would say, “Oh, but we want to challenge the laws.” But again, that’s asking a lot of any individual person to be the test case to remove themselves from practice, leaving their patients behind, and not to mention the personal consequences of that.They might permanently lose their license. They probably have a family to care for. That’s their livelihood. That’s a lot to ask of an individual person.

JENA: The potential repercussions here for doctors are enormous. And I think it’s helpful to think about, well, how would doctors respond to legal risk in situations, which are far less extreme? So, let’s step away from abortion care, but there’s all sorts of other things that OB-GYNs do that lead to concerns and threats about malpractice liability. And how does provider behavior change when they’re worried about those issues?

KING: The classic example of what you’re describing is forceps delivery. The liability for forceps delivery and specifically for birth injuries and brachial plexus injuries that stretch along the neck, that then can lead to a palsy or not being able to move your arm — that can happen as you put forceps around the head of an infant and pull them against the vaginal canal, pulling their shoulder and pulling that nervous structure. And then that prompted a lot of defensive medicine, more cesarean sections likely, because people were trying to avoid those injuries. It wasn’t solely in response to litigation, but the malpractice insurance costs went so high that many people had to leave practice. Whole states saw entire OB-GYN departments completely empty because of these litigation risks and because of the high costs associated with them. At the end of the day, again, what that led to was higher cesarean section rates. And now we’re dealing with the end result of that, which is that multiple cesareans are actually quite dangerous. They can lead to conditions called placenta accreta and all kinds of problems associated with it. So, we want to now decrease the cesarean section rate and we’re working hard to do that.

JENA: When we think of defensive medicine, what we’re classically thinking about is doing more to avoid the threat of liability, but the mirror image of that is sometimes referred to as avoidant medicine. And that actually is very closely related to this issue of what providers may do in response to Dobbs. Do doctors avoid certain types of procedures because they’re worried about liability or some other implication of performing that procedure?

KING: There’s so many areas in the health for persons who identify as women or for trans men where many, many providers are not affording persons all the care that they could have. And sometimes that’s the stigma issues. And sometimes it’s lack of training. And sometimes it’s avoiding liability risks.

JENA: This is a very hard question to speculate on, but as you think about where OB was 30 or 40 years ago, where it is now, and where it will be in the future, I’d like to get your thoughts on the Supreme Court ruling — what impact it may have on the training of resident physicians?

JENA: Do we think that fewer people will want to enter the field or more people?

KING: Oh, that’s a great question. Again, we need a little bit more data for me to answer. So, I’m truly speculating. I think that there is going to be a large proportion of people who do not choose to go into obstetrics and gynecology because of this ruling and because of the uncertainty of what training they would be afforded or the uncertainty of what their practice would be. There’s going to be a small set of people who are fired up and choosing it specifically to fight the fight. And that’s great. But we will have fewer people applying, I believe.

JENA: And you could imagine that there would be long term ramifications and spillover effects from that. I mean, so for example, many women receive their primary care through OB. So, if we have fewer OBs training because of this particular ruling, that could have spillover effects on women in ways that are completely unrelated actually to abortion care.

KING: And many of those women receive their preventative care through Planned Parenthood because they don’t have insurance yet. They can get free preventative care there. So, all of those people are going to have fewer access points at which they can get the care they need.

It’s hard to predict what the future will bring when it comes to how the Dobbs decision will impact medicine. What we do know is that the law influences the way doctors deliver care, and sometimes, if they deliver it at all. There’s a lot for reproductive health specialists to consider these days, and clarity isn’t exactly around the corner. Here’s Michelle Mello again.

MELLO: My sense is that we are in the worst of it right now because there’s just so much uncertainty among physicians about what exactly their state requires, what exactly they’re allowed to do. I’ve certainly heard of efforts within hospitals to try to clarify these matters and adopt policies and provide information to their staff. I do hope and maybe optimistically expect there will be more efforts from professional organizations to help providers understand the law to help them navigate some of the issues that are arising now with electronic health records, how to minimize potentially incriminating information in the medical record, and other things like that.

That’s it for today’s show. I’d like to thank my guests, Michelle Mello and Louise King. And thanks to you, of course, for listening.

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Coming up next week: the pandemic has changed a lot about medicine, including how we’ve gotten care

MEHROTRA: It’s not that telemedicine didn’t exist before the pandemic, it just was happening in very small numbers.

When COVID hit, telemedicine use in the U.S. exploded. Things were moving quickly, and there wasn’t time to consider what the implications of this shift could be, if any.

LAWRENCE: There may actually be something more inherent in the telemedicine experience that makes it potentially less efficient than any of the current models of care.

Telemedicine has generated a lot of excitement in health care. It made delivering care to patients convenient and safe during a scary time. But has it made doctors’ jobs any easier? That’s next week, on Freakonomics, M.D.

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Freakonomics, M.D. is part of the Freakonomics Radio Network, which also includes Freakonomics Radio, No Stupid Questions, and People I (Mostly) Admire. All our shows are produced by Stitcher and Renbud Radio. You can find us on Twitter and Instagram at @drbapupod. This episode was produced by Julie Kanfer and mixed by Eleanor Osborne, with help from Jasmin Klinger. We also had help this week from Lyric Bowditch and Jacob Clemente. Our staff also includes Neal Carruth, Gabriel Roth, Greg Rippin, Rebecca Lee Douglas, Morgan Levey, Zack Lapinski, Ryan Kelley, Jeremy Johnston, Emma Tyrrell, Alina Kulman, and Stephen Dubner. Original music composed by Luis Guerra. If you like this show, or any other show in the Freakonomics Radio Network, please recommend it to your family and friends. That’s the best way to support the podcasts you love. As always, thanks for listening.

JENA: Julie has been writing to me, in our chat that the editing will be easy for this episode. And I wrote back, “It’s because they’re lawyers.”

MELLO: Well, I think my students would agree that most lawyers need to be edited heavily. We’re paid by the word.