14 Comments

This sound like Hank Steinbrenner complaining there is no salary cap.

I love how lawyers are the bad guys for “forcing” doctor to engage in selfish actions. Some doctors just won’t take the million to one risk, huh? So we need to set up a system to protect you from your selfishness. How about this: follow the standard of care. You are willing to subject your patients to risks and tests that are not necessary to prevent a million to one risk of an INSURED event? And the lawyers are the bad guys?

”Sometimes it is difficult for me to understand if I am really treating myself or the patient.” Let me tell you, if you are a doctor asking yourself this question, you have to ask yourself if you should be treating patients.

Fortunately, and ironically given the messager, most doctors decent people and fine health care providers who biggest concern is not lawsuits but their patients. The data supports this. The Congressional Budget Office specifically concluded that any savings from reducing defensive medicine would be small at best.

The reason for this is most doctors are a lot more concerned about someone dying in the ER because of a test they did not perform than worrying about a lousy malpractice case. Why? Because they are decent human beings, just like malpractice lawyers, plumbers, and Indian chiefs.

This is like John McCain saying the problem with the budget is this pork. It has a certain appeal: pork is bad just as defensive medicine is bad. But we need to get realistic about the scope of the problem. Go to Texas where malpractice cases are almost dead from tort reform. Yet health care is not better, doctors are not fleeing to Texas.

Defensive medicine is a great battle cry politically because it diverts the real issue: doctors want to pay less in malpractice premiums. I’m cool with this desire. But given that this is what we are realy talking about, can we save the “chalet in the Swiss Alps” talk?

Mr. Miller

I don’t know if the lawyers are the “bad” guys, but you must understanding this from a physician’s viewpoint. Just getting named as a defendant in a suit, no matter how peripheral you are involved, no matter how meritless the suit is, you lose. And I can tell you that following the standard of care is certainly no guarantee that you will not be sued, settle, or lose in court. The standard of care is changing, in large part to what happens in the courtroom rather than in the laboratory.

The fact that ED doctors order too many imaging tests, and I can you from experience they often do, is a reality in our society, reguardless of cause. I can understand their thought process, even if flawed, is a reality today. And it’s not going to stop anytime soon until we run out of money for healthcare. You say that you question whether a doctor should see patients if he/she is “treating the patient or him/herself” Guess what? Most physicians I know ask this question of themselves.

The real issue of defensive medicine is not to pay less insurance premiums. The real issue is being able to practice medicine as we learned it years ago in medical school, as an art, not as a CT/MRI/ultrasound ordering robot that many physicians have become.

The Congressional Budget Office specifically concluded that any savings from reducing defensive medicine would be small at best.

I have read the studies that the CBO produced and this generalization is a little off. The CBO has said that the methodology and data make determining the savings from defensive medicine difficult to determine, but they believe it to be small.

For example, what defines “defensive medicine” and the costs associated with it? If enough doctors are ordering more tests in the name of defensive medicine, that requires more labs, more equipment, and more personnel. Are those increased costs included in teh CBO’s calculations? Or are they simply relaying the costs of the test? Doctors are documenting more in patient’s charts and that too would be an increase in the costs, but yet it is difficult if not impossible to quantify how much time or how much time in transcription it takes.

Much of the problem has to do with determining whether a physician is practicing “defensive medicine,” or adding tests and fees to pad their bills in order to pay for rising malpractice insurance.

The CBO doesn’t give figures or their methodology for coming to the conclusion they did, but other studies have. Some studies have indicated that almost 80% of doctors do extra tests because of “defensive medicine.” Over 90% of doctors and nurses state they know other doctors who routinely order more tests in the name of “defensive medicine.”

These studies come to the conclusion that “defensive medicine” increase costs by 8 – 15 %. In that the CBO never defines what “small” is, it may be that they believe that 8% is “small.” I am not sure I would agree with that.

There is something wrong when a large percentage of doctors admit to ordering additional tests they believe and the CBO says the added costs are “small.” It gets back to who are you going to believe? The government or the people doing the work?

For now, I am willing to go with the men and women on the front lines and not a “bean counter” in an office.

I appreciate both comments made above. My response:

1) I fully understand that following the standard of care is not necessarily a get out of jail free of being named as a defendant because people are going to argue over what is the standard of care. In Maryland at least, you need a doctor who is not a professional witness (less than 20% of his income) to stand up and say there is a breach of the standard of care. Does not mean that he/she is right but we are just not going to have a system ever where people are not civilly accused of wrongdoing in spite of the fact that they were not negligent. It sucks but this is even true in criminal cases, albeit to a lesser extent.

2. We say “defensive medicine” but we should really look at the issue of litigation driven defensive medicine. Because I am utterly convined the defensive medicine comes more from the fear of harming another human being than the malpractice lawsuit that follows. Almost every doctor would prefer a lawsuit in a case where they were not responsible than NOT getting sued in a case where they seriously harmed someone.

3. Also some – repeat some – defensive medicine is probably good. Doctors who are more swayed by litigation concerns than what is best for their patients are probably the same ones that would do less than they should do if there was not the possibility of being held responsible.

4. I appreciate the let’s listen to the boots on the ground instead of the govt comment. Sarah Palin kept saying that about the polls. But the problem was the boots on her ground were all biased. Health care providers have a bias to claim defensive medicine is a big problem for the reasons set forth in my original comment. (Note: I realize I too am biased on this issue.) But a objective study is probably better than listening to biased boots on the ground.

We need to practice a “Medical Standard of Care” that is based on evidence based research. Instead we have a “Standard of medical care legally based”. The difference is the cases mentioned. Evidence based research can say that your exam and physical findings are correct with a 99.9% sensitivity and specificity, but the courts have shown that this is not enough, therefore we gets scans and all other kinds of tests. This leads to wasted heathcare dollars.

Unfortunately, we are training our medical students to order tests like crazy and not to have them be fiscally responsible with healthcare resources. If we allow evidence based medicine to be the “Standard” we can be fically responsible and use the healthcare dollars for more care rather then “litigation care” and actually reform medicine. The problem of course is the patient with the headache who come to the er and has classic migraine and then sues years later for the undiagnosed meningioma that is and always has been asymptomatic.

Mr. Miller,

Allow me to offer some counterpoints to your response. I’ll keep the same numbering system you initiated.

2. As I said originally, the CBO never issued its methodology for gathering data. This includes what they define as “defensive medicine.” The common definition used in other studies seems to be “practices that give a defense in the case of litigation, or practices that help pay for increased costs from litigation.” (increased maplractice insurance, etc.) While your point that “almost every doctor would prefer a lawsuit in a case where they were not responsible than NOT getting sued in a case where they seriously harmed someone” is valid, the fact remains that many doctors are practicing “defensive medicine” to either try to avoid being sued, or to help pay for insurance costs driven by others who HAVE been sued. Either way, there is no doubt that the practice of “defensive medicine” is out there and prevelant.

3. I believe the exact opposite. The doctors who practice defensive medicine are the ones more likely to try and stay in the profession and not get litigated out of it. While I appreciate your qualifer of “some,” the fact remains that “some” implies the “majority” of the doctors are practicing defensive medicine for the reasons stated which have nothing to do with patient care. “Defensive medicine” is practiced because of the “bottom line.”

4. I think you missed the point. The CBO study doesn’t give methodology, so it is impossible to figure out where they were getting their data and therefore their conclusions. Other studies that offered methodolgy questioned doctors and nurses – the “boots on the ground” – and came to radically different conclusions than the CBO study. Which study is more believeable? You mileage may vary, but I am going to take the one where the methodology is given and the people questioned are directly involved rather than a unknown methodology based on unknown inputs.

Since there appears to be so many knowledgeable people posting on this, let me ask a question. I’m in my early 40’s, about 6′-2″ and on the heavy side. Two weeks ago I cut my right leg and because it was a Saturday I went to the local Emergency Room for stitches. Did I really need an EKG and a sonogram on both legs? That’s what I got. Is this defensive medicine or not? By the way if I didn’t get both tests they were not going to stitch my leg.

Thanks for the link, Walter.

I have to dispute several of issues that Ron raised.
In your first comment, how is it that being unwilling to risk your life savings and your home to miss some bad outcome in a patient you’ve never seen before translates into “selfishness” on a physician’s part? I’m not sure how “selfishness” even comes into the discussion … taking risk avoidance behaviors? Gee, next thing you know seat belts and nicotine patches will be on the hit list.
Since I am just a dumb doctor, enlighten me, Ron. Take the example that Walter quoted in the first paragraph of my post above. What does your coveted “standard of care” require be done in that patient? What actions should a physician take to make sure that the patient is adequately evaluated to the point that you and your brethren are satisfied that “enough was done” even in the event of a bad outcome? Then put your house and your 401k up as a collateral just in case I can find some “expert” to testify otherwise and convince a jury that you were really wrong. Come play in my world for a little while, not your retrospective Monday morning quarterbacking settle-for-the-policy-limits-or-else world. Go on. Show me what to do prospectively. Tell me what the standard of care requires. Until you do that, you are blowing smoke from your rectum and every person that reads this blog will know it.
You know damn well that there are a cadre of plaintiff experts – even I can name the usual suspects in emergency medicine – that will testify that the standard of care requires anything that the plaintiff attorney pays them to say. Forget that seventeen other physicians say the standard was followed. One expert to the contrary and it’s “game on.” The whole concept of a “standard of care” is a joke. You’re perpetuating that joke.
Regarding comment #4, you’re right, most doctors are good people – just like the members of any other profession, including law. There are a few scumbags that milk the system – just like any other profession, including law. That has nothing to do with defensive medicine. You’re wrong about the reason for defensive medicine. I live the life and talk to doctors about it. You don’t.
You give the example of Texas and tort reform. Doctors not fleeing there? Read the newspapers a little. Since passage of Proposition 12, there have been so many extra applications for licenses in Texas that the board is having trouble keeping up with them. There was a 30% increase in applications for licenses in 2007 alone. The numbers of neurosurgeons, orthopedic surgeons, and obstetricians have all increased significantly. Malpractice premiums have dropped for 5 consecutive years and are now 68% of what they were in 2003. You have some statistics to the contrary?
Don’t even try to compare civil med mal cases with a “tipping of the scales” standard to criminal cases with a “beyond a reasonable doubt” standard. Completely different birds. When you use the comparison with people that know better, they can realize that this argument is disingenuous. When you use it with people that don’t know better and don’t disclose the differences, you’re being misleading.
“Some” defensive medicine is good? Where do you draw the line? Oh, I forgot, you’re using a retrospectoscope. The “good” defensive medicine is something that retrospectively shows an abnormality. The “bad” defensive medicine is a test that is ordered and shows “nothing.” So tell the readers of this blog, Ron: Where should everyone draw the line between “good” and “bad” defensive medicine? What tests should we stop ordering? Prospective opinion, please.
Your response in comment 4 paragraph 3 shows that don’t understand the concept between being held responsible for negligence and being held responsible for a bad outcome in the absence of negligence. Big difference. Doctors are trying to avoid the latter rather than the former. I know this — not on a hunch — but because I have discussed the issue with a lot of doctors.
Am I biased the “other way”? Maybe a little. I’m trying to look out for my patients, though.
The perfect storm is almost here. Medical care in this country is going to become largely unavailable. Defensive medicine plays a big part in that equation and fear of frivolous lawsuits drives a large portion of that defensive medicine.

Jim, welcome to the world that the attorneys have created. Without knowing all the facts of your case, my guesses are the following:
If you’re heavy, your legs were probably swollen. Did you need the Doppler? Probably not. But you got it because then the doctors could prove to the lawyers and the jury that they didn’t miss a DVT if you later developed a pulmonary embolism and died. Did you need the EKG? Depends. If you had a fast heart rate, that way the doctors could prove to the lawyers and jury that you were not in an arrhythmia if you later suffered a bad outcome.
Defensive medicine sucks, doesn’t it?

Your comment in rambling as all of mine are so let me try to address the topic you are thowing out.

1. Selfishness – you order tests a patient does not need that can be harmful them to protect yourself, this is selfish and wrong.

2. I’d like to see a list of doctors who lost their 401K and their house. Do you know one? Just one? They are going to be dwarfed by the numbr of doctors who died in car accidnts this month.

3. We need to go beyond the conversation of “you are doctor, you are there, so you know.” It leaves out meaningful contributions for the rest of us. Since doctors don’t make laws, we are going to included the rest of into your policy arguments.

4. I don’t get the seat belts and nictoine thing.

5. You demand that I tell you what the standard of care requires. I don’t know. It is meaningless question in the absence of fact – it is not abstract question.

6. I’ll put some atricle for you. Malpractice premiums are down but not much else is happening as they hoped in Texas. But yes, doctors are making money if that is the panacea for all.

7. I find troubling suggesions that I’m blowing smoke. Trust me, I’m making rational argument with which people smarter that you and me bother agree and disagee. I don’t think anything you are saying is silly. I think it is wrong. But nothing I’m saying is ridiculous. I’m glad for the debate but I’m not sure the whole “talking to me like I’m a child that does not understand” think is the best way for constructive dialogue.

Thanks,that’s kind of what I thought Whitecoat. What I thought ironic was that they told me not to worry about the costs of the test, they were covered by my insurance. I understand their concerns, even though I think it is a load of BS. I used to have to do something similiar when I worked on small planes. It didn’t matter if I were changing the oil or replacing the engine, I did a complete inspection everytime I touched a plane. If I just changed the oil and two days later the wing fell off I was sure that I would be talking to a lawyer soon. If my license number was in that log book I was in the lawsuit.

In the early seventies my son was shoved by a bully and hit his head against a wall. There was some bleeding, and the school sent him off to the ER. A little clean water and a bandage was all that was required; some antibiotic perhaps. Yet several x-rays were taken. Defensive medicine in my son’s case was long ago and expensive. (My son was OK!)

What drives the defensive/excessive medicine? Second guessing, especially when there is an adverse outcome, must have some effect. The lack of cost/benefit calculation. I certainly would have declined the x-rays in the case of the minor injury of my son. There was nothing to justify their cost. The humane tendency to show that one is an excellent doctor.

Since claims of malpractice are mostly wrong, the plaintiff bar does not help matters. “Perhaps that extra test saved a life” is the claim, but the lawyer who makes the claim can base it only on conjecture, as there is almost never a suit when treatment is effective.

Selfishness has nothing to do with it Ron. We live in a litigation driven society. How are ladder manufacturers selfish because they must paste 10 warning labels on their product? Why are small products like toys put in packages that cost more than the product itself, packaged so tightly that you need an ax and a crowbar to open, hoping you won’t slice a finger? It’s CYA. Does the 87 year old need that $2000 MRI for chronic knee pain, sometimes getting 2 scans within a year, when a $50 plain xray will likely disclose the cause of the pain? Do you think this happens in Europe? This is why our health care system is going to hell in a hand basket.

Docs resent the current med mal system because of the randomness of it. It’s a crapshoot. There are cases that are truly malpractice but will not be taken up because of their low potential payout. And there are cases of questionable merit that will be pursued with a vengeance because of the large potential payout. This is what “fighting for the little guy” is all about? And of course emotion is brought into play, sometimes ignoring the facts of the case. As you know, and as WhiteCoat has pointed out, you can ALWAYS find an expert that will say anything. For Docs, all it takes is ONE case, just one, that could ruin a career.

1, How is it selfish, Ron? The premise is that there is some patient, with some lawyer, and some “expert” that will say the doctor didn’t do enough. By ordering more tests, it prevents that line of “reasoning” being used. More tests also pay for the higher malpractice rates. Are you really trying to say that if the costs in your job go up that you wouldn’t raise income? Are you trying to say that if your firm was in danger of being sued you wouldn’t do everything you can to protect against it?

Sorry, but I don’t under stand your rational for saying it is “selfish.”

2. This was a strawman argument as that is not what “WhiteCoat” said. Assume for a moment that you had to put up your retirement and house as collateral in response to being sued while knowing you did nothing wrong. Are you going to sleep well at night? Are you going to have added stress? Is knowing that your financial status is on the chopping block going to make your performance in the workplace better or worse?

3. It is not that people should be excluded from the conversation, but rather that the people that are on the front lines of medicine have more direct knowledge of the situation.

5. You make WhiteCoat’s point for him. How can anyone be held to a standard that doesn’t exist, or one that constantly shifts depending on an “expert” or a lawyer? How would you feel if you were pulled over for a speeding ticket on a road where the speed limit changed daily and there were no signs saying so? One day the limit is 30, the next 40, then 25 and you don’t know. Is it right that you are held to “standard du jour?”

6. WhiteCoat’s assertion that there has been an influx of doctors into Texas is accurate. According to the New York Times, the licensing board has also received funding for more investigators and lawyers, so oversight of doctors may be increasing as well I don’t see how that you dismiss that with “not much else is happening.”

OK, Ron, using your numbering system …

1. You still haven’t given me a prospective way of determining what “tests a patient does not need.” You are making a circuitous argument because the only way that an attorney judges that at test was “needed” is RETROSPECTIVELY – after an injury has occurred.

2. List of doctors? I don’t keep such a list, but here is “one example” that you clamor for (and it was a bullshit 20-20 hindsight case, also):
http://www.ama-assn.org/amednews/site/free/prca0116.htm

3. I have no idea whatsoever what point you are trying to make with this statement

4. You accuse doctors of “selfishness” for taking risk avoidance behaviors. Everyone takes risk avoidance behaviors by wearing seat belts and using nicotine patches. Are those “selfish” actions also?

5. This really burns me.
Attorney: “We need to set up a system to protect you from your selfishness. How about this: follow the standard of care.”
WhiteCoat: OK, I’d be happy to follow the standard of care. What is it?
Attorney: “I DON’T KNOW what the standard of care requires.” Besides, it is a “meaningless question.” Now pay my client $5 million so I can get my 40% cut, will you?
You use the same logic in your legal briefs?

6. Still waiting for that plethora of articles.

7. If you don’t like the suggestions that you’re “blowing smoke,” then back up your assertions with statements of fact and prove me wrong. So far you haven’t done so.