Why do cardiologists and primary care physicians tend to order extra echocardiographic examinations and imaging stress tests? Kini et al ., in their study “Association of Liability Concerns with Decisions to Order Echocardiography and Cardiac Stress Tests with Imaging,” try to answer this question, at least for academic health center physicians. Malpractice concerns emerge from this carefully done study as the only definite driver of “may be appropriate” test ordering, outweighing other variables such as risk aversion, practice site, and physician experience. But before we shake our heads in dismay at the deleterious impact of doctors’ legitimate malpractice concerns on defensive test ordering and medical costs, let’s consider this question from a much broader, multidisciplinary perspective.

Human motivation is a complex subject, even when physicians are completely honest with themselves. As Nobel Prize–winning economist Daniel Kahneman wrote in Thinking, Fast and Slow , we underestimate the power of subconscious heuristics such as availability bias (overestimating the probability of events’ recurring when they are vividly recalled). This is no less true of physicians. We can be swayed by emotion and unstated, even unrecognized, influences despite our lengthy training, code of ethics, and wide experience.

In addition to this fundamental question of motivation, every graduate school on a university campus has its own favorite motivator. Medical school graduates are terrified of malpractice lawsuits and trial lawyers in general, fears passed down from generation to generation. These legal threats are one cause of the high cost of defensive medicine, but most studies have concluded that physicians’ financial risk from malpractice is exaggerated, at least in most states. ^{, ∗}

∗ See, for example, www.PatientsforFairCompensation.org , claiming that malpractice reform could reduce health costs by $650 billion annually.

Business professors think that fee-for-service medicine contains built-in incentives for overutilization; today, even academic physicians’ salaries are often partly “productivity based.” One study found that despite protection from lawsuits, physicians still increased their orders of a profitable procedure for patients with private insurance relative to Medicaid patients. Law professors wonder why more malpractice lawsuits are not filed when, according to a recent study, medical errors are responsible for more than 250,000 deaths each year. Indeed, one survey indicated that most plaintiff’s attorneys will not take cases worth less than $500,000, suggesting that the legal system largely ignores many medical errors.

Sociology professors focus on the status of physicians in the community, their competitiveness, competency, and income needs. Psychology professors point to physicians’ egos, seeing physicians as motivated by their personal drive for control and acclaim. Most insulting of all, political scientists discount all physician complaints, because physicians are less likely to vote and contribute to campaigns than other top professions.

Such stark disagreements exist on every major university campus. The truth is probably somewhere in between all of these viewpoints. Departments rarely discuss their differences, however. Until that utopian conversation, a working definition of truth comprises the following elements:

• 1.
  

  Physicians believe too many ghost stories about their malpractice liability.

  
  
• 2.
  

  Physicians could right-size their fears by taking a short course (and continuing education) on legal liability, which varies widely depending on the states in which they practice.

  
  
• 3.
  

  Physicians’ potential liability could be dramatically reduced, not by ordering more tests but by adhering to practice guidelines. More and more states offer safe harbors from liability if you can prove compliance with practice guidelines.

  
  
• 4.
  

  Another proven way to reduce risk for liability is for physicians to be nicer to patients and, when bad outcomes happen, to be communicative, compassionate, and apologetic. Lawsuits are sometimes an expensive way of getting physicians’ attention.

  
  
• 5.
  

  Physicians could better understand their own motivations and their patients’ interests if they knew the prices patients and their insurance companies are paying for care.

  
  
• 6.
  

  Physicians should listen more to their own specialty societies. They were formed for the purpose of relieving physicians of professional burdens by offering practice guidelines, practice management tips, professional development, and continuing education.

One test of the genuineness of the fear of malpractice liability is whether, in an ideal world, defensive medicine would decline if the threat of lawsuits were eliminated. Our guess is that it would not, if only for reasons of inertia and habit. There are so many factors that drive defensive medicine that eliminating one would have little effect.

Another thought experiment is whether physicians’ ownership of their malpractice insurance companies would alleviate their unnecessary fears. In Tennessee, this is already happening. Physicians’ interests are aligned with their insurer, State Volunteer Mutual Insurance Company ( http://www.svmic.com ). The largest such company in America is Doctors Company. When physicians see their investment harmed if they don’t act responsibly, they do a better job of policing their profession.

Ghost stories usually have a grain of truth in them, but nothing as scary as the stories themselves. By working together with our specialty societies to develop practice guidelines, we can learn what we should be afraid of, and what we should not.