A Sad Report from an M.D. Friend, Overprocessing Driven by the Legal System


As I blogged about on Friday, I was back at my alma mater, Northwestern, for a football game this weekend– well, actually, I was at Wrigley Field instead of our usual home stadium. The “confines” of “The Friendly Confines” (as Wrigley is called), led to some unusual “standardized work” for the game, which left some fans unhappy. I was lucky to be on the “good” end of the field where the teams were headed all game (see left, a rare instance where NU was about to score).

During a pre-game tailgate party, I was talking with an old friend who is now an Emergency Department physician somewhere in the U.S. (I'll protect his anonymity here).  As we chatted about my work and his, he agreed that there's far too much waste that gets in the way of him doing is job properly. But he also highlighted a particular problem that is NOT being addressed under the Affordable Care Act (aka health insurance reform).

For one, he said morale is so bad among physicians that a vast majority of them don't look forward to what it will be like to practice medicine in 20 years. As I've blogged about before, slashing the price that's paid to doctors and hospitals is NOT the same as true cost reduction. Medicare and Medicaid slashing the price paid to doctors is just as dysfunctional as the old “Detroit Three”  supplier bullying (which stood in stark contrast to a more collaboratives approach from Toyota and others) – good article on the contrast here. If it's a car company or a health insurer, demanding price reductions will often just lead to people finding more creative ways to get paid the same as before. You can't just “beat up on your suppliers.”

I asked about his first priority as a doctor – was it trying to do the right thing for the patient instead of thinking about cost effectiveness? He said no, that his first thought was absolutely about “defensive medicine” or thinking about all of the non-preventable things that COULD go wrong with a patient that they could potentially be blamed or sued for.

I don't at all remember my friend as being a huge cynic during college. He said medicine has done this to him, basically.

Through the defensive medicine, he said they feel forced into ordering all sorts of unnecessary diagnostic work – labs and radiology, or they'll admit patients when it's not really necessary. In the Lean world, we might call this the waste of “overprocessing” – doing work that doesn't add value to the patient.

My friend said “50% of the stuff we do to a patient harms them” as the built up radiation given by CT scans might cause cancer or unnecessary admissions create the risk of infections or medical errors that result from process problems.

He knows this isn't good, but he has to protect his career and his family. Again, he was apologizing for being cynical, but he said that the cancer that's caused by all of the CT scans (from a “frequent flyer” patient, for example) isn't likely traced back to them specifically as a doctor or as a hospital… so they take the short-term action at the possible expense of the long term.

I guess you'd have to be a real hero to risk your career and livelihood by always doing the right thing? First do no harm? As John Toussaint pointed out in his book On the Mend: Revolutionizing Healthcare to Save Lives and Transform the Industry, the phrase “do no harm” doesn't really appear in the Hippocratic Oath as such.

It's no wonder that my friend says nobody is recommending that their children go into healthcare and many of his doctor buddies wish they could leave the profession.

This certainly seems to be one of the sad high-level problems in healthcare that's well out of the scope of what Lean can fix…

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Mark Graban
Mark Graban is an internationally-recognized consultant, author, and professional speaker, and podcaster with experience in healthcare, manufacturing, and startups. Mark's new book is The Mistakes That Make Us: Cultivating a Culture of Learning and Innovation. He is also the author of Measures of Success: React Less, Lead Better, Improve More, the Shingo Award-winning books Lean Hospitals and Healthcare Kaizen, and the anthology Practicing Lean. Mark is also a Senior Advisor to the technology company KaiNexus.


  1. As you may know, I follow this area pretty closely, and I am sure ER docs all have this problem. If you combine what the legal system makes necessary, and what the patient asks for because they’ve seen it on TV, I would bet half of all medical procedures are not necessary and add risk without adding value. Such a bummer.

    • Yes, I think that’s part of the reason people like Dr. Don Berwick (head of CMS now) say that 30 to 50% of healthcare spending is “waste” – both in terms of things that shouldn’t be done or things that are done inefficiently.

  2. This is also a very good example of the type of system problems that are not individuals faults. I firmly believe the health care system is one of the strongest examples of how a broken system creates problems that no amount of good effort from people can solve. The powerful gains are from fixing the system.

    The entire health care system is so huge that hoping to fix it is likely a recipe for failure. Taking on properly scoped projects is a strategy to find more successes.

    The whole health care system though is often easier to see system problems that are beyond heroic individual effort to solve. As the problems get smaller it can seem that you know what heroic effort by individuals just may solve it, so why bother trying to fix the system. That is the wrong idea :-)

  3. Mark

    There is no question that the fear of malpractice allegation is so pervasive as to affect every single decision, every single doctor makes, every single day.

    Those who have tried to quantify its real cost have rarely, probably, never gone to the gemba to gain a first hand knowledge of this for themselves.

    On the other hand, the reality is that few doctors, on a percentage basis, ever get sued, but as they say, it only takes once. We react to a relatively rare event as if it dominates our entire lives, so it does. And residents are taught this, so the ingrained habits start early, and the assumptions that may or may not really be true develop.

    Studies have documented that ordering more tests does not protect doctors from allegation- doing so is an assumption that is not supported by the facts.

    Lean CAN help us if we think deeply about what really matters for patients AND for us doctors. In reality, we have a common interest in mitigating the uncertainty we both feel, the patient about the significance of their symptoms, the doctor about making the right diagnosis. In reality, the path to addressing these uncertainties is the same for us both.

    My oldest is considering medical school, and I encourage him and his friends who are thinking the same. Where else can you have engaging work, that helps people, and that will always be in need. He just has to go in with his eyes open to the realities.

    Mark Jaben, MD, ED physician for 26 years

  4. I share with you an article describing our ED’s recent efforts to reduce overproduction by navigating non-emergent patients not just away from the ED, but to a lower cost setting ( http://www.hfma.org/Publications/Leadership-Publication/Archives/E-Bulletins/2010/October/ER-Navigator-Program-Triages-Nonurgent-Cases-to-Primary-Care/ ).

    In the month since this article, we have SAFELY navigated as many as 25 patients in one day. This has required a fundamental shift from many, many involved parties (docs, RN’s, etc), including our Finance leaders, who are recognizing (and frankly driving) the recognition that revenues lost today by these efforts in the short term will be overshadowed by more dramatic cost structure reduction in the long run.

    As an ED doc who has mumbled to colleagues over the years that “half these patients don’t need to be here”, I appreciate that we our taking action to get them the timely care they are seeking, at prices the community may be more likely to afford in the long run.

  5. Less sympathy from me. Australian case law on medical negligence is a long history of doctors trying to protect themselves, protect their colleagues (like some sort of secret society) and generally avoid seeing things from the patient point of view. Who gets to make decisions, what information the patient is given, what referrals to make to other practioners (including what bribes and inducements are given).

    Add in pharmaco-negligence and you have a system the patient can’t trust, and can’t be sure the doctor he or she is paying is actually working for them, or for some other interest.

    And then add in political corruption. We had a small town doctor who was getting kickbacks from a pathology lab. The government department caught him and referred him to the public prosecutor. But then federal legislators found out about it, the doctor’s electoral district was swinging (we say marginal) and the ruling political party didn’t want the blowback of losing the only doctor in that town. Nothing done.

    And then you wonder why patient trust in medicine is worse than Toyota buyer’s trust in Toyota!

  6. I heard a doctor once say that he practiced “preventative lawsuit,” medicine. What a sad state for a doctor to be in when all he’s thinking about is trying to avert the risk of a lawsuit. My niece was a lawyer who practiced in the area of medical lawsuits and her husband is an emergency doctor. What interesting table talk they must of had. Lean might be the answer to doctor’s woe’s but it’s no wonder they are not always motivated to change the system when they’re preoccupied with these personal issues. This is true for the factory floor too, when people are not motivated to change because of psychological factors- change agents coming in might be seen as increasing the risk. The employees and doctors are just practicing “WADITW – We’ve Always Done It That Way” because it is supposedly less risky to keep on doing what they’ve always done.

    • It’s a sad state when it seems that often an individual (be it a doctor or a nurse) is blamed and held accountable for systemic errors (including adverse events that are truly considered to be not preventable).

      I think it’s not just the legal system, it’s also a reflection of our blame culture.


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