11 Comments

Does anyone have the other side of that statistic? What percentage of those “defensive” imaging orders resulting in discovery of something that would have been missed otherwise? Or is it only “defensive” if nothing of significance is found?

If by “defensive medicine” you mean “not medically necessary”, then these unnecessary procedures were done for the sole benefit of the physician and not the patient. Has anyone investigated the doctors for fraudulent billing or Medicare fraud (assuming some were Medicare patients)?

If lawyers went around saying we incurred fees or expenses for clients only to cover ourselves, we would be in a load of trouble. Yet doctors are standing up in public forums and saying, “Yeah, I order testing for patients solely to protect myself from malpractice” and I feel like I’m the only one blinking an eye.

Brett raises a good point I have never thought of before about Medicare fraud.

It would be easier to determine what is and is not defensive medical testing if evidence based guidelines could be used and if they were held up in court. Instead, every trauma patient gets a ctls ct because someone, somewhere in court will argue that you should have got one. It is far easier to argue why you got a test than it is to argue why you did not. By the way. We er dogs don’t get paid any different if we order the tests or not. For that matter, most of our patients don’t pay anyway.

Brett and Ron
Imagine a world in which Lawyers could have a claim filed against them by their clients if the case didn’t go the client’s way, never mind if the client had a valid / winnable case or not. Imagine that lawyers often times can’t even pick their clients – they get what comes through the door and are forbidden from declining to help them. Imagine that sometimes these same clients you don’t get to choose do stuff that actively sabotages your efforts to win their case.

Imagine if these claims for failure to win the case (this case of the client you didn’t get to choose, and who’s own behavior hindered winning the case), and how the merit of their claim that you failed to win were determined, was set not by lawyers, but by other professionals whose training and natural inclinations have no relation to the law. Imagine if these non-lawyer professionals could change the rules at will, only in consultation with themselves, and not with lawyers and if these rules of evaluation had no fixed basis. Imagine the confusion the lawyer would have if they had to answer to the rules of these other law ignorant professionals, not the rules of law they understand.

Now, in this kind of world, do you think that lawyers might be a bit more defensive in how they handle their clients cases? Do you think lawyers would seek, say, depositions or discoveries of things they knew didn’t really pertain to their clients cases, but that they might think it prudent so they could cover their butts against Monday morning quarterbacking by these ignorant of the law professionals that question how they handled the case?

Do you think lawyers would decline to file needless and pointless petitions, affidavits, motions, counter motions, etc (all the while racking up HUGE bills, and having to enter confusing as heck billing codes for each piece of paper) if after the fact, they could be dinged for MILLIONS if one of these non lawyer professionals convinced 12 hand picked idiots that the failure to file some random motion to quash something the other guy is doing is what made your client have a bad outcome to their case?

Yeah….fraud? I think not. Your arguments make it a Kobayashi Maru scenario for doctors. Cover your butt, it’s fraud. Don’t cover your butt, it’s malpractice. Frying pan. Fire. Hell of a choice.

So, to your eyebrow raising: Shut up. You speak your concerns of this so called fraud like too many a lawyer would – completely divorced from physical reality.

What No Name Guy said!

As a diagnostic rad., I would agree with the stat about 1/3 of exams. It gets higher for emergency cases. To Mark– defensive medicine is when you PROSPECTIVELY know that a test you’re about to order on someone has an extremely low or no chance of discovering something significantly different than what you are thinking. This is opposite to what docs are taught–ie order a test to comfirm a suspicion. A perfect example I see every week is a child brought into the ED with GI symptoms that scream stomach flu–but a CT scan is ordered to “rule out appendicitis”–this at big cost in terms of money, time, human resources and of course significant radiation exposure to a child. The docs are requesting this to cover their a**, no other reason. And we can’t scan every kid with belly pain.

I have a competition with my doctor. He’s going to try to keep me alive forever. I’m going to frustrate him.

I am determined to win. If he likes, I will sign a statement to that effect.

Bob

@No Name –

“Loser Pays” would have the same effect. Moreover, if the indigent client could not pay the court costs, then the Attorney would be on the hook.

[…] Walter Olson points us to a study presented at the annual scientific meeting of the American Academy of Orthopaedic Surgeons (AAOS) that finds that more than a third of the costs all imaging tests ordered by orthopaedic surgeons are conducted for defensive purposes; i.e., to protect the surgeons from the possibility of a future malpractice lawsuit. […]

Adding to No Name’s response:

Now, say that you’ve been named in a case. Just named, not lost the case, or even settled, just named. You MUST divulge that to every future employer you will ever have. You MUST share that with every potential malpractice insurer that will every consider your coverage. Just being named becomes an ugly mark that will mar your ability for employment forever. That information is also available, in many states, to anyone who wants it. Keep in mind that 50% of all cases are settled even when there is NO FAULT by the practitioner, simply because it is less expensive to write the check than to pay the lawyer to see the case through to trial.

Advocates for health care reform deny that tort reform is necessary to decrease the cost of health care delivery. The tests mentioned above are a relatively small portion of the expense of defensive medicine – please add the cost of blood work, biopsies, referrals, scopes, invasive procedures, and medications. Factor in lost productivity due to time patients spend away from work to do all of this, and I would suggest that at LEAST 1/3rd of what I accomplish is to keep everyone out of court.

And, as for Medicare/Medicaid fraud? I can justify every single expense as medically necessary, and just like you, I can hire a specialist to take the stand and verify back me.