“Wasting Billions, Doing Injustice”

by Walter Olson on October 4, 2009

Stuart Taylor, Jr. on the need for malpractice reform:

Whatever the number, surveys of doctors and anecdotal evidence — even allowing for self-serving exaggeration — suggest that the occurrence [of defensive medicine] is high. A stunning 93 percent of Pennsylvania specialists in high-risk fields admitted practicing defensive medicine, according to a 2005 survey by the Journal of the American Medical Association. So did 83 percent of high-risk specialists in a 2008 Massachusetts Medical Society survey. That study also found that respondents’ fear of liability accounted for almost 30 percent of the CT scans and MRIs they ordered and had spurred 28 percent of them (including 44 percent of OB-GYNs) to avoid treating high-risk patients. …

Similar considerations explain why we already have specialized courts without juries for vaccine liability, workers’ compensation, bankruptcy, and tax cases.

(cross-posted from Point of Law)

{ 15 comments }

1 SmartDude 10.04.09 at 1:59 pm

I support such obvious reforms as Loser Pays and Daubert Standard testimony in the Las Vegas lottery of the corrupt medical malpractice industry.

That being said, “reform” can also be used to foist the third rate medical care that some in Congress are seeking to foist on the American people.

2 Michael Kirsch, M.D 10.05.09 at 8:53 am

Thanks for this web site. I am tired of reading that medical malpractice costs amount to about 2% of health care dollars. What about the billions of dollars of defensive medicine that physicians spend (of other people’s money) to protect ourselves? Everyone knows that the litigation frenzy in this country is stifling innovation and development. The constituency resisting tort reform is the one enriched by the status quo. See http://www.MDWhistleblower.blogspot.com under Legal Quality category.

3 Dr. T 10.05.09 at 6:59 pm

I’m a pathologist who has a different view on defensive medicine. In my view, most doctors who claim to be practicing defensive medicine aren’t. They’re practicing “as little uncertainty as possible” medicine, which is not the same thing. Many doctors are uncomfortable with uncertainty (which means they should have chosen a different profession). They will be 90% certain of a diagnosis on a non-life-threatening condition, and still want greater certainty before treating. In most cases they could go with the most likely diagnosis, prescribe treatment, and see if it works. If so, great! If not, do the studies needed to nail down the diagnosis. But, today’s doctors order test after test and imaging study after imaging study. When a pathologist or radiologist questions the requests, the doctors fall back on the defensive medicine excuse. Except, statistics show that excessive testing yields worse outcomes in malpractice suits: it doesn’t look like the doctor is being diligent; it looks like the doctor didn’t have a clue about the diagnosis. I’ve been an expert witness in a few malpractice trials, and the juries always believed the latter once the tests and imaging studies were explained to them.

4 B. RAD 10.05.09 at 8:29 pm

Dr. T

I’d like to see the statistics you mention that shows excessive testing yields worse malpractice suit outcomes. There is anything published? What is your definition of defensive medicine? It’s really no different than the uncertainty example you give I believe. Sure, there is uncertainty in medicine, but problem is, if there is horrible outcome (death of a young patient due to pulmonary embolism), and the doc didn’t order that CT scan because well, there was no real risk factors, and the D-dimer was only slightly elevated and the patient had an URI, (and we know that there are many false positives for d-dimer), what will be the emergency docs defense?
Plaintiff attorney: “doctor, this patient’s d-dimer was elevated. What’s the most dangerous and potentially fatal disorder that can cause this? Can you tell the jury? What did the patient die from?”

My point is that yes there should be some uncertainty in medicine. But when things go bad, someone will always say that something more should have been done. It’s just easier to order the CT.

5 Barry 10.06.09 at 12:27 am

The problem with discussing “defensive medicine” is that there is no good definition, other than to say that it is wasteful and unnecessary and ordered in a grand exercise of CYA for the doctor. To me, it seems that what is called defensive medicine is determined by the outcome of the test, i.e., if it is normal, it is defensive medicine, if it is abnormal, it is sound, cautious medicine.

B. Rad, to steal your example, if the d-dimer test is ordered (I have no idea what it is) and the test comes back negative and the patient is fine, then that is defensive medicine. If the test is postive and the patient is saved from a fatal pulmonary embolism, then the doctor is a brilliant hero for ordering the test that saved the patient’s life. The difference between the two is the outcome of the test. The $50, $500, $5,000, or $50,000 spent on the test is the best money EVER spent as far as that patient and his family is concerned.

You also quoted a line of questioning that a plaintiff’s attorney may put to the doctor if the test were ordered. I recognize that line of questioning as involving the failure to employ a differential diagnosis. The legal profession did not invent the differential diagnosis or the rules for applying a differential. That was an invention of the medical profession.

I am a plaintiff’s lawyer. I don’t do much medical malpractice work, but always find it curious when tort reform advocates champion the “loser pays” system for the American courts. I earnestly pray that day will someday come. My clients don’t get stuck picking up the tab for paying me for trying to right (to the extent that I can) the wrongs that someone else has done them and that the burden for that gets foisted on the loser. Perhaps there will be fewer frivolous lawsuits but also fewer irresponsible, careless defendants. It is a great talking head point, but be careful of what you wish for.

Finally, a note about the specialty courts: most proposals involving medical malpractice courts involve giving the medical profession a much stronger role in determining what cases go forward. To draw parallels, you would have patent courts run by bilked inventors, worker’s comp courts staffed by labor unions or sweatshop employers, and bankruptcy courts staffed by deadbeats, in other words, one side that has an institutional interest in how the court is conducted. The only real life parallel I can come up with was in the field of consumer credit card collections, and was known as the National Arbitration Forum, and yes, that was the outfit that the Minnesota Attorney General shut down.

I feel badly for many doctors. I know that they feel besieged by lawyers and lawsuits, but I also think that they direct a lot of anger (rightly or wrongly) at trial lawyers and not enough at insurance companies that charge ever increasing amounts for health and malpractice insurance and pay them ever less for the services they render with ever increasing headaches and burden.

6 B.RAD 10.06.09 at 11:43 am

Barry

Your comments and point of view are appreciated. As you know, medicine is not practiced retrospectively. Anyone can say a test was “defensive” and call it unecessary when it comes back negative, and can call a doctor a hero when it comes back positive. The d-dimer test is a blood test to see if there is abnormal blood clotting in the body–it is elevated in lung clots. Problem is, it’s also elevated in several dozen other diseases. An emergency doctor will order that CT scan if the d- dimer is only a hair increased, even though his or her clinical judgement says that there a very very low probability of a lung clot. Believe me, I see this just about every day, and this is just one type of exam that’s ordered for only this one problem. The cost of this to our society is astronomical.

I think medical courts would be a viable solution. There would be more just and swift compensation when harmed, there would be less emotion and grandstanding involved, and he standard of care would be truer.

7 B.RAD 10.06.09 at 11:53 am

The definition of defensive medicine is like pornography. It’s hard to define but you know when you see it.

8 Barry 10.06.09 at 9:11 pm

B. Rad:

Thanks for filling me in on what a d-dimer is. Learning something new every day …..

A response to your last couple of points:

1. The parallel between the definitions of pornography and defensive medicine is a good one. I don’t dispute that there is defensive medicine practiced, I just have a hard time figuring out how do you truly define so that it can be evaluated in an honest dollars and cents way instead of as a rhetorical club. On the example that you gave where the elevated d-dimer leads to a CT scan which is done even though the clinical judgment says the probability of finding something is low, is it still defensive medicine when the clincial judgment was wrong and the CT scan comes back abnormal? I cede your point that medicine is not practiced retrospectively, but my point was that calling something defensive medicine is retrospective — it is only wasteful defensive medicine when it wasn’t really needed.

2. You will never agree to get me to agree that the idea of medical courts are a good idea. The medical profession has a well-earned reputation for protecting its own, and I have a hard time imagining that patients would get a fair shake. I would not want to be a doctor after finding against a fellow physician as part of a medical court.

9 brooks schuelke 10.06.09 at 10:13 pm

Walter

Any studies showing that “defensive medicine” has decreased in Texas since 2003? I’ve not seen anything one way or the other. However, everything I’ve seen shows that the cost of Texas medicine has continued to skyrocket, and we’re even among the most expensive in the nation despite the stringent reforms.

10 B. RAD 10.06.09 at 11:14 pm

Barry

1. Defining medicine defensive if a test is negative is a moot point in my mind. Maybe if we had national standards of practice, we could gauge it better but I don’t think this is possible given the great variability of practice environments in the US and how the courts have changed practice patterns. The critical point is how much uncertainty is our society willing to tolerate in medicine. Of course there will be a patient that slips through the cracks, who really has the lung clot but a test wasn’t ordered because there was little supporting clinical evidence. But let’s get serious. Should we be scanning every patient who presents to the ER with a headache? Do we need to admit every patient with chest pain? Do we draw blood tests on babies with a typical upper respiratory infection “just to be sure”? Should we order a $3000 MRI of the spine of a 87 year old person who’s had back pain for 20 years, just to make sure there isn’t a tumor? When will it end? Who will pay for this? The ordering of tests does not occur to this degree in Europe and I think you’ll agree we are not healthier, in fact, we are less. You’re correct, putting a dollar figure on defensive medicine is hard but I estimate that 25-40% of studies I read are ordered defensively.

2. Docs may cover each other just as lawyers, CPAs, and plumbers do.
Are you saying you don’t believe in peer review, when you say you couldn’t be a physician after finding against one in court?
Why couldn’t courts or panels be composed of not only docs, but lay people, administrator, lawyers. Who is saying they should be composed of physicians only.

11 Barry 10.07.09 at 10:17 am

I recognize that defensive medicine is practiced, that was a point that I agreed to right off the bat. The problem that I have with the idea of “defensive medicine” as it is being used in the current political debate is that it is being used as a rhetorical club to justify capping the rights of people to recover damages for actual malpractice (not a frivolous lawsuit, but an actual, proven case of malpractice) when there isn’t a hard definition of what it is, how prevalent it is, or how much it really costs. You know it exists, I know it exists, but is the size and scope of it sufficient to justify trading away the your rights, my rights, and the rights of people who are just sitting at home thinking that something bad will never happen to them?

I think that you hit the nail on the head about what it comes down to: how much uncertainty are we willing to tolerate as a society. If the answer to that question is as little as possible, then there is almost no defensive medicine being practiced — we really want all those tests run. The converse of that is that is if there is a greater willingness to accept uncertainty, then there is probably a good deal more defensive medicine. For most people, at least when it comes to them, their family, and their close friends, the answer is they are willing to accept relatively little uncertainty. For everyone else, they are willing to tolerate a bit more unceratainty. Of course there is a disconnect there, but it is what it is.

12 Jack Olson 10.07.09 at 11:25 am

Barry, I appreciate your point about the inherent bias of specialty courts in favor of providers and against consumers. My state has a commission assigned to rule on complaints by homeowners against house builders. It is run by the builders, so it is run for the builders. The same applies to every state insurance commission. It’s what economists call “regulatory capture.”

Yet, what’s sauce for the goose is good for the gander. If self-regulation by an industry makes for poor consumer protection, why doesn’t that apply to the legal profession? A typical state bar simply ignores most complaints it receives. For instance, if you bring a complaint against a lawyer in the state of Wisconsin, there is a 3% chance of any action being taken against him. If you claim that doctors would cover for each others’ mistakes and malpractice through a specialty court, but that lawyers don’t do the same thing through the self-regulatory procedures already in place, you’re claiming an ethical superiority for lawyers which few Americans would accept. Haven’t you made an argument for changing the disciplinary procedures of lawyers, whose weak professional discipline contributes to the anti-lawyer sentiment which in the USA is as popular as popcorn?

13 B.RAD 10.07.09 at 12:09 pm

Barry

I don’t think you will ever get a dollar amount of defensive medicine because the opposing sides will never agree. I do know that the 2% of all health costs figure that’s been touted is a complete joke, when you account for all the tests, workups, hospital admissions, overtreatments, and specialty consultants obtained. There are a lot of costs that you do not directly see. This is not a chicken and egg scenario. Docs orders these exams in response to fear of
litigation. Many docs feel that even if they practice in good faith, using sound clincal judgement, they’re gonna get nailed anyway.

I disagree with you on this and think you have it completely opposite. If we as a society allow very little uncertainty, then more unneccessary tests will be ordered thus MORE defensive exams. ER docs have told me that family members of patient have requested or demanded scans on their loved one even though this is against the docs judgement. Thus, people with no medical training dictating a medical workup with a misniscule chance of having a significant finding. Doc is put in a difficult spot and most relent.

14 Barry 10.07.09 at 12:58 pm

Jack:

Apples and oranges. Most public regulatory bodies (i.e., bar associations and public health boards) do a poor job of professional oversight of both the medical and legal professions. That is different from the tort system, where only doctors are seeking the benefit of having damages caps, and the proposal for medical courts run by doctors (not attributing this to you, B. Rad) puts the hens in charge of that particular henhouse whereas lawyers in legal malpractice cases still get to face juries who, let’s face it, don’t particualrly like them.

B.Rad:

Perhaps I didn’t make my point well. I know that there are a lot of tests, etc. that get ordered because the doctor is scared he is going to get nailed, as you put it. If we as a society want little uncertainty, then those tests are actually necessary to reach the desired level of certainty, and little of it is defensive. Wasteful or excessive perhaps, but needed to reach the desired level of certainty. Whether we should require that or want that as a society and can we afford it are honest questions to ask. On the macro level, people are willing to tolerate some uncertainty, but on a micro level (i.e., their family), there is little tolerance for that, so you end up with people pressuring the ER doc, etc.

I haven’t denied that there is defensive medicine practiced, but what I am still looking for is a solid definition of what it is. Without that, a solid analysis of the cost and scope of defensive medicine is lacking and the term become a rhetorical club in the context of the medical malpractice debate. Keep in mind, I don’t believe that the defensive medicine is a myth, but do wonder about its prevalence when you look at it from the micro level — what would I want for my family?

15 Ron Miller 10.08.09 at 8:31 pm

A lot of interesting points here on both sides. I’m just impressed by the tone of this conversation. No personal insults, people having an actual conversation. All good.

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