“Study: Malpractice worries help drive health costs”

by Walter Olson on April 21, 2010

“A substantial number of heart doctors — about one in four — say they order medical tests that might not be needed out of fear of getting sued, according to a new study,” reports the Associated Press. The study appeared in the American Heart Association journal Circulation: Cardiovascular Quality and Outcomes. More: WSJ Health Blog.

{ 21 comments }

1 Defense marketing obviously works 04.21.10 at 8:24 am

Of course the study asks, “we asked under what circumstances they would order a cardiac catheterization “for other than purely clinical reasons.”

27% stated they would order a cardiac catheterization if a colleague would…

24% feared malpractice

I argue that if a doctor performs a cardiac catheterization because of reasons “other than purely clinical” including “my colleagues ordered one”, then they should fear a medical malpractice claim if they cause harm. How would you like a perforated heart on a test the doctor ordered because of something other than a purely clinical reason such as “my colleague would order one”.

I find the “study” ridiculous because of the conclusions regarding the physicians finances. What do you mean physicians deny their greed in performing tests for money?!?

I enjoy reading this blog, but this post reminds me of the chicanery of Al Sharpton. This article = Al Sharpton.

2 Justinian Lane 04.21.10 at 9:12 am

I would also note that “other than purely clinical reasons” includes those situations where the doctor sees some clinical benefit to it AND is afraid of a malpractice suit. In such an instance, the doctor was nudged towards being more cautious because of the tort system. Is this a bad thing?

3 gitarcarver 04.21.10 at 6:58 pm

Is this a bad thing?

As a matter of fact, yes. The doctor is not being cautious because of the benefit of the patient, he is ordering the test simply for as protection against a lawsuit.

There is only one valid reason to order a test and that is clinically based. If you want to add all sorts of “pluses” into the equation, you are just proving the point that costs would be less and doctors would concentrate more on the patient if the threat of a lawsuit were not hanging over their heads.

4 antiredistributionist 04.21.10 at 10:52 pm

Mr. Lane’s logic is the same logic that led The Office’s Michael Scott to claim that he was a hero who saved Meredith’s life by hitting her with his car – because her rabies was diagnosed while she was hospitalized for the broken hip he caused.

5 Defense marketing obviously works 04.22.10 at 8:59 am

Gitarcarver -

The study shows that doctors are more prone to order tests ‘because their doctor friends also order the tests’ than malpractice concerns! They want to earn more money! More tests = more information and more money.

If they do not want to face a malpractice claim, then provide the appropriate standard of care! If you are driving your car, you pay insurance (hopefully) and try to avoid hitting others. If you hit someone (if a physician fails to provide the standard of care), then insurance is supposed to pay for the damage. Insurance never pays medical malpractice claims until the day of trial. No lawsuit = no payment of claim.

The real increase in medical costs comes from the failure of medical malpractice insurance companies to pay their responsibilities.

6 B.RAD 04.22.10 at 1:56 pm

“They want to earn more money! More tests = more information and more money. ”

A myth. Docs that I know in more than 20 years of practice don’t make a dime from tests they order.

“Insurance never pays medical malpractice claims until the day of trial. No lawsuit = no payment of claim”

Maybe in your world this happens. Who then pays for the vast majority of cases that settle before trial? It’s not out of the docs or hospitals pockets.

“If they do not want to face a malpractice claim, then provide the appropriate standard of care!”

Does not happen in the real world and does not stop a doc from being named with a shotgun approach as a defendant among many defendants despite providing standard care. I know physicians sued despite being the ones that made the correct diagnosis.

7 Defense marketing obviously works 04.22.10 at 4:44 pm

BRAD

#1, please state one hospital or doctor that conducts tests in a clinical setting and not part of a funded study, but does not issue a bill. None exist. I find very hard to believe the docs you know charge “zero” for the tests they conduct; unless the “doctors” you know are merely hired guns for insurance companies who keep them on retainer.

#2 “who” pays is vastly different then “when” they pay. Of course insurance companies pay – ONLY on the day of trial. Insurance companies offer “zero” before the day of trial. Insurance companies love lawsuits because ‘they’ are not the defendant.

#3 Every medical malpraictice lawsuit requires a physician to sign an affidavit stating the treating physician (defendant) violated the standard of care. I think your real world is “defense marketing”. You also use very slick, insurance company logic. The doctor that perforated John Mertha’s large intesting made the “correct diagnosis” of removing Mertha’s gall bladder. The problem occurred when the doctor violated the standard of care ‘removing’ the gall bladder.

Slick, slick insurance company marketing…but I hand it to you…juries obviously buy your slight of hand….

8 antiredistributionist 04.22.10 at 7:13 pm

dmow knows little about the way medicine is actually practiced and less about the med mal liability system.

First, B.RAD is absolutely correct that the doctors who order tests very seldom perform them. The tests are performed by labs or other physicians/specialists, who then provide reports/interpretations to the ordering physician.

Second, med mal cases are very seldom settled on the day of trial. They settle far more often at mediation, or in negotiations between counsel after each side has conducted enough discovery to evalaute the merits of their cases. dmow thinks a carrier should just write a big check based on the allegations of plaintiff’s counsel.

As for “loving” lawsuits – even if there is a large deductible, every dollar spent defending a case (the vast majority of which is spent in pretrial discovery) increases the proportion of the settlement amount for which the insurer is ultimately responsible. In addition, in many states, an insurer’s refusal to settle when the insured wants to settle exposes the insurer to a bad faith claim.

As for the requirement that there be an affidiavit from a doctor saying that the defendant doctors breached the standard of care – please. I have seen an affidavit from a local plaintiff’s expert in which he swore that a cardiologist (that is, a non-surgeon who was nowhere near the OR) deviated from the standard of care while performing coronary artery bypass grafting. I have also seen an affidavit in which the expert swore that every health care provider involved in the plaintiff’s eight week course of treatment – cardiologists, vascular specialists, a neurologist, a cardiothoracic surgeon, rehabilitation specialists, multiple radiologists, dozens of nurses – all deviated from the standard of care by “failing to properly address X’s vascular issues.” These are just two examples illustrating that the pre-suit affidavit requirement does not protect health care providers from baseless filings.

9 B.RAD 04.22.10 at 7:27 pm

Antiredistributionist:

Very well said, you stole my thunder but I couldn’t have put it any better!

10 gitarcarver 04.22.10 at 8:22 pm

The study shows that doctors are more prone to order tests ‘because their doctor friends also order the tests’ than malpractice concerns!

No, the study does not show that at all. The study gives the reason that besides purely clinical reasons, doctors will order tests if other doctors say they would.

“What other doctors might do, think about, don’t do, etc,” then becomes the defacto standard of care. When a plaintiff sues, one of the things in the shotgun approach is often that the doctor failed to follow “standards of care.” The “standard” then becomes not what is clinically accepted, but what “some other doctor might have done.”

Of course to protect themselves the doctors are going to order a test if, in spite of the clinical assessment, some other doctor says he would do the test.

If you hit someone (if a physician fails to provide the standard of care), then insurance is supposed to pay for the damage. Insurance never pays medical malpractice claims until the day of trial.

Once again, you are failing to define “standard of care.” What the clinical assessment says should be done is the “standard of care,” not the ever changing “looking back even though I wasn’t there, bever examined the patient, never spoke with him, never spoke to his family and never spoke the attending physician, I would have done this…..” is not a “standard of care” that anyone can attain.

Using your analogy, if you get hit by another car while legally driving along, the person should be able to sue you because other people say you should have taken a different route.

Try reading the account of a real doctor who did nothing wrong and was sued simply because the family was distraught and they found some hired gun to say “I might have done this test….” even though the clinical standard of care was not to perform the test:

http://www.epmonthly.com/whitecoat/trial-of-a-whitecoat/

“Standard of care” is based on where the clinical observations take you – not what other doctors may or may not do and yet doctors are being held accountable for that ever changing, 20/20 hindsight of some hired gun who quit practice years ago.

11 throckmorton 04.22.10 at 8:38 pm

For those of you who like to think that defensive medicine does not exist, I encourage you to volunteer one night in an Emergency Department and meet the wonderful people who come in from midnight to 6 am. There you will have the wonderful opportunity to see who profits from the tests that are ordered. You will also get to see how your tax dollars are spent. In other words get a view from the trenches.

At our medical center, the ED is the biggest cost liability of all the units for the simple reason that there is little is any reimbursement for most of the scans and tests that it generates. The long and short of it, the tests are done defensively because evidence based protocols do not save you in court. The medical center has to eat the cost of these tests and hope that it can make some in other units to come out even. So, you have to get more from the people who actually pay their bills to cover the tests for all those that dont.

Last night we had the classic patient who was smoking crack who came in with shortness of breath and chest pain. Of course he does not have insurance. He has an Iphone with data package though. Anyway, he gets airway endoscopy, ct pulmonary and cardiac angiogram. Since he was confused he got a head CT.

All tests were negative. He was having coranry spasm from the crack. Reimbursement for the doc and hospital is zero. Of note, the ED doc just had a case dismissed after 2 years of legal battles regarding a case in which a crack adict came in with a CVA (coke stroke) who then sued because he was found to have a right coronary stenosis. The lawsuit claimed that the ED physician was negligent becuase he did not do a more extensive cardiac evaluation at the time.

This is the reality of medicine at the present time. If you dont believe it, go volunteer in the ED.

12 Defense marketing obviously works 04.23.10 at 11:34 am

Typical insurace babble.

Insurance companies hire individuals called “adjusters.” An “adjuster” evaluates a claim and makes a decision on the claim. Medical Malpractice Insurance adjusters evaluate the medical records of the claimant, the statement from their insured (the doctor), the statement of the claimant and consult a ‘hired gun’ doctor who evaluates whether insured violated the standard of care. Adjusters also discuss claims with “in house” counsel, ie defense attorneys, as to the liklihood of success at trial. After evaluating a claim, the adjuster can take three actions 1. make an offer to settle – which they never do, 2. deny the claim or 3. neither make an offer or deny the claim. Most medical malpractice insurance companies select #3 in order to force a lawsuit.

Interestingly, ARD, above, wants the insurance company to “proceed through discovery and attend an arbitration or mediation.” Why? The insurance company possesses all the material, possesses all the expertise to determine whether a violation occurred! Why then does the insurance company force an arbitration or mediation – after forcing the plaintiff to file a lawsuit? Because medical malpractice insurance companies make their living attacking claimants in order to make more money.

Insurance companies employ slick logical slogans – like “when other doctors would order a test, that becomes the standard of care”. Come again? The survey asks “other than purely clinical reasons”. If other doctors are ordering the test for ‘clinical reasons’, then that becomes the standard of care. If the test adds something ‘other than for a clinical reason’, you can bet the doctor is gaming the system – greedily grabbing cash, just like their insurance companies.

Interestingly, Texas, Indiana and California provide a great deal of evidence that doctors and insurance companies act primarily for money. Texas – home of the most strict tort reform measures – possesses the HIGHEST cost of medicine in the country. IN THE COUNTRY!!! Neither resopnse above addressed my question, name one non-research study funded test that a medical provider does NOT bill the client for? Neither answers, but both provided slick insurance company doubletalk.

13 gitarcarver 04.23.10 at 1:23 pm

After evaluating a claim, the adjuster can take three actions 1. make an offer to settle – which they never do, 2. deny the claim or 3. neither make an offer or deny the claim. Most medical malpractice insurance companies select #3 in order to force a lawsuit.

Clearly this is contradicted by real world experience.

In fact, over 70% of all med-mal claims are settled before a trial. Of the remainder that go to trial, the physician is found not negligent 90% of the time.

It seems that you believe that a mere claim that a doctor was negligent should result in an award. Heaven forbid that we actually allow people to defend their actions and reputations.

If the test adds something ‘other than for a clinical reason’, you can bet the doctor is gaming the system – greedily grabbing cash, just like their insurance companies.

Or the doctor is practicing defensive medicine, which is the subject of this post.

Texas – home of the most strict tort reform measures – possesses the HIGHEST cost of medicine in the country. IN THE COUNTRY!!!

Factually false: http://www.peerpapers.com/uncommon-sense/wp-content/uploads/2009/07/HealthcareMap_Final5.png

Of course, where you might find that the state with the second highest population in the country spends the second highest amount for health care to be shocking, most people would believe that would be right in line.

Neither resopnse above addressed my question, name one non-research study funded test that a medical provider does NOT bill the client for?

Frankly, I am not sure that a “non-research study” exists. How can you have a “study” without “research?” That alone would make your question impossible to answer.

However, you have retreated from your original point which was that doctors make money off of tests. They do not. Secondly, if you think that more tests mean more money for the insurance companies, that would be false as well. Assume for a moment that a person pays $100 a month for health insurance. (The figure is just for illustration purposes and is not real.) Also assume that each test costs $25. (Once again, just for illustration.)

You are trying to get us to believe that the insurance companies make more money by having doctors order 6 tests for a total of $150 than 1 test at $25. I fail to see how a company losing $50 is a benefit to that company or its shareholders.

Neither answers, but both provided slick insurance company doubletalk.

I believe that the casual reader will disagree with your assessment of this discussion.

14 Defense marketing obviously works 04.23.10 at 3:00 pm

In fact, over 70% of all med-mal claims are settled before a trial.

Agreed. However, again you fail to distinguish between “trial” and “filing a lawsuit”. When you file a lawsuit, you do not automatically have a trial; instead, the procedure allows for a lengthy process of discovery. This lengthy process allows insurance companies to delay payment or settlement until the day of trial nears or on the day of trial.

Or the doctor is practicing defensive medicine, which is the subject of this post

Complete myth. Medical schools offer no courses on “defensive medicine.” Hospitals offer no training programs on “defensive medicine.” Insurance companies offer no lower premiums for medical malpractice for those doctors practicing “defensive medicine” versus those doctors not practicing “defensive medicine.” “Defensive medicine” is an insurance term used to defend failure to diagnose cases.

Doctors order more tests for two reasons: 1. more information and 2. more money. A very logical relationship exists with doctors ordering tests and increased pay. If a doctor works for a hospital and wants a raise, then the hospital must spend more and in turn charge more. Those doctors possess a perverse incentive: want a greater salary, then obtain more revenue. While I agree that some other entities bill patients for the services, many doctors OWN those other entities. See Texas:

http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande

As far as the point regarding a “non-research study test”, a study often pays for tests and does not bill the particular patient. Thus, a study may often pay for tests to learn information for non-clinical reasons.

I believe that the casual reader will disagree with your assessment of this discussion.

I challenge you to evaulate a different statistic: medical malpractice company profits. Since you argue that insurance companies pay $150 for every $100 they take in premiums, logic dictates they would lose money. Yet, each and every medical malpractice insurance company that is forced to present their financial records to the public shows two items: 1. huge profits and 2. dividends to their physicians.

Yet, all this talk of money and tort reform has no effect on the rate of medical error in this country. Since the rate of error remains the same and 70 million baby boomers are poised to enter the stage of their lives requiring the most medical care, the baby boomers will experience a very bloody experience. Insurance companies have taken great strides – like the writer above – to paint this rosey image, but the boomers love to asset their rights ( ironically, they spent the majority of their professional lives eroding individual rights).

15 gitarcarver 04.23.10 at 4:24 pm

This lengthy process allows insurance companies to delay payment or settlement until the day of trial nears or on the day of trial.

It also allows the parties involved to assess the complaint to see if there is merit to the complaint. Once again, you seem to think that just because someone claims malpractice that the insurance company and the doctor are negligent.

Complete myth.

Obviously the conclusions of this study and others have escaped you.

Doctors order more tests for two reasons: 1. more information and 2. more money.

We’ve been down this path before. Your repeated assertion that is against this and other surveys doesn’t sway me.

As far as the point regarding a “non-research study test”, a study often pays for tests and does not bill the particular patient.

Ah. I see what you are saying. So you believe that a doctor in private practice orders a test and makes money from it? Once again, your assertion is contrary to real world experience.

Yet, each and every medical malpractice insurance company that is forced to present their financial records to the public shows two items: 1. huge profits and 2. dividends to their physicians.

I am not sure of your point here. Yes, med mal insurance companies make a profit. That is what companies are in business for. The next time you go to work and don’t want a paycheck, you can criticize others who want to get paid. Secondly, if a doctor or anyone wants to own stock in a company, that is their choice. Your premise is that an insurance company makes money by promoting increased costs. Good luck selling that to any economist.

Yet, all this talk of money and tort reform has no effect on the rate of medical error in this country.

This is an interesting conclusion as you seem to admit the defensive medicine as practiced by many doctors has no effect on health care. Therefore, the only reason for the defensive medicine and associated costs are to protect the doctor. It has nothing to do with clinical care.

Which is, of course, the conclusion of the aforementioned surveys and others before it.

16 antiredistributionist 04.23.10 at 10:34 pm

gitarcarver – Your patience is extraordinary. You put your finger on it – dmow thinks that an insurer should simply accept and pay based on the accusation. The notion that an insurance company has access to complete information about a claim and the claimant before suit is filed and discovery conducted is nonsense. In addition, discovery is not limited to the issue of whether the insured breached the standard of care, but also must be done on issues like causation (including medical histories with other providers, the patient’s co-morbidities, etc.), potential allocaton of liability to third parties and/or the plaintiff, and damages, which is usually a contentious and murky subject.

17 William Nuesslein 04.24.10 at 10:10 am

Requiring a physician to sign an affidavit stating the treating physician (defendant) violated the standard of care is flawed by having a large number of physicians that will include those seeking a quick buck and those that are nuts. Each judge, or court house should have retainer physicians to qualify claims involving standard of care.

Any expert should have to be court approved prior to litigation so that a Dr. Danial Brown, a hired gun for repressed memories, is never allowed to vouce for a thoroughly discredited theory.

18 Fairness 04.24.10 at 10:36 am

A hired gun is never allowed to vouch for a thoroughly discredited theory?

Ok sounds great. Only, this applies to both sides, right? If the insurance company – as per their norm – files some bogus defense, then the Court should throw their defense out, right? We all know the cadre of physicians medical malpractice insurance companies keep on retainer – 300k per year to rubberstamp the insurance company “theory” of how the ‘doctor’ never violated the standard of care when removing the wrong leg….

19 Defense marketing obviously works 04.24.10 at 3:05 pm

“The notion that an insurance company has access to complete information about a claim and the claimant before suit is filed and discovery conducted is nonsense.”

Wait, an insurance company has access to its insured and once the claimant submits the medical bills, records and statement – what else does an insurance company require to adjust a claim and make a fair offer? Insurance companies possess no difficulty charging high rates and cashing checks, why then does evaluating a claim take so long? Oh wait, are you arguing the statute of limitations should increase from 2 years so that insurance companies have time to make a decision rather than force a plaintiff to file or recover zero?

“In addition, discovery is not limited to the issue of whether the insured breached the standard of care, but also must be done on issues like causation (including medical histories with other providers, the patient’s co-morbidities, etc.), potential allocaton of liability to third parties and/or the plaintiff, and damages, which is usually a contentious and murky subject.”

OH! NOW I SEE!! Insurance companies want to assert all their rights. So in the instance where a surgeon fails to identify blood type prior to surgery, and during surgery the doctor orders a transfusion but the nurse administers, after the patient dies, the family of the patient should be forced to file a lawsuit to recover, under your logic. According to your logic, the insurance company should not be denied the opportunity to accuse others and attack the plaintiff, rather than make a fair offer prior to the statute of limitations. So you argue insurance companies should be able to maximize their rights and force litigation, but if a plaintiff files a lawsuit, then they rely too heavy on litigation and are only after money.

Slick, slick, slick insurance company double talk. I think any reader knows you are more interested in padding insurance profits than a fair resolution to an unfortunate event which caused a catastrophic injury – an injury nobody ‘wanted’ but that fact does not place the injured back into the position they were in without the injury.

20 gitarcarver 04.24.10 at 4:46 pm

Wait, an insurance company has access to its insured and once the claimant submits the medical bills, records and statement – what else does an insurance company require to adjust a claim and make a fair offer?

You keep changing your argument from a claim on an insurance policy to a mal-practice claim. It is difficult to follow your arguments because of that.

Here you are claiming that an insurance company has all the necessary paperwork to pay for a claim. That is not true far more times than you would imagine. Often times insurance companies wait for the hospital, doctor and even the patient to send in the necessary paperwork as specified in the insurance policy. Once again, you seem to be taking the approach that any claim that a person files should be paid. If that is the case, please post your address so I can send you bills and demand payment even though I have never performed any work for you.

Insurance companies want to assert all their rights.

So you believe that companies do should not assert their rights? Is that really what you are saying?

So in the instance where a surgeon fails to identify blood type prior to surgery, and during surgery the doctor orders a transfusion but the nurse administers, after the patient dies, the family of the patient should be forced to file a lawsuit to recover, under your logic.

Not only yes, but aitch ee double hockey sticks yes. In your example, what has the surgeon done wrong? He was relying on information that was given to him by someone else. You really don’t think that the doctor does the physical test for blood types, do you? So if a blood type comes back A Pos and the actual blood type is B Neg, what has the surgeon done wrong here?

According to your logic, the insurance company should not be denied the opportunity to accuse others and attack the plaintiff, rather than make a fair offer prior to the statute of limitations.

No, the insurance company should have the right to defend themselves. There have been cases listed on this blog where the patient has not told the doctor or hospital of an allergic reaction to a medicine, and yet the family sues the doctor for the patient failing to disclose vital, pertinent information.

In other words, if you are allergic to penicillin, and when the doctor asks if you are, you reply “no,” how is it the fault of the doctor when you have a reaction to the drug?

Slick, slick, slick insurance company double talk.

You keep repeating this rather than address any of the substantial issues.

I think any reader knows you are more interested in padding insurance profits than a fair resolution to an unfortunate event which caused a catastrophic injury

“Fair” has many definitions to many people. I don’t think anyone is against people, hospitals, insurance companies, etc being held accountable for their errors. However, what is not fair is your belief that any mistake is always that of a doctor. What is not fair is your instance that any claim on a policy or claim of negligence should be paid off without any review.

I would suspect that you don’t handle your affairs that way, so the “fair” thing to do is not demand that others do what you will not.

21 antiredistributionist 04.27.10 at 2:50 pm

gitarcarver – Thanks for (again) demonstrating more patience and logic than dmow deserves. Something tells me dmow has some history that biases his opinions.

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