I speak to doctors day in and day out. Many are still scratching their heads. Some have smoke fuming from their ears.

President Obama seemed to "get it" on at least one very volatile issue. Defensive medicine.

President Obama's message to the American Medical Association on June 15th, 2009 acknowledged the tort system is onerous to doctors. And he did recognize that defensive medicine is pervasive and contributes to wasteful spending. Pavlovian applause followed; perhaps the loudest applause he received during his talk- which was just shy of one hour.


The outreach continued:


The reaction: Boos.

Nonetheless, the fact that President Obama acknowledged defensive medicine as a real, costly phenomenon, was progress. He had made a sound diagnosis. In the medical world, you cannot treat a condition properly until the correct diagnosis is secured.

Fast forward. Specifics of the health reform bill finally materialized. Given the volume of pages addressing reform, surely hidden in the document were a couple of pages devoted to defensive medicine; estimated as a $100 to $200 billion waste every year (other estimates run even higher). Imagine what could be done if those funds were redeployed for more useful endeavors.

But, it was not to be. The evolving bill had little to say on that topic.

Howard Dean, former chairman of the Democratic National Committee, at a town hall meeting last summer shed clarifying light on the omission:


Now that the bill is statute, can the Administration point to any funds allocated to crafting a better health justice system - one that could definitely tackle the challenge of "lawsuit avoidance" medicine?

True to his word, a few months ago, President Obama awarded grants of money to organizations to address medical malpractice. Step in the right direction? False.

First, the amount of money granted was $25 million - for patient safety and medical liability projects. When diluted among the many grant recipients, that "ain't a whole lot of dough."

Next, the grants mainly address patients who are injured by errors, and do not address meritless lawsuits. Philip Howard of Common Good said it best:


I don't only want to be the skunk at the garden party. Sometimes there is a breath of fresh air. One grant may be promising: A program in Oregon will develop and work to implement a "safe harbor" system in which physicians who prove they adhered to evidence based guidelines are protected from frivolous lawsuits. So, there might be one wirthwhile gem in the group.

Doctors will still need flexibility to deviate from clinical algorithms or guidelines when it makes sense for individual patients. Doctors should not have to choose between immunity from litigation and doing what is right for patients. Nonetheless, as I learn more, I will keep you posted on this development from the Beaver State ("Oregon").

Back to the diagnosis. Kudos to President Obama for making the right diagnosis. It is hard to practice compassionate, cost-efficient medicine "if doctors feel like they are constantly looking over their shoulder for fear of lawsuits." But, a correct diagnosis followed by no treatment is just an academic exercise.

By the way, guess what happens to doctors who make an accurate diagnosis and fail to recommend the right treatment? They get sued.

Jeffrey Segal, MD, JD, a neurosurgeon, is the founder and CEO of Medical Justice Services. Medical Justice Services is a member organization of Center for Health Transformation. For more information email info@medicaljustice.com or visit http://www.medicaljustice.com