The Sound of Litigation*

In Ray Bradbury’s “The Sound of Thunder,” time traveling dinosaur hunters are warned to minimize changing the past or the future could be horribly altered. One panicked adventurer accidentally steps off a designated path and an apparently trivial butterfly is killed. As a result, many changes occur, including the election of a fascist presidential candidate, and the course of history is dramatically altered. Although originating in mathematics chaos theory, this “butterfly effect” concept has been adapted to varied scenarios in life to describe potentially catastrophic changes which result from seemingly relatively inconsequential events.

This same concept is just as applicable to modern health care. Specifically the unanticipated and largely ignored butterfly effects of malpractice litigation have led to the ubiquitous practice of defensive medicine which contributes significantly to wasted dollars and rising costs of health care.

For those of you that are now inclined to stop reading, assuming I am rehashing an old argument, whining, or just having sour grapes regarding tort reform, I would ask you for patience and to read a little further. This is not your parent’s tort reform. In fact, this argument has barely surfaced to public consciousness. Old tort reform, which centered on malpractice insurance premiums and capping malpractice awards has been addressed and successfully dismissed as irrelevant, such that it is no longer a substantive topic of debate in the political process. Unfortunately, this narrow focus is often perceived as synonymous with all tort reform, and has thereby effectively buried recognition that the practice of defensive medicine, born of unregulated malpractice litigation, is the reason that tort reform should be enacted in the first place.

This is a different perspective than has been previously considered with respect to health care reform. As an oncologist practicing in the community for 20 years, I think that this perspective has merit and needs to be heard and incorporated into contemporary policies. Could it hurt to hear it? Did those who crafted the Affordable Care Act seek advice from or seriously consider perspectives of physicians, those most responsible for the care of its millions of citizens? Do you even know who wrote that act and who is thereby making decisions regarding the future of your health care? Recently, one of the Act’s architects admitted that “lack of transparency [was] a huge political advantage,” and that the “stupidity of the American people” was critical to get the Act passed[1]. Such admissions should make everyone take pause and reconsider the basic tenets underlying health care policy reform.

Ignoring true reform of malpractice litigation and the practice of defensive medicine that it has fostered is a colossal mistake — a trouncing of a butterfly that will have repercussions for generations to come.

The definition of defensive medicine according to Merriam-Webster is “the practice of ordering medical tests, procedures, or consultations of doubtful clinical value in order to protect the prescribing physician from malpractice suits.” According to Dictionary.com, it is “the practice by a physician of ordering many tests or consultations as a means of self-protection against charges of malpractice in the event of an unfavorable outcome of treatment.” And even Wikipedia defines this quite appropriately as “the practice of recommending a diagnostic test or treatment that is not necessarily the best option for the patient, but an option that mainly serves the function to protect the physician against the patient as potential plaintiff.”

The practice of defensive medicine costs the American citizens hundreds of billions of dollars PER YEAR, according to published estimates[2]. The range is quite wide because it is admittedly a hard concept to measure accurately. Even more importantly however, and even more difficult to measure, are its far-reaching ripple effects on the entire medical system, both present and future.

First, it makes sense to review the age old but erroneous concept, since dispelled, that attorney’s fees, administrative expenses, and malpractice awards, drive the costs attributed to malpractice litigation. They are the most obvious and have been the easiest targets for both those who would propose and those who would oppose tort reform. Numerous studies have analyzed the DIRECT financial and practice changing impact they have on physicians, and although the dollars are significant and the impact relevant, they are a relatively minor component in the context of total health care costs. Unfortunately, despite well-meaning efforts, the focus on these particular issues has distracted attention from much greater ones. For comparison purposes however, it is useful to review some of these facts.

• Using a conservative estimate, there are approximately 18,000 lawsuits per year. Some sources estimate 50,000 new malpractice cases per year[3]. I’ll use the conservative 18,000 cases per year figure initially. Average defense attorneys’ fees and administrative costs are $52,000 per case, or $936 million per year[4].

• The average settlement is $485,000 for the 56% of the malpractice cases with a payment, or $4.9 billion per year[5].

These legal costs add up to $5.8 billion per year.

• Malpractice insurance is generally about $10,000 for internists, and much higher for the traditional high risk surgical specialties. They are highly variable according to both geography and specialty but generally range from $3400 to over $100,000 per year[6]. Utilizing an average premium of $24,000 across all specialties and across all states[7], then the total malpractice premium costs for 850,000 U.S. physicians adds up to $20.4 billion per year.

Annually, these attorney fees, administrative costs, settlements and malpractice insurance costs add up to $26.2 billion. Cost of doing business? Maybe, but who really pays for this? When one considers that according to some estimates at least 40%[8], and possibly up to 91%, of malpractice lawsuits are frivolous, the truly wasted, as opposed to the possibly wasted, dollars are still significant. Again, using the conservative estimates, for the 40% of the 18,000 malpractice cases that are frivolous, administrative costs are $374 million. If 91%[9] of 50,000 cases are frivolous, the costs are $2.3 billion per year.

Although hard to believe, these costs have been dismissed by policymakers as inconsequential because reports suggest that they represent a relatively small proportion of annual health care costs[10],[11],[12]. Regardless of the percentage, the absolute dollars are enormous and it is irresponsible to write them off as irrelevant. Even more disturbing though is that by minimizing these effects of malpractice, health care reform has ignored the less obvious, less objectively measured, but more destructive defensive medicine.

Studies report that 75% of physicians in low-risk specialties such as family medicine, pediatrics, and psychiatry, and approximately 99% of physicians in high-risk specialties such as neurosurgery and thoracic-cardiovascular surgery, will be sued for malpractice in their professional lifetime[13].

It is estimated that about 90% of all physicians, not just those that have been sued, practice defensive medicine[14]. Those physicians who have been sued practice even more defensively than those few who have not[15].

Practicing defensive medicine includes ordering more lab tests, x-rays and imaging studies, scheduling more office visits, prescribing more antibiotics, referring patients more often, and recommending invasive procedures more often than medically necessary. When listed like this, it might seem obvious that these behaviors would be easy to identify, track, and correct, and that the resultant costs would be easy to quantify. The truth is however, that these changes in practice can be and often are, very subtle, and usually so easily justified that they may not even perceived as something abnormal or excessive. Physicians may rationalize their decisions to order more as “clinical judgment”, which although extremely important to quality patient care, is by definition largely subjective. These additional lab tests and imaging studies, beget more labs and more tests to pursue and explain uncovered abnormalities. They generate additional diagnostic procedures and referrals to specialists who in turn order more tests and more procedures. Consultants do not want to impugn the referring physician, or be perceived as careless or dismissive by the patient. If another physician had enough of a concern to refer the patient in the first place and if the specialist for whatever reason “misses” something, he is potentially at risk for litigation. As the defensive virus spreads to other colleagues and over time, the numbers and costs grow dramatically.

It is evident that small differences in practice patterns can add up to significant additional expenses. As an example, if only ONE additional office visit, complete blood count[16], CAT scan of the chest[17], breast MRI[18], and consultant referral[19] are generated PER MONTH, the additional cost would be $72,000 per year. If that amount were generated as a result of each of the 18,000 annual lawsuits, i.e. by only physicians that had been sued, that would generate an extra $1.3 billion in expenses per year. That’s only 5 extra interventions throughout an entire practice of hundreds of patients seen per month. Taken more broadly, if the 90% of all 850,000 physicians that practice defensive medicine ordered comparable additional testing, the total cost would be $55 billion. And these are very easy interventions, almost second nature, for physicians to order. When additional procedures and more expensive laboratory and imaging tests are ordered, it is easy to see how these costs escalate.

In fact, more academic published estimates of the cost of defensive medicine range from $40 billion to $600 billion PER YEAR[20]. This easily more than doubles the more tangible costs of malpractice reported earlier.

Most defendants in malpractice suits continue to practice medicine, as do their colleagues who are similarly influenced. If these behaviors persist over the course of physicians’ average 30 year careers, that would cost $1.2 trillion to $1.8 quadrillion.

Despite even these data, the true financial effects of such widespread overuse are hard to calculate. The subtleties of defensive medicine can permeate physician practice routinely and may be so ensconced that they are not even recognized as such, and therefore are not reported in questionnaires and surveys that try to estimate the enormity of the problem. Defensive medicine could even lead to a new faux standard of care based on fear. These new routine practice patterns, not based on evidence, could themselves be the target of malpractice litigation and responsible for even more additional costs[21].

Whatever the exact costs, they are clearly enormous, and could certainly be put to better use. If monies spent in the name of defensive medicine could be harnessed for preventable diseases or those more effectively treated at an earlier stage of the disease process, even more money and more importantly, more lives could be saved. For example, from 2000 to 2004, approximately 125,000 people died per year from the 80–90% of lung cancers that are directly attributed to smoking. In 2012, there were approximately 225,000 new cases of lung cancer in the United States, and approximately 160,000 people were expected to die from that disease. The NIH estimates that approximately $10 billion is spent per year on treatment for lung cancer, a largely completely preventable disease[22]. Estimates for the cost of treating obesity, another preventable condition, have been reported to be $190 billion per year[23]. If dollars saved from curtailing the practice of defensive medicine could be applied even to disease prevention, not to mention additional research, especially for the few chronic and preventable conditions that account for 75% of health care expenses[24], or towards insuring the millions of uninsured Americans for that matter, they would have a much broader positive impact on patient health, the economy, and society as a whole.

While the financial costs are obvious, staggering, and almost certainly underestimated, the human costs are even more subtle, yet still very real. Unnecessary tests, studies, and procedures lead to unnecessary patient harm, both physical and emotional, including deaths. These devastating effects on the patient clearly ripple to affect family and friends, as well as co-workers and businesses, again in ways that are difficult to reliably measure.

The toll it takes on physicians is equally as difficult to quantify. The average malpractice suit takes 3 years to settle[25], and others have reported that a physician spends just over 4 years[26], or approximately 13% of a 30-year career involved with a malpractice case, during which time the defendant is distracted, and even more likely to be practicing defensive medicine. It takes time and attention away from other more productive and proactive measures to improve processes and quality control. It clearly increases stress and destroys reputations. It has been associated with increased burnout, depression and suicidal ideation[27].

And it clearly also affects ongoing patient care. In one survey of physicians that had been sued, 29% report that they no longer trusted patients and they treated them differently than before they were sued[28]. Malpractice litigation damages self-confidence, which further reinforces the defensive cycle. Physicians are trained to be independent and evidence-driven, but as much as they may try to remain objective and practice as they have been trained, the fear of litigation undermines and overshadows that objectivity. The fear of having to defend oneself, (and for those already sued, potentially a second time) is enough to cause changes in the nature of their practice with extra expenses which compound indefinitely.

These secondary effects ripple not only to contemporary colleagues, staff, and family, but forward in time to generations of future physicians making decisions for future economies and societies. There are many reasons cited for the changing physician workforce, but clearly fears and concerns about malpractice are one, especially in high-risk specialties[29]. Physicians cite malpractice risk and expense as reasons for retirement, and for eliminating high-litigation risk procedures from their practice. This leads to changes in the availability of qualified specialist physicians and can affect patients’ access to care[30]. Advice given to other physicians from those that have been sued includes practicing more defensive medicine, as opposed to evidence-based, documenting more often and more thoroughly, and removing problem patients from one’s practice[31]. It is hard to argue that these interventions directly benefit patients. Physicians involved in malpractice lawsuits are less likely to recommend medicine as a career to their children[32].

These concerns, especially when coupled with other practical pressures on practicing physicians including stricter governmental regulation, loss of autonomy and reduced reimbursements, negatively affect the future of the physician workforce and of health care in this country.

Current efforts at health care reform focus primarily on securing health insurance for everyone, eliminating fee-for-service reimbursement models, and compensating physicians based on quality metrics, i.e. quality, not quantity. This is a short sighted and misdirected plan. Health care reform is necessary but the dialogue is meaningless without attention to changing the culture of a society and a system which promotes defensive medicine.

Much of the literature cited in this area seems only to focus on malpractice insurance, claims, and settlements. Arguments and attempts have been made in the past to reform malpractice litigation which have often revolved around capping monetary damages. However, studies have demonstrated that while capping malpractice awards probably lowers malpractice premiums and may increase physician availability, the cost savings may be relatively minor[33],[34],[35]. Other studies address specifically the cost of malpractice insurance, and its effect on high risk specialties, including obstetrics-gynecology, orthopedics, and neurosurgery[36]. Even law firm marketing material focuses on these two areas and thereby defends malpractice litigation as only a minor component of health care costs[37]. While efforts to control these costs are necessary and laudable, they are only band-aides that ignore the cause and effect of malpractice, and thereby completely bypass appropriate solutions.

Manner clearly and thoroughly describes the complex issues surrounding defensive medicine[38], yet proposed solutions still seem limited in their efforts to address this practice. The concept of safe harbors has been proposed to limit the number of lawsuits filed by mandating compliance with guideline based medicine and eliminating suits if those guidelines were followed[39], [40]. Presumably, the goal is to put the burden of proof on the plaintiff to show that the approved guidelines were breached, but this seems no different than the current system where breach of standard of care needs to be proven. It seems that this approach only redefines standard of care as formal guidelines rather than that gleaned from available high quality medical literature. It is true that guideline based medicine might eliminate variations in practice of care, but given the infinite number of clinical scenarios patients present, it is unclear how many lawsuits would be avoided with this approach.

The late Supreme Court Chief Justice Warren Berger said that the United States is one of the most litigious societies in the world. Although that affords us many protections, it comes at an extraordinary cost, especially as it applies to the practice of medicine. For a meaningful and more lasting change to the costs of malpractice and healthcare, the culture of society and medicine needs to be changed.

Some argue that malpractice litigation is necessary because physicians do not do an adequate job of policing and disciplining their own. There is no doubt that true malpractice occurs and clearly needs to be dealt with appropriately. Truly compassionate, caring, and responsible physicians do understand that egregious errors and deviations from the standard of care should be addressed. However, obvious errors probably make up a minority of those cases that arise, given the statistics cited earlier regarding frivolous lawsuits. Often, the issues involved are complex and it is not so clear cut that an error has occurred. Expert witnesses are often engaged to try to determine if there was actual malpractice, and for every plaintiff’s expert who believes that malpractice occurred, there is an equally capable defendants’ expert who believes it did not. Therefore, standards of care and quality control on a physician level often can be difficult to define for every clinical scenario. Some are evidence driven but many are not. To review cases, determine if standards of care were breached, assign culpability, and fairly discipline physicians who have been accused of malpractice requires significant time and commitment from other physicians. This is impractical for most practicing physicians. To be done properly, careful attention is required to objectively review cases in detail, document findings and opinions, and meet with attorneys. Additionally, practicing physicians may worry about counter lawsuits. These issues make a practicing physician hesitant about becoming more involved in such disciplinary roles. Accusations of conflicts of interest, and potential negative effects on reputation which can harm referral patterns, also make a local review or disciplinary physician based team difficult to implement. The current climate encourages physicians to focus on the sustainability of their own practice rather than policing sometimes difficult to clarify practices of others.

Utilizing expert review boards of physicians, who have interest and more importantly time to participate in such endeavors, may be compromised by their lack of active clinical practice or knowledge of standards of care.

Some studies have shown that the majority of malpractice claims are filed, not because mistakes are made in medical care — in fact only 23% are from negligence — but because of poor communication between physicians and their patients[41], [42]. Studies have also shown that apologizing for mistakes reduces the costs of litigation[43]. This is a difficult concept for physicians to accept in a system that seems ready to capitalize on every perceived miscue. On the other hand, patients want to be treated with respect and compassion. They do not want to feel rushed or dismissed as if they are an imposition. They want and deserve to have their questions answered. Mutual trust and respect are nurtured and solidified through demonstrable and consistent compassionate and capable care.

Physicians encounter many distractions in the course of a day which intrude upon their primary focus of patient care. The pressures of declining reimbursements encourage a volume based practice which decreases time spent with individual patients. This reinforces a system that impedes meaningful trusting relationships, promotes a reflexive defensive approach rather than a thoughtful evidence-based collaborative one, and is more, not less, prone to error.

Governmental and insurance oversight and regulation requires costly full time employees and peer to peer discussions with insurance company bureaucrats to justify a physicians’ medical judgment and to obtain authorization for appropriate medical care. Insurance and legal requirements for record keeping, now in the even more expensive and time consuming electronic medical record version, largely do not contribute to the health of the patient and clearly detract from time spent with the patient. And the practice of defensive medicine itself leads to unnecessary testing, and unnecessary patient harm, and ultimately erodes the confidence in the physician and the entire health care system.

The problem is not a simple one, nor will the solution be. There are different interpretations of the data, much of which is incomplete. But it seems evident that efforts to reduce the stifling effects of defensive medicine will clearly be of benefit. Simplifying regulations, restrictions, and documentation would restore medical autonomy and free up time and money for the busy practicing physician to redirect his efforts more constructively. A focus on fair and appropriate reimbursement for physician expertise, procedures, and cognitive services, in keeping with the value they provide, as well as their significant time commitment to and cost of education and training, would greatly reduce incentives for a volume driven practice. Physicians could spend more time with an individual patient which would help to restore the all-important physician-patient relationship. Indeed, preliminary studies of the still relatively fledgling concierge practice model which limits practice volume by charging annual retainers suggest greater physician and patient satisfaction, lower costs of care, and improved quality of care[44], [45]. Finding additional methods to encourage and support re-establishing and more importantly maintaining long term, mutually respectful and trusting, doctor-patient relationships is of paramount importance to beginning to tackle the health care and malpractice crisis. The effort must be on changing the entire culture of the system rather than targeting individual symptoms of the larger problem, or specific reimbursement models.

As in Ray Bradbury’s story, wishing it weren’t so doesn’t erase the ripple effects of past actions. The problems we face are complex and many, but they do not have to be permanent. In our world, we have the opportunity to create a new butterfly effect that can repair our broken and disintegrating health care system. The root of the problem however, must be addressed.

While the goal of malpractice litigation is to hold physicians accountable and protect patients’ rights, and while malpractice clearly occurs and needs to be dealt with appropriately, any malpractice suit, legitimate or frivolous, dismissed or settled, in court or out, has negative, far-reaching, long-lasting, and devastating detrimental effects on our health care system as a whole. Sadly and ironically, these ripple effects from the legal system purported to protect patients, may ultimately be responsible for as much, if not more, physical, economic, and emotional harm than the very few physicians from whom they purport to protect us.

*Adapted from Afterward of (?soon to be published) “The Sound of Litigation”, with apologies to Ray Bradbury.

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[1]http://www.nytimes.com/2014/11/15/us/politics/affordable-care-act-supporter-jonathan-gruber-ignites-fury-with-a-word-stupid.html?_r=0)

[2] Michelle M. Mello, Amitabh Chandra, Atul A. Gawande, and David M. Studdert, National Costs Of The Medical Liability System, Health Affairs, 29:9, September 2010, 1569–1577.

[3] Michelle M. Mello, Amitabh Chandra, Atul A. Gawande, and David M. Studdert, National Costs Of The Medical Liability System, Health Affairs, 29:9, September 2010, 1569–1577.

[4] David M. Studdert, LL.B., Sc.D., M.P.H., Michelle M. Mello, J.D., Ph.D., M.Phil., Atul A. Gawande, M.D., M.P.H., Tejal K. Gandhi, M.D., M.P.H., Allen Kachalia, M.D., J.D., Catherine Yoon, M.S., Ann Louise Puopolo, B.S.N., R.N., and Troyen A. Brennan, M.D., J.D., M.P.H, Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, N Engl J Med 2006;354:2024–33.

[5] National Practitioner Data Bank 2011 Annual Report March 2013 U.S. Department of Health and Human Services Health Resources and Services Administration Bureau of Health Professions Division of Practitioner Data Banks; http://www.npdb-hipdb.hrsa.gov/resources/reports/2011NPDBAnnualReport.pdf

[6] http://www.acponline.org/residents_fellows/career_counseling/malpractice_insurance.htm

[7] http://medicaleconomics.modernmedicine.com/medical-economics/news/modernmedicine/modern-medicine-feature-articles/exclusive-survey-malpractice-

[8]Studdert, et al., Claims, Errors, and Compensation…; 2024–33.

[9] http://www.forbes.com/2008/05/05/physicians-training-prospects-lead-careers-cx_tw_0505doctors.html

[10] http://www.medmalfacts.com/help-us-spread-the-word/

[11] Limiting Tort Liability for Medical Malpractice, Congressional Budget Office, January 8, 2004; (http://www.cms.hhs.gov/NationalHealthExpendData/downloads/tables.pdf — tables 1 & 2);

2008 Update on U.S. Tort Cost Trends, Tillinghast Towers Perrin, 2008; Budget Options Volume 1 Health Care, Congressional Budget Office, December 2008, p.22.

[12] Mello, et al., National Costs…; 1569–1577.

[13] Carolyn M. Hettrich, MD, MPH; Richard C. Mather III, MD; Manish K. Sethi, MD; Ryan M. Nunley, MD; Amir A. Jahangir, MD, and the Washington Health Policy Fellows, AAOS Now, Dec 2010; http://www.aaos.org/news/aaosnow/dec10/advocacy2.asp

[14] Hettrich, et al., AAOS Now, Dec 2010; http://www.aaos.org/news/aaosnow/dec10/advocacy2.asp

[15] Ezekiel J. Emanuel, Topher Spiro, and Maura Calsyn , Reducing the Cost of Defensive Medicine; June 11, 2013 Center for American Progress; http://www.americanprogress.org/issues/healthcare/report/2013/06/11/65941/reducing-the-cost-of-defensive-medicine/

[16] http://consumerhealthchoices.org/wp-content/uploads/2012/10/Complete-Blood-Count-HCBB.pdf

[17] http://www.healthcarebluebook.com/page_Results.aspx?id=139&dataset=MD&g=Chest%20CT%20-%20(with%20contrast)

[18] http://www.newchoicehealth.com/Directory/Procedure/40/Breast%20MRI%20(One%20Breast)

[19] http://www.healthcarebluebook.com/page_Results.aspx?id=222&dataset=MD&g=Office%20Visit%2C%20New%20Patient%2C%20Level%206

[20] Mello, et al., National Costs…; 1569–1577.

[21] Paul Manner, MD, Practicing Defensive Medicine…; http://www.aaos.org/news/bulletin/janfeb07/clinical2.asp

[22] http://www.healthpaconline.net/health-care-statistics-in-the-united-states.htm

[23] http://www.hsph.harvard.edu/obesity-prevention-source/obesity-consequences/economic/

[24] http://www.healthpaconline.net/health-care-statistics-in-the-united-states.htm

[25] Studdert, et al., Claims…; 1569–1577.

[26] Seth A. Seabury, Amitabh Chandra, Darius N. Lakdawalla and Anupam B. Jena, On Average, Physicians Spend Nearly 11 Percent Of Their 40-Year Careers With An Open, Unresolved Malpractice Claim, Health Affairs, 32, no.1 (2013):111–119.

[27] Charles M Balch, MD, FACS, Michael R Oreskovich, MD, FACS, Lotte N Dyrbye, MD, Joseph M Colaiano, JD, Daniel V Satele, BS, Jeff A Sloan, PhD, Tait D Shanafelt, MD, Personal Consequences of Malpractice Lawsuits on American Surgeons, J Am Coll Surg 2011; 213:657–667.

[28] http://www.medscape.com/features/slideshow/malpractice-report/public#20

[29] Britta L. Anderson, Ralph W. Hale, Edward Salsberg, Jay Schulkin, Outlook for the future of the obstetrician-gynecologist workforce, American Journal of Obstretics and gynecology; 199 (1), July 2008; 88.e1–88.e8.

[30] Michelle M. Mello, JD, PhD,* David M. Studdert, LLB, ScD,* Catherine M. DesRoches, DrPH,* Jordon Peugh, MA,‡ Kinga Zapert, PhD,‡ Troyen A. Brennan, MD, JD,*† and William M. Sage, MD, JD§, Effects of a Malpractice Crisis on Specialist Supply and Patient Access to Care, Annals of Surgery; 242(5), November 2005; 621–628.

[31] http://www.medscape.com/features/slideshow/malpractice-report/public#20.

[32] Balch, et al., Personal Consequences…; 657–667.

[33] Leonard J. Nelson III, Michael A. Morrisey, and Meredith L. Kilgore, Damages Caps in Medical Malpractice Cases, The Milbank Quarterly; 85(2), 2007; 259–286.

[34] Fred J. Hellinger, Ph.D. and William E. Encinosa, Ph.D., The Impact of State Laws Limiting Malpractice Awards on the Geographic Distribution of Physicians, U.S. Department of Health and Human Services, Agency for Healthcare Research and Quality Center for Organization and Delivery Studies (CODS), July 3, 2003.

[35] Ezekiel J. Emanuel, MD, Less Than $26 Billion? Don’t Bother, The Opinion Pages, The New York Times, November 3, 2011; http://opinionator.blogs.nytimes.com/2011/11/03/less-than-26-billion-dont-bother/

[36] Mello, et al., Effects of a Malpractice Crisis…; 621–628.

[37] http://www.medmalfacts.com/help-us-spread-the-word/

[38] Paul A. Manner, Practicing defensive medicine…; http://www.aaos.org/news/bulletin/janfeb07/clinical2.asp

[39] Emanuel, et al., Reducing the Cost…

[40] Ezekiel, Emanuel, MD, PhD, Neera Tanden, JD, Stuart Altman, PhD, et al. A Systemic Approach to Containing Health Care Spending, , N Engl J Med 2012;367:949–954.

[41] R L Phillips Jr, L A Bartholomew, S M Dovey, G E Fryer Jr, T J Miyoshi, L A Green. Learning from malpractice claims about negligent, adverse events in primary care in the United States, Qual Saf Health Care 2004;13: 121–126.

[42] Henry Thomas Stelfox, MD, PhD, Tejal K Gandhi, MD, MPH, E. John Oray, PhD, Michael L. Gustafson, MD, MBA, The relation of patient satisfaction with complaints against physicians and malpractice lawsuits, The American Journal of Medicine; 118 (10); October 2005; 1126–1133.

[43] Return on Investment: Reducing Malpractice Claims By Improving Patient Satisfaction. Press-Ganey White Paper

[44] Joshua J. Spooner, PharmD, MS, Concierge Medicine: Origins, Growth, Controversies, and implications to Medicare, Medicare Patient Management; January/February 2007; 26–31.

[45] Elizabeth Hargrave, NORC, Laura Summer, Georgetown University, Jack Hoadley, Georgetown University, Ayesha Mahmud, NORC, Kate Quirk, NORC, Retainer-Based Physicians: Characteristics, Impact, and Policy Considerations, A study conducted by staff from NORC at the University of Chicago and Georgetown University for the Medicare Payment Advisory Commission; March 2010.

Butterflies courtesy of Matt Booth, http://tattly.com/products/butterfly-effect