WhiteCoat

More on Defensive Medicine

It seems that my post on defensive medicine in the emergency department struck a raw nerve with several people. Many thanks to Walter at Overlawyered.com for his link and I also appreciate “obvioustroll” linking the post on Reddit.com. Got a lot of interest from both sites and think that it meaningfully adds to the discussion.

I answered a couple of questions on other sites, but thought it would be beneficial to flesh out some of the counterarguments used by those who either believe that “defensive medicine” is a good thing or that “defensive medicine” doesn’t really exist. I also wanted to expose some common misperceptions and disinformation spread by those who take those positions.

We’ll start with the responses at Overlawyered.com. I left a long response there and you can go read it if you like, but I’ll include a couple of highlights below.

Matt, who is an attorney, was the first one to comment, stating that a standard of “‘probably’ doesn’t cut it — and shouldn’t.” He then proceeds to give several examples of why “probably” shouldn’t “cut it” in his mind.

If you took your car in for soft brakes, and your mechanic told you he didn’t actually check them, but they “probably” wouldn’t fail, you wouldn’t accept it. If you’re having electrical issues at your house, you wouldn’t put up with your electrician saying that he really didn’t check all the possibilities, but your house “probably” wouldn’t burn down. You wouldn’t let your lawyer get away with telling you he hadn’t really looked into all the facts or the law, but you “probably” won’t get in too much trouble for whatever you’re concerned about.

My reply was that his analogies hold no water. I responded:

The implication that, like the mechanic and the “soft brakes,” I “didn’t actually check” the patients is silly. A correct analogy would be “I checked your brakes and there is still a half inch of pad left on the brakes. They’re ‘probably’ good for another 12 months. I can run them through a $2000 machine to give us a better idea of when they’ll fail, if you’d like. Oh, you demand the test or your lawyer will sue me for ‘$7.24 million‘ if the brakes don’t last 12 months? In that case, sure.”

Then I vetted his other examples.

Is it the standard of electrical care for the electrician to rip out all of the wiring in your house “just to make sure” that there won’t be a fire? That’s what you’re implying. It might cost you or your home insurer tens of thousands of dollars, but otherwise, how can you be “sure” that a mouse didn’t eat through the wire right next to some insulation?
Oh, and I love your example about lawyers. Is it the standard of legal care to research each issue at law in each of the fifty states before creating a brief for a client? Perhaps laws in other states don’t have binding authority, but the added persuasive authority *might* be the difference between winning and losing a case. How much legal malpractice are you committing by failing to include other state rulings in writing *your* briefs?
Not so funny when you have to live by your own illogical assertions, is it?

A second commenter named “VMS” then stated

Matt is 100% correct and White Coat has developed “GOMER (get out of my emergency room) syndrome which he should cure before he gets into trouble.

The physician must eliminate everything on the differential diagnosis by perfoming a risk-benefit analysis.

I responded:

VMS creates the novel concept that a physician must “eliminate everything the differential diagnosis” using a risk/benefit analysis. Please provide all of us physicians suffering from GOMER syndrome with a prospective legal and/or medical formula that we should use to escape liability. It’s fine to stand in front of a jury and retrospectively say that if “X” was only done, my client wouldn’t have had an injury. Funny how I never hear any lawyers prospectively saying “do Y and you won’t be sued.”
In the patient with foot pain, there was no bony point tenderness. He had a little red mark. He said that he couldn’t bear weight on his foot, but he walked into the ED. What is the likelihood of a fracture? Pretty much nil. What does an x-ray contribute to the ultimate diagnosis? Nothing but increased costs and the false security that I can convince a jury that nothing was there on the x-ray if the patient does happen to have a bad outcome. Let’s not stop there, though, Let’s assume there is a real risk of a fracture. Does x-ray “rule out” every fracture? Not at all. Probably need a bone scan to do that. Are you now saying that every patient with foot pain who alleges he can’t walk needs a bone scan? Just because we’ve ruled out a bony injury doesn’t mean that a ligamentous injury might not exist – that is on the differential and a ligamentous injury of the foot could cause lifelong pain. Now we really need an x-ray, a bone scan, and an MRI … on every injury, is that right?

I won’t go on to quote everything that I wrote, but the comments section on Overlawyered.com is definitely worth the read if you’re interested in arguments on both sides of the “defensive medicine” topic.

Max Kennerly is another lawyer that posted a response on his blog “Litigation & Trial.” He accused me of being afraid to use the “basic principle of clinical medicine known as differential diagnosis” – which he defines as “a process of elimination by which physicians reach a diagnosis by eliminating the most serious and unlikely diagnoses first before continuing their basic evaluation.”

What Mr. Kennerly is apparently suggesting is that, rather than use medical education and heuristics, physicians “shoot the moon” and order “million dollar workups” on every patient complaint. Forget that a runny nose and cough in a child are highly likely to be a viral upper respiratory infection. According to Mr. Kennerly, physicians have to “eliminat[e] the most serious and unlikely diagnoses first … before continuing their basic evaluation.” Because runny nose and cough could also be signs of serious and unlikely diagnoses like bronchopulmonary dysplasia, pandemic bird flu, and inhaled foreign bodies, Mr. Kennerly is apparently asserting that every child with a runny nose and a cough requires a NICU admission, full isolation precautions, viral cultures for H5N1 influenza virus, a call to the CDC (just to be sure), and bronchoscopy before physicians can breathe a sigh of relief and recommend nasal suction and honey (cold syrup is much too dangerous – just ask all the pediatricians). Did I miss anything in my “differential,” sir?

Mr. Kennerly then takes issue that I would consider discharging a woman with a mild head injury who developed a headache 5 days later and who was also taking coumadin. Bleeding in the brain must be ruled out “even after minor accidents,” according to an article he cited from the NIH. But Mr. Kennerly does not stick to his own script. Many “serious and unlikely diagnoses” can cause a headache. Using Mr. Kennerly’s logic, it is likely that “differential diagnosis” algorithm he proposes would require me to get an MRI and MRA to rule out vascular causes of headache and to perform a lumbar puncture to rule out pseudotumor cerebrii. While he may have some success getting a jury to believe that “his” is the way medicine should be practiced, it just isn’t so.

Unfortunately, those who stand to profit from defensive medicine and perceived lapses in performing it are the ones spreading misconceptions and disinformation. In fact, the “standard of care” does not require that any physician rule out “serious and unlikely diagnoses first.” Nor does the standard of care require that everything on a differential diagnosis list be completely excluded before arriving at a diagnosis. If that were the case, *every* patient with chest pain would require a cardiac catheterization and a pulmonary angiogram, even in the presence of a herpes zoster skin rash, because MIs and pulmonary are on the “differential diagnosis” list of patients with chest pain. The propositions made by some of these people are harming more people than they help.

The standard of care requires only that physicians, and everyone else for that matter, behave reasonably. Not “perfectly.” Not “valiantly.” Only “reasonably.”

What the public needs to realize is that all of this extra testing is not without harm. No one hears about the patients who are harmed from the practice of defensive medicine. For example, “false positive” testing (i.e. nothing is wrong, but the test is read as possibly showing something is wrong) may lead to additional unnecessary testing and even unnecessary surgery. How many women have had unnecessary breast biopsies because a radiologist was practicing “defensive medicine” when reading a mammogram? How many of those unnecessary biopsies have resulted in infections, or reactions to anesthesia, or medical bankruptcy?
One study in the New England Journal of Medicine stated that the radiation from three average CT scans is equivalent to the radiation exposure atomic bomb survivors from Hiroshima and Nagasaki received in the 1940s. The study also noted that there was a “significant increase in the overall risk of cancer” in the atomic bomb survivors who had been exposed to that dose of radiation. How many people will develop cancer from defensive medicine in the future?
The cost of all this unnecessary testing also detracts from the care that we as a country are able to provide to our less fortunate citizens. How many childhood immunizations could have been provided with the money that was defensively spent to prove that the 94 year old patient really wasn’t “unconscious” but was rather just sleeping?

One of the most annoying characteristics of the “anti-defensive medicine league” is that they are quick to criticize what they deem to be poor medical care for failing to practice defensive medicine, but they’re only willing to criticize the care after the fact.

Try to get an attorney to give you a prospective opinion on what to do when working up a medical complaint in the future so you won’t get sued. Better yet, get the attorney to put up $1 million in collateral on those recommendations if the attorney is wrong.

Sound unfair?

That’s how doctors practice medicine every day.

And that’s why this country spends more on medical care than any other country in the world.

76 Responses to “More on Defensive Medicine”

  1. Blossom says:

    One — thank you so much for your contributions to the arguments, my perspective comes from doing medical research & taking over the care & feeding of 2 76yo ladies (1 massive stroke, 1 lifetime of rx abuse).
    Two — reading suggestion = “Overtreated” by Shannon Brownlee
    Three — lawyers and doctors (well heck, lawyers & everybody else) speak different languages, mainly lawyers perceive that there is a certainty in all medical decisions and doctors know that the human body is terribly complex and there are no certainties in outcomes

    Again,
    Tx,
    Blossom

  2. Do you think the explosion of medical information and access to it through the web has created a simplified view of a complicated business? people punch in symptoms and voila diagnosis and treatment. Do you think this contributes to the climate of defensive medicine? I personally shudder when I see the patient with his printouts from the computer….he’s got the tree but is oblivious of the forest. I find this discussion fascinating but also sad.

  3. [...] White Coat begins taking notes on how many times he practices defensive medicine in the course of a day in his emergency room, and concludes that, no, the whole phenomenon isn’t just a figment of his imagination the way so many lawyers say it is. More: Max Kennerly takes an opposing view, and White Coat returns for a followup post. [...]

  4. paul says:

    great post. let me offer my own shorter version:

    people without medical training claiming to know how to practice medicine are morons who are not worth listening to.

    unfortunately, they get to make the rules anyway…

  5. Max Kennerly says:

    Thanks for the link! It’s great to get a dialogue going.

    Just to be clear, I didn’t use the phrases “shoot the moon” or “million dollar workups,” but I did suggest that physicians should rule out severe and life-threatening conditions first.

    I’m surprised you’d disagree. Truth is, you don’t. Think back to all of the examples you provided in your prior post — why did you order all those x-rays and CT scans? To avoid a lawsuit?

    Nope — no physician has ever been held liable for not performing an x-ray or a CT scan. There’s no harm from simply not performing a test.

    Physicians are liable for not ordering tests when they should have AND when harm was caused by that failure. You ordered all those tests because, in your judgment, there was a reasonable chance that the ‘unlikely’ scenario was the actual diagnosis.

    Let’s take the 60yo woman on coumadin with the head injury. You tried to dodge those initial facts by recasting it as “a headache” and then listing all the potential but unlikely causes.

    Well, she didn’t have “a headache.” She was on coumadin, had a fall, and then had a headache serious enough to bring her to the hostpial, which is why you ordered a CT scan looking for brain bleeding, and not a lumbar puncture looking for pseudotumor cerebrii.

    You applied your judgment, saw an unlikely by possible serious complication, and ruled it out. That wasn’t “defensive,” it was “appropriate” — if you didn’t think there was a reasonable chance of her having a brain bleed, then you’d have absolutely no reason to fear a lawsuit.

    Moving on to your child with the runny nose and the cough, it’s hard to take your example seriously when you first propose the “child” go to a unit reserved for neonates. If a neonate has an obvious infection, that is a very serious issue that will be treated accordingly, likely with multiple antibiotics and multiple x-rays to repeatedly check pulmonary function.

    If by “child” you mean the typical toddler going to a pediatrician, then, yes, I submit to you that if the pediatrician has reason to suspect something more serious than a typical cold then they should rule out that serious possibility. You gave no other facts than “every child with a runny nose and a cough.” I have kids. They’ve had runny noses and coughs. My pediatrician ordered no tests. That’s fine; it was a typical kid with a cold.

    But let’s mix it up, the way it happens in real life: my child has had a severe cough for over a week now, has shown trace blood in her mouth, can’t sleep, and won’t eat.

    Now what? Go home?

    Or should you look for something more?

    “Defensive medicine” doesn’t exist — the concept requires a doctor somehow see enough of a risk to fear litigation but not enough of a risk to warrant testing. What sense does that make? Either the doctor fears the serious outcome or they don’t.

    But the ball is in your court — what would you have us do different? Set up a, say, 5% rule? As in, if something has a less than 5% likelihood, physicians as a matter of law need not look for it?

    You tell me. I hold doctors to the standard of keeping people safe by making sure patients don’t have any serious or life-threatening complications that are reasonably foreseeable. You want something less than that.

    • WhiteCoat says:

      You’ll note that you still failed to answer my question.
      You were the one critical of my thoughts about sending home a patient who bumped her head, had a headache 5 days later and was on Coumadin.
      I asked you to come up with a prospective rule that I could use to practice “good” medicine in the future and you still failed to provide one.

      You’ll also note that you changed your tune regarding what physicians must do to work up symptoms. Initially it was “eliminate the most serious and unlikely diagnoses first, then continue basic evaluation.” In your comment above, you now state that physicians only need to “apply judgment” and should apparently only do the “megaworkup” if they have a “reason to suspect something more serious.” So if an obscure but deadly disease presents with just the same symptoms as a common benign disease (leaving no reason to suspect something more serious), then physicians should *never* be liable for missing the obscure disease, is that correct?

      What to do about it? Expert witness reform – maybe have a panel of experts hired by the court and paid by both sides. Get rid of lay juries. Make patients “get some skin in the game” so they don’t demand expensive testing just because it doesn’t cost them anything. There are a few ideas to start.

  6. paul says:

    i encourage one and all- instead of reading max kennerly’s posts, just re-read post #4 each time he has anything to say. you’ll get the same message either way.

  7. William the Coroner says:

    Mr. Kennerly says “I hold doctors to the standard of keeping people safe by making sure patients don’t have any serious or life-threatening complications that are reasonably foreseeable.” In lawyerworld, if you can think of it, means it is reasonably forseeable.

    His standards will partially eliminate the problem of missed diagnoses. They do not eliminate the problem of incorrect diagnoses (false positives) or missed diagnoses (false negatives) which occur on every test.

    If you use the retrospectoscope, it is very easy to see where things went wrong or were misinterpreted in hindsight. It is much, much more difficult to go forward in time and eliminate bad outcomes.

    Resources are finite. Particularly time. If you spend too much time ruling out the foreseeable but rare things on one patient, you are not attending to someone else. As WC pointed out, you are diverting resources that could be used to help more people to benefit fewer ones. If only a few people can get resources, and the rest do not, how safe are the majority of the people?

    If your child has a birth injury, that sucks. If you or your loved one has a rare thing that leads to a bad outcome, that is unfortunate. You’re going to die eventually, and we as a culture do not accept that, so ultimately the doctors cannot win.

  8. Max Kennerly says:

    Paul,

    At a medical malpractice trial, the plaintiff has to bring in a physician with medical training in the appropriate specialty to testify that malpractice occurred.

    In a lot of states, you have to bring them just to file suit.

    Physicians set the standard of care — the “rules” — not lawyers.

  9. Bram says:

    >>Nope — no physician has ever been held liable for not performing an x-ray or a CT scan. There’s no harm from simply not performing a test.

    Physicians are liable for not ordering tests when they should have AND when harm was caused by that failure…

    “Defensive medicine” doesn’t exist — the concept requires a doctor somehow see enough of a risk to fear litigation but not enough of a risk to warrant testing. What sense does that make? Either the doctor fears the serious outcome or they don’t.<>I have kids. They’ve had runny noses and coughs. My pediatrician ordered no tests. That’s fine; it was a typical kid with a cold<<

    RIght, you see, it all works when the kid actually has a cold, but what about when it something else. I saw a kid in the ED who was septic and later died. He went to another ED the prior day with a sore throat and a fever. He was diagnosed with a viral syndrome and sent home. The problem is that no one knew that he actually had undiagnosed leukemia and the “viral syndrome” was actually the early stages of a serious infection. Simple blood testing might have suggested underlying disease, but we will never know. Is that physician negligent? I’m sure that no lawyer will say, “since you didn’t suspect it, it must not have been bad enough to test for.”

    That is how defensive medicine comes about.

  10. Bram says:

    Formating issues eliminated part of my prior comment. This is the text in full.

    —Nope — no physician has ever been held liable for not performing an x-ray or a CT scan. There’s no harm from simply not performing a test.

    Physicians are liable for not ordering tests when they should have AND when harm was caused by that failure…

    “Defensive medicine” doesn’t exist — the concept requires a doctor somehow see enough of a risk to fear litigation but not enough of a risk to warrant testing. What sense does that make? Either the doctor fears the serious outcome or they don’t.—

    This could only have been said by a lawyer. There is a no way a doctor would even consider a statement so foolish.

    The problem is that every doctor has to try and make an educated guess about what is going to be important. People don’t fit the book. There is always that one patient that has the unlikely diagnosis.

    In the US, there is zero tolerance for missing a heart attack. You miss one, just sign the check. Thus, I become far more concerned when any patient complains about chest pain. Add to that the body of evidence that discusses angina equivalents. I can make an argument that almost any patient, of virtually any age, has some finite probability that the complaint they are in the ED for is actually the sign of a heart attack. Thus, they get a cardiac evaluation.

    Pulmonary embolism can pretty much manifest as any symptom. Thus it is essentially always on the differential diagnosis. More over, if the patient is diagnosed with a venous thrombotic event in the next 6-12 months after I see them, I can successfully be sued if I didn’t prove there was no PE when I saw them. Same thing with a heart attack, frankly.

    That is defensive medicine. It is not that the physician thinks a person has a possibility of having a disease and thus performs a test to eliminate that possibility. Defensive medicine is thinking that a person doesn’t have a disease, but doing the test anyway to prove that they don’t for the purposes of preventing litigation in the rare case that the clinical evaluation is wrong. The purpose of the test isn’t to diagnose the patient. The purpose of the test is prevent the possibility of litigation.

    —I have kids. They’ve had runny noses and coughs. My pediatrician ordered no tests. That’s fine; it was a typical kid with a cold—

    RIght, you see, it all works when the kid actually has a cold, but what about when it something else. I saw a kid in the ED who was septic and later died. He went to another ED the prior day with a sore throat and a fever. He was diagnosed with a viral syndrome and sent home. The problem is that no one knew that he actually had undiagnosed leukemia and the “viral syndrome” was actually the early stages of a serious infection. Simple blood testing might have suggested underlying disease, but we will never know. Is that physician negligent? I’m sure that no lawyer will say, “since you didn’t suspect it, it must not have been bad enough to test for.”

    That is how defensive medicine comes about.

  11. Matthew says:

    Max,

    You’re mistaken. If there was a “standard of care” that was set by anyone and not open to interpretations by a jury of laymen, influenced by lawyers looking to create as much emotion and remove as much reason as possible from the process, we wouldn’t even “need” an adversarial system at all.

    It’s true, some states do require a hired gun to bring a suit against a doctor. And many of the hired guns that do that sort of work are hired guns alone, and don’t even practice medicine, lawyers provide them with enough funding to live on only that.

    You know those things as well as I do, and probably better. The fact that you would put forth such obvious misinformation is disappointing, but, given your profession, not unexpected.

    Next you’re going to tell me that you only use preemptive challenges during jury selection to make sure that only unbiased people who will look at the evidence fairly are on the jury, right?

    You’re only kidding yourself. You would get more respect and make more sense if you would at least be open and honest about the processes you use to profit.

  12. What the public needs to realize is that all of this extra testing is not without harm.

    Case in point, I went to a conference in Las Vegas and I brought my wife with so she could see the city and have a vacation. We were both about 25 at the time. While there, my wife started to have a burning pain in her chest and since her father had a bad ticker, we went to an Urgent Care Clinic nearby just to be sure. They heard chest pain and hooked her up to an EKG. The EKG told them she had a rare but dangerous heart condition. She immediately got sent to the local ER (Desert Palm), where she was admitted and got to spend 2.5 days while they ruled out everything.

    Final diagnosis? Acid reflux, triggered by the excessively smokey atmosphere of the casino floor (we don’t smoke so the smoke was an irritant to us).

    How much money was spent just to find out my wife needed an antacid?

  13. paul says:

    max,

    there is no such thing as standard of care (at least where lawsuits are concerned) when you can be sued for witholding tpa in stroke with clear contraindications and you can be sued for giving tpa in stroke and converting the stroke to hemorrhagic even if the patient/family signed off on the risk.

    your central point is that defensive medicine doesn’t exist?

    i am an emergency medicine physician. in the fast track shift i’m working today, so far i have ordered one xray on a humerus which was likely to be positive (turned out to be positive but nondisplaced), and 6 xrays and 1 ct scan on people who had virtually zero chance of having a positive finding, just in case of the 1-in-a-million chance that they have some bad outcome down the road and decide to drag me into a lawsuit over my “gross negligence” for not ordering imaging studies. all of these studies were negative.

    let me make this clear. I PRACTICE DEFENSIVE MEDICINE. you are someone with no medical training who does not practice medicine, claiming that defensive medicine does not exist. how does your claim carry any weight in the absense of first hand experience of medical care as it unfolds in real time?

  14. paul says:

    as for “making the rules” by which we practice, i would agree that the lawyers aren’t the biggest problem…

    but there are far too many nonclinical entities dictating how medicine is practiced- not just malpractice lawyers but administrators, the joint commision, press-ganey, commercial insurers, cms, entitled patients, and on and on…

    one thing i will say that tends to go unmentioned by physicians is that we deserve a hefty slice of the blame pie ourselves for being unwilling/unable to work together, have a bigger voice and take back the practice of medicine to what it should be… sadly it seems that nowadays the providers of care and its recipients who don’t abuse the system seem to be the least influential in how the care is delivered…

  15. B.RAD says:

    Well said Paul and Bram. Max, here is another one for you. I just finished reading an Lumbar MRI (cost about $1500) on an elderly patient with chronic low back pain. She has horrific arthritis and disc disease and all levels with severe scolisis. I don’t think a neurosurgeon would touch her. She also had a routine xray of her low back 2 weeks ago (cost about $90) which basically showed the same thing, plain film equivalent. In other words, the plain film showed a likely and common source of this woman’s complaints. Why the doctor ordered an MRI, I have no idea but I bet he justs “wants to be sure”.

  16. Max Kennerly says:

    Paul, you said you were practicing “defensive medicine” by looking for something with “virtually zero chance of having a positive finding, just in case of the 1-in-a-million chance that they have some bad outcome down the road…”

    At what point does that ‘chance’ leave prudent medicine and enter defensive medicine? 1-in-ten-thousand? 1-in-one-thousand? 1-in-ten?

    You saw a possible risk, a risk large enough for you to genuinely worry about a “bad outcome,” so you ordered a test to rule it out. Simple. Are we supposed to be sympathetic that your root motivation was covering your own behind rather than ensuring patient safety?

    As with the original poster, you have not said how you would like to change the system to make it better. Every single complaint I’ve heard about defensive medicine has turned out to be a dressed up argument for wishing they were never liable for anything at all. Well, we’re not going to do that, it’s not safe and it’s not fair.

    So where would you draw the line at which a doctor should no longer be liable? Should we change the law to be, “a doctor shall not be liable for the failure to diagnose where the likelihood of the condition not diagnosed was less than 1%?”

    Again, the standard you’re held to is to rule out all serious or life-threatening conditions that the standard of care dictated you should have considered. That’s it.

    This is apparently unfair to you because, well, I don’t know why — because you have to order and bill for some additional tests? How’s that unfair to you? What’s your better solution?

    • Dan says:

      At what point does that ‘chance’ leave prudent medicine and enter defensive medicine? 1-in-ten-thousand? 1-in-one-thousand? 1-in-ten?

      Here’s one simple answer: when the risk of the test exceeds the risk from finding the rare event.

      (I haven’t even brought in the cost of the test, which is an important consideration.)

    • WhiteCoat says:

      A simple answer for me would be that whatever standard is used as the “reasonable degree of medical certainty” by medical expert witnesses should also be the standard by which physicians are judged.
      Want a “more likely than not” standard? Fine. Your cases will all get kicked out of court on summary judgment. To prove negligence, you would have to prove that it is “more likely than not” that the patient had the disease given the presenting complaints. Not even my kids would miss a diagnosis like that.
      Want a “highly likely” standard? Then the plaintiff has to prove it was “highly likely” that a disease was present before a physician could be found negligent.
      Go ahead and use a criminal standard for all I care – “beyond a reasonable doubt”.
      You just have to apply the same standard for treatment as you do for judgment. We don’t do that now. Experts are allowed to testify to a “reasonable degree of medical certainty” (which is often a 51% standard) but physicians aren’t allowed to use the “reasonable degree of medical certainty” in their practices – often being required to find a “needle in a haystack.” You consider that fair?
      Want a number instead? I’ll throw out 1 in 200. If something is less than 0.5% likely to occur given the totality of the circumstances (previous tests, duration of complaint, physical examination, etc), then there should be no liability for missing it. Maybe the number needs to be revised up or down a little, but it’s a start.

  17. paul says:

    i’m not asking for sympathy. i’m stating defensive medicine exists because i and many others practice it, and the opinion of someone not in the trenches claiming it doesn’t exist carries no weight.

    as someone who practices medicine, your posts are painful to read. i should have stuck with my original brief point because that’s really what it comes down to.

    i’m done wasting my time talking to you.

  18. Max Kennerly says:

    It all comes down to a simple point: if something is likely enough for you to worry about it happening and you getting sued, then it’s likely enough that you should either test for it or present testing to the patient as an option.

    What’s wrong with that? Apparently nothing but vague complaints about cost — costs which you, as an ER doctor, don’t bear. So, for your fear of costs to a hospital or an insurer, a patient should not be tested for risks you believe likely?

    That doesn’t make sense.

    • WhiteCoat says:

      Society bears the cost because less medical care is available, more harm is done from chasing false positive “defensive” testing, and, when people go bankrupt from the medical testing, they forgo routine medical care that might catch diseases earlier.
      You’re confusing likelihood with punitives.
      If the potential downside to a decision is severe, then most people will not make that decision.
      A malpractice suit can cost a physician all their assets and their license, and their ability to get malpractice insurance which is essentially a death knell for their livelihood. Why would a physician even take a 1 in 10000 chance at such a risk? The average emergency physician sees about 15,000 patients in a year.
      I’m sure that your follow up question will be “what about the 1 in 10,000 patients in whom the disease is missed”?
      When all the money for basic healthcare is being spent chasing some remote possibility of a serious disease, and when tens of thousands of patients are not able to afford, or even find, basic medical care, then you tell me – “what about the other 9,999 patients”?

    • Mr. Kennerly:

      If you could potentially be sued for all of your assets and have yourself disbarred for missing a point of law during a trial (say, there was an obscure ruling that benefited your client and you missed it), what standard of legal competence would you demand? How much would meeting that legal standard raise your costs? Would you care since you can just pass the costs onto your clients?

  19. WhiteCoat says:

    Getting the points out in the open is a good thing. Please don’t let your emotions turn into personal diatribes.
    Remember – attack the idea, don’t attack the person.

  20. Jane says:

    I think more emphasis needs to placed on the fact that “harm” can be done to patients by increased testing. Every CT scan with IV contrast, every heart cath, etc and when complication occur from these radiological contrast happens the physician is liable for that. It is as if those in health care have become the “enemy”. It is just madness. Noone is perfect and trying to be is just going to cost us in the end, emotionally and financially. I am tired as a nurse of having my patients subjected to this defensive medicine as it is practiced. I am afraid myself of ever having a symptom of anykind due to the fear of this massive testing that I see my patients go through.
    The bottom line is this- We are humans not machines. We are not going to live forever, we are going to get sick, some things can not be fixed, and going to the doctor is not the fix all.
    This “fix me or I will sue you,” attitude is just insane.

  21. igloodoc says:

    Max
    When you see your next client, let’s play a game. I want you to assess you chances of winning the case from the initial client interview. Now, I want you to take the case, because, you have to admit that there may be an infinitesimally small chance that you could win. And if that chance exists, you have to take the case to the bitter end, be it settlement or trial. Because you thought there was a chance you could win.

    Now that you are taking all clients, how long are you going to stay in business? How long until the courts get wise to your constant filing of lawsuits and the complaints to the bar start? How long until the judges just start writing off the avalanche of your suits as frivolous and without merit, and start asking other lawyers to oversee your cases, and exercise proper legal judgement?

    What? Using judgement to decide about taking a case? But you have an infinitesimally small chance of winning! You HAVE to take the case!

    After all, that is what you expect of doctors.

    “It all comes down to a simple point: if something is likely enough for you to worry about it happening and you getting sued, then it’s likely enough that you should either test for it or present testing to the patient as an option.”

    Wrong. Or it should be.

    Just as it is your job to use judgement to see if a case is winnable, it is our job to use our judgement to assess the patient and order tests appropriately to confirm our diagnosis.

    But, your attitude is forcing me to order tests to prevent you from retrospectively saying my judgement was wrong. I don’t mind. How much did your healthcare premiums go up last year? After all, the healthcare system can afford it, right? And you take all clients, regardless of odds of winning, right?

    • igloodoc says:

      To complete the analogy, Max, let’s assume your are like your brethren and screen your clients, using your judgement. You keep your business alive and prosperous, you don’t clog up the practice with losing cases and the courts love you.

      Now along comes a case, which in your experience, is a loser. You turn it down. The discharged potential plaintiffs go down the street and another lawyer takes the case and wins a huge settlement. The plaintiffs now come back and sue you to the limits of your malpractice policy because you should have taken the case and won them an even bigger settlement.

      Because, as you inferred, lawyers determine the standard of legal care, and I’m sure there are no lawyers out there that would doubt your reasoning despite large sums of money. But, retrospectively there is the fact that the plaintiffs did win a big settlement, and you obviously didn’t develop the proper legal theory or missed a landmark case of State v Somebody, or a myriad of other reasons that you didn’t do the proper “due diligence” tests. So maybe, with the right amount of money, given the outcome, some lawyer somewhere in the country will testify against you.

      So now you are on the hook for your policy limit, and your malpractice rates will go up or you may deemed uninsurable. Goodbye career, hello greeter at Walmart. Or, if you went to court and lost big, the plaintiff can now take your house and anything you own.

      So, were I be you, I’d be accepting all those cases, even if you think it is remotely possible to win, because if something is likely enough for you to worry about it, you should take the case or allow the client the option.

      • Max Kennerly says:

        I don’t want to be the WhiteCoat troll with dozens of comments, but I did want to respond to this point specifically.

        When a case comes into my office, if I think there’s a chance of there being liability, I send it off to a physician for review, paying the costs out of pocket. The vast majority of the time, the physician comes back with “I doubt it” or “no.”

        That’s the appropriate analogy for your example: when I perceive an outcome to be large but unlikely, as a matter of prudence I run my ‘tests,’ e.g. outside expert review, despite the costs.

        The same goes for most businesses: car companies spend a whole lot of time figuring out how to keep the fuel from catching fire after an accident.

        The odd man out here is the physician who claims that their primary role is to shuttle people in and out of the practice, rather than to detect serious or life-threatening conditions.

        Core point is: if you think something is likely enough that you’re unwilling to bet your insurance policy against it, then it’s likely enough that you shouldn’t be willing to bet the patient’s life, either.

        Thankfully, that’s also the standard of care: rule out the big, serious problems first.

  22. [...] judgement and experience January 22, 2009 — seejanenurse There is a great article over at White Coats Call room it also links back to another article with dialogue between White Coat and Maxwell S Kennerly [...]

  23. tyro says:

    There is a whole other aspect to ‘defensive’ medicine, and that is increased admissions for low-risk patients. There is a huge cost for the patient themselves as well as a significant risk of hospital-acquired infection in order to ‘rule out’ a cardiac event, and the quality of testing is poor–often a stress test, which cannot rule out UA in a low-risk patient.

    There are also huge downstream risks to ‘can’t miss’ therapies. Say, for example, you are a PMD and you put your 75-yo with A fib on Coumadin for A fib instead of aspirin because you think it’s stronger and don’t want to get sued. That patient then gets in a car accident, low speed T-bone, say, and has a subdural with persistent deficit. Now, what is the ‘cost’ of that original decision to start Coumadin?

    No doctor will say that in a perfect world, patients should not have recourse to recompense for damages. But the current climate is such that we are committing sins of commission to avoid sins of omission.

    It’s not just the $1000 to $1400 for the head CT.

  24. tyro says:

    Not to mention there are thought-provoking articles in the Annals of EM that show an increase in mortality that is proportional to ED crowding for all complaints. That means all those folks stuck in the ED for their million-dollar work-ups are increasing mortality for those who are really sick.

  25. Max Kennerly says:

    WhiteCoat wrote, “A simple answer for me would be that whatever standard is used as the ‘reasonable degree of medical certainty’ by medical expert witnesses should also be the standard by which physicians are judged.”

    That, in fact, is the law. To prove negligence in a failure to diagnose case, I need to have an expert opine that, to a reasonable degree of medical certainty, the standard of care dictated that, given the presenting circumstances, the doctor should have run the test.

    (I also have to have an expert opine, to a RDMC, that such failure was causally connected to the harm later experienced by the plaintiff.)

    So, I’m at a loss. Another poster implied the standard of care is all bunk, and that I’m a liar for not revealing that my experts are all hired guns who never practice. That’s simply not true. In Pennsylvania, where I’m based, it’s not true as a matter of law — our MCARE statute has specific requirements for expert qualification, including that the expert either practiced or taught in the specialty in the past few years.

    It’s also not true as a practical matter. I can’t recall the last time I used a physician who wasn’t currently practicing; last year I called an expert to testify that, in his whole 25 year career, had produced exactly one report — the one in that trial. His prior ‘expert’ work was in reviewing cases for his state’s board of medicine.

    So I guess we’ll have to go with numbers: you suggested a doctor should not be held liable for failing to diagnose an illness with a likelihood below 1 in 200, given the presenting circumstances.

    Do you think I’ll be able to find a credible expert, backed by medical literature, holding you to a higher standard than that? I doubt it. Most of my failure to diagnose cases should have smacked the physician right in the face. Last year I had a woman regurgitating blood for months; GP told her it was reflux, gave her nexium. Turned out it wasn’t reflux. I’ve turned down plenty of cases where someone had cancer that could have theoretically been discovered years prior; if it wasn’t enough to smack the doctor in the face, it won’t fly with a jury. Recall that two-thirds of medical malpractice verdicts are for the defense.

    But let’s get back to your situation on the ground, as it were. Most of the examples you gave in your initial posts related to social pressures — like the nurse’s relative who pressured an administrator, or the mental institution that required the workup — and not concerns about your own liability.

    When it comes to the line between prudent medicine and defense medicine, you seem to wish you were judged by a more likely than not standard, that you would not be liable if, more likely than not, the patient had the benign condition you thought they had, not the serious condition. That’s implied by your prior post, where you reach a most likely judgment but then have to do something else to “make sure” it’s not the unlikely possibility.

    Absolutely no one else in society is held to a standard that low. 1 in 200 cars or planes fatally crashing would cripple the economy. 1 in 200 dishes served fatally poisoning would end the restaurant industry. 1 in 200 buildings collapsing? 1 in 200 appliances catching fire? Any of those would get the companies swiftly sued out of business.

    Is this level of coverage for medicine expensive? Of course it is. But it’s also the primary role of a physician: to discover and treat deadly or serious diseases. There are few better places we can direct our efforts than towards prompt recognition and treatment of myocardial infarction, which is why the whole ER ends up bowing down to every idiot with chest pain. Because it has to. Because that’s the most likely cause of death in the US.

    Which is part of why no one has been able to credibly calculate any “cost” of “defensive” medicine — because whenever they do, they end up finding doctors at worst subjectively avoiding liability by ruling out the serious and life-threatening conditions first, an expensive but appropriate practice.

    Ironically, unlike most industries doctors can change this, start producing articles and textbooks and CMEs about how the excessive costs of modern medicine warrant far less effort directed towards unlikely possibilities. They could even lobby the government to tuck that in the tort laws, there’s nothing stopping them.

    But as it is now, I don’t have any trouble finding well credentialed doctors and respected medical texts to say that doctors should rule out all reasonably foreseeable serious or life-threatening complications before proceeding to a benign diagnosis. Why is that?

    • Dan says:

      If you do 200 chest x-rays to find only 1 person with a sternal fracture, that one person with the sternal fracture might be better off. But what about the increased rates of cancer from those 199 additional chest x-rays performed on the city’s population?

      Of course, a lawyer cannot point to the a specific chest X-ray that gave their client cancer, so no one is sticking up for them.

    • Dan says:

      I’m sorry to double post, but this is really sticking in my craw:

      Absolutely no one else in society is held to a standard that low. 1 in 200 cars or planes fatally crashing would cripple the economy. 1 in 200 dishes served fatally poisoning would end the restaurant industry. 1 in 200 buildings collapsing? 1 in 200 appliances catching fire? Any of those would get the companies swiftly sued out of business.

      There is a 200 in 200 chance that you will die. Medical tests cannot stop this. Even if a doctor correctly found and cured my sickle-cell anemia, prostate cancer, lupus, and shingles, there would still be something else that showed up and killed me.

      Products are designed and built. I know when I ship someone a widget that it functions properly, and if it gets damaged I can replace it with another widget. Doctors, on the other hand, are doing diagnoses of incredibly complex systems that are not under their control.

      It’s a peculiar American pathos that we think we can “test ourselves healthy,” but every test involves costs, time, risks, and false positives. The pap smear stands out as one of the very very few modern tests that has actually improved patient health, because it is non-invasive and the treatments for what it discovers are straightforward.

  26. ERP says:

    Set up medical courts and ditch lay juries once and for all. Loser pays the costs. If the plaintiff (or defendant) can’t afford that, then his or her lawyer should pay. They don’t like it? Well, I bet they won’t take bogus cases just to strong arm a settlement. Problem solved.

  27. ToLazyToThinkOfOne says:

    Well in my case they guy who wrote the guidelines was willing to testify that my team did nothing wrong and did the appropriate level of testing. Our lawyer felt we’d win at trial 60-70% of the time. But 30-40% of the time we might lose because, well, dead looks bad.

  28. What Max is saying is that the standard for a judgment at trial is much higher than many seem to think. What the Doctors here seem to be saying is that it isn’t about the trial as much as it is about the fact that if a person looks long and hard enough, they will find an attorney to take the case, which will either result in a settlement or a trial, both of which cost the doctor and the hospital time and money. Ideally, we should have a screening process such that a lawyer can not even bring a case unless a certain standard is met, a standard greater than, “another doctor disagreed with the MD in question”, which to me seems to be the standard we are currently operating under in many parts of the country.

    Absolutely no one else in society is held to a standard that low. 1 in 200 cars or planes fatally crashing would cripple the economy. 1 in 200 dishes served fatally poisoning would end the restaurant industry. 1 in 200 buildings collapsing? 1 in 200 appliances catching fire? Any of those would get the companies swiftly sued out of business.

    Now I’m not a doctor, but I am an engineer, and this is comparing apples to oranges! The design of cars, appliances, aircraft, buildings, etc is conducted over a period of years and involves the efforts of hundreds or thousands of dedicated professionals who design, then check, then recheck, then check some more, with numerous opportunities to find and correct errors.

    MDs get to work alone, have maybe a few minutes to a few hours to figure out what is going on (and that is not their only focus), they usually work on incomplete information (as Dr. House says, patients always lie, or forget to mention something) and an MD can be personally sued for injury, as well as death. You try suing an engineer because your wheel fell off and you crashed your car. You can sue the company, but you can’t touch the engineer.

  29. Rogue Medic says:

    One of the big problems of the legal system is the lack of an informed jury. After the outcome is known, anyone can make it seem that if only this one test had been done, birds would be singing and the sun would be shining (unless you are prone to skin cancer).

    The reality is that, in retrospect, we are presented with an artificially oversimplified situation. We cannot unlearn the outcome that we already know. It is like watching The Sixth Sense after you know what the secret is. Everything that points to that secret seems more obvious.

    if you think something is likely enough that you’re unwilling to bet your insurance policy against it, then it’s likely enough that you shouldn’t be willing to bet the patient’s life, either.

    One point you seem to be missing is that there does not need to be a belief that the condition exists. Zero. But, if the patient develops the condition later, you need to be able to prove that the patient did not have the condition at the time the patient was in the ED. This is not at all thinking it is likely that the condition exists.

    For example, a drunk complains of something. The drunk will go back out into the world and he surprisingly will not suddenly see the sobriety. The drunk hits his head, because drunks do that. The ED physician will be the target of somebody, unless there is the ability to prove that the brain bleed did not exist when the drunk was in the ED. Due to the socialized medicine programs already in place, everyone else pays for these scans. Does the patient benefit from repeated scans? No, it may be worse for the patient.

    The physician is engaging in preventive defensive medicine. Why? Because drunks do fall down. Again and again and again. The job of the lawyer is to create suspicion that the physician could have prevented whatever happens by suggesting it had begun before the ED visit. The lawyer is not providing any proof, just suspicion.

    It’s kind of like when asks you a loaded question. There is no right answer. There is no safe answer. Whatever you say will be proof of guilt. Guilt of what? Being stupid enough to be there at the time the wife is asking this question.

    Absolutely no one else in society is held to a standard that low. 1 in 200 cars or planes fatally crashing would cripple the economy. 1 in 200 dishes served fatally poisoning would end the restaurant industry. 1 in 200 buildings collapsing? 1 in 200 appliances catching fire? Any of those would get the companies swiftly sued out of business.

    Amusing sleight of hand, there. You compare the incidence of a bad outcome in 1/200 cars or 1/200 planes as being the same as a single patient with a 1/200 chance of having a condition. They are not at all the same.

    Maybe the comparison should be 1/200 patients having an inappropriately bad outcome. Similar to a car having an inappropriately bad outcome of a preventable fatal crash caused by poor design. But these are physicians seeing 10,000, or 15,000, or 20,000 patients each year without any inappropriately bad outcome. That 1/200 chance on the 1/15,000 case is the one they are describing. Presenting it as a 1/200 likelihood, comparable to 1/200 airplanes being fatally faulty, or 1/200 autos being fatally faulty, or 1/200 buildings collapsing, is misleading.

    As Madrocketscientist wrote – this is comparing apples to oranges! It may work in a court room, but it is faulty logic.

    • Matt says:

      “One of the big problems of the legal system is the lack of an informed jury”

      So inform them. That’s what the lawyers who try the cases do. And most med mal defense lawyers are very good at their jobs. But if juries are so dumb, why do they decide in favor of the doctor so often? Are they wrong when they do?

      “The lawyer is not providing any proof, just suspicion.”

      Without proof, the lawyer doesn’t survive summary judgment. How many cases have you tried again?

  30. I have two rants that need to be aired:

    1) As a medical student, I’d have to say that a lawyer’s understanding of a H&P and differential diagnosis is akin to my understanding of civil proceedure. I’m actually insulted that a lawyer would claim to understand what I’ve spent my life learning to do.

    A disease is an evolving process occuring over a period of time and presenting a variable constellation of symptoms. Meanwhile, the physician’s interaction with the patient is a small cross-section of that time that allows him to retrospectively collect subjective information from the patient and what the patient looks like sitting in front of us. Often, the intricacies of patient’s illness can not be fully understood in-the-moment by the physician and there needs to be further workup. However, in that grey zone without a definitive we need to treat the patient!!

    Differential diagnosis is not just a process of ‘ruling out the worst things first’!!! THAT IS DEFENSIVE MEDICINE at its worst!!!! Ddx is a fluid process of prioritizing what the most likely disease process at work and then definitively defining it with lab work and imaging. Our ability to prioritize comes from large population-based studies showing how often certain disease are likely to occur given a likely set of risk factors. That knowledge in combination with seeing thousands of patients constitutes a medical education.

    Whether you realize it or not, medicine comes down to population statistics and not shotgunning labs. That’s the whole point of going through medical school and residency. Any schmuck or computer program can order tests at random based on a symptom to rule out EVERY DISEASE. It takes a physician figure out what’s actually causing your vague “belly pain” and fix it.

    2) My problems with medical malpracice law lies in the fact that a malpractice trial retrospectivly examines the entire course of disease in the light of day and judged by a group of lay-people holding us to the rigid margins of a standard of care that they couldn’t hope to undstand, with absurd amounts of money on the line. What bothers me more is that we are then required to keep insurance and change the way we practice to shield ourselves from the prospects of litigation.

    Yes, there are bad doctors out there who make bad decisions and hurt patients out of thier own ignorance…and they should not be practicing. However, there are also bad lawyers who bring frivolous malpractice suits against good physicians for unfortunate outcomes for profit (John Edwards anyone?). It’s a flawed system that hurts more than it helps.

  31. Matt says:

    “And that’s why this country spends more on medical care than any other country in the world.”

    What a silly statement. Of those countries with a per capita income that is close to ours, almost all have universal health care controlled by the government. Defensive medicine, the great undefinable canard, has nothing to do with it.

  32. B. RAD says:

    Matt

    The next time you go to your local ER for relief of that nagging chest muscle you pulled, and while there, after you get an EKG, cardiac enzymes, CBC, Chem study, d-dimer, CT pulmonary angiogram to rule out embolus, and a Cardiology consult, let us know if your opinion is the same.

    And this happens many times a day, in every hospital in the US of A.

  33. tyro says:

    Um, I would point out that ruling out the worst possible things IS what I do. It’s the first teaching we get at EM med students and residents. ‘Gastroenteritis’ is a terrible diagnosis. What if it’s mesenteric ischemia? Aortic dissection? MI? Pancreatitis? These need to be addressed. ‘Gastroenteritis’ is the most commonly prosecuted chief diagnosis (EM RAP, google will help).

    However, I should be supported by society and the legal code if I do that well based on my history, focused physical, and judicious labs. Am I?

    • Matt says:

      Aren’t you? Your society has made your profession the highest paid in the world. Your legal system has essentially allowed your profession to set the standard by which you’re judged. What else do you want?

    • Tyro- I was referring to the process of ddx in general…I just don’t like lawyers pretending they understand what we do.

  34. tyro says:

    Sorry, the above should read:

    However, I should be supported by society and the legal code if I rule out emergent conditions based on my history, physical, and judicious labs. Am I?

    • Max Kennerly says:

      Yes.

      You are liable for damages caused by your failure to meet the standard of care. The standard of care is to “rule out emergent conditions based on [your] history, physical, and judicious labs.”

      If something is likely enough to make you worry about your malpractice insurance, it’s likely enough to rule out for the patient’s benefit.

      Simple as that.

      • WhiteCoat says:

        The “standard” you quote is found in no legal case and no medical textbook. NONE.
        The standard of care requires only that people act reasonably. Unfortunately, some “experts” make an excellent living testifying otherwise.
        If you spread misinformation such as this and even dare to allege that this is the standard of care to a jury, it would be an ironically sad commentary on how you misinform others for your own profit while causing the medical system to crumble.

      • Max Kennerly says:

        WhiteCoat, that’s just silly.

        “Reasonably” = “rule out emergent conditions based on [your] history, physical, and judicious labs.”

        Anything less would be an ironically sad commentary on the standards followed by some in your profession — an admission of a willingness to risk patient’s lives but not doctor’s malpractice premiums.

      • WhiteCoat says:

        “Reasonably” = “rule out emergent conditions based on [your] history, physical, and judicious labs.”
        Try giving me a pincite to that statement.
        Wrong again.
        So you’re telling me that the standard of care requires cardiac and pulmonary angiograms on EVERY patient with chest pain because those are “emergent conditions” associated with chest pain? EVERY patient with a headache gets a lumbar puncture because meningitis and pseudotumor are “emergent conditions” associated with headaches?
        If not, then, as I have asked four or five times now, how does one differentiate between patients that do need extensive testing and those that do not? I’ll make it easy for you — just break down the chest pain patients for me.
        Does anyone else find it odd that Max repeatedly avoids answering that question?

      • Max Kennerly says:

        “If not, then, as I have asked four or five times now, how does one differentiate between patients that do need extensive testing and those that do not? I’ll make it easy for you — just break down the chest pain patients for me.”

        It’s a deliberately unfair question — have you ever had a patient with simply “headache” or “chest pain?”

        Of course not. You’ve had patients with ages, genders, basic histories, current medications, prior related conditions, and severity of symptoms.

        As a matter of liability — just as a matter of peer review — you’re judged by what you do in light of the whole picture of the patient.

        If you chose to ignore all of those facts and consider the patient as “headache” without taking any history to determine if, say, the patient was on coumadin and recently had a fall, then you will rightly be judged negligent for failing to take the very first step every physician must take, the patient history.

        So neither I nor you can answer what you do with just “chest pain.” How old? Prior MI? Medications? How long have they had the pain? How severe is it? Are they having trouble breathing?

        There’s a reason we pay YOU instead of a computer to evaluate people in the ER — because you’re supposed to apply your training, experience and judgment to figure out what’s wrong with the patient.

        My point is a very simple one: if, in applying that training, experience and judgment you feel there’s a risk likely enough that it causes you to worry about your own liability, then the risk is likely enough that you should, as a matter of good medicine, check for it.

        That’s why I say defensive medicine doesn’t exist: the concept requires a doctor be worried about liability but NOT the patient’s health. How can that be? The doctor’s liability is inextricably tied to the patient’s health — no damages, no liability.

        You earlier proposed a “1 in 200″ rule. Then you tell me — when a patient comes in with chest pain, what should a physician look for to ensure the patient’s below 1 in 200?

      • WhiteCoat says:

        See, I KNEW that you’d waffle if you actually responded.

        Now you’ve reverted to saying that our “training, experience, and judgment” should be the determinants of whether or not testing should be done and, apparently whether liability should ensue.

        So if one physician does one thing based on his “training, experience, and judgment” and another physician does something else based on her “training, experience, and judgment” – then how can you hold one physician liable over the other? The facts are that physicians can be successfully sued for doing one thing and for doing just the opposite thing (example: tPA use in strokes). Therefore, “training, experience, and judgment” becomes irrelevant – they do whatever they can to avoid being sued.

        “If, in applying that training, experience and judgment you feel there’s a risk likely enough that it causes you to worry about your own liability, then the risk is likely enough that you should, as a matter of good medicine, check for it.”

        So the corollary of your point is that if a physician *doesn’t* “worry about his own liability,” then the risk isn’t there, the physician shouldn’t “check for it,” and the physician shouldn’t be sued. Is that correct?

        And the “ultra-worried” physician who does MRIs on every headache “just in case” is practicing appropriate medicine. Is that correct?

      • Max Kennerly says:

        That’s not “waffling” — you asked me to develop, in essence, a perfect flow chart for how to treat patients in an ER with “chest pain” or “headache.” That’d be a massive undertaking, one which I noticed you also chose not to do when I turned the question on you and asked you to define the parameters of your “1 in 200″ standard.

        To go for one example: tPA. tPA is a tricky medication. Liability is rare and usually comes from a physician blithely administering it without doing any sort of assessment for the risks.

        Back on your main point: “So the corollary of your point is that if a physician *doesn’t* “worry about his own liability,” then the risk isn’t there, the physician shouldn’t “check for it,” and the physician shouldn’t be sued. Is that correct?”

        In some sense, that’s true, since liability follows harm. If you’re not worried about liability, it’s because you’re not worried about patient harm. The question then is if you should be worried.

        The core point again is: if you’re reasonably worried about liability, it’s because you’re reasonably worried about patient harm, so you should either do the test or at least weigh the costs/benefits of the test and present it to the patient.

      • Dan says:

        if you’re reasonably worried about liability, it’s because you’re reasonably worried about patient harm,

        Other people have already pointed out at least one counterexample to this: the drunk who isn’t injured right now, but gets injured later. The test does nothing to improve his health. All it does is give the doctor legal cover.

        Tests have costs. If a test has a 1 in 200 test of uncovering a minor defect but statistically will cause 1% of people who receive it to get a fatal cancer, then we have a procedure that should not be done. But with lawyers running the madhouse, the procedure is done, because no one can be sued for the stochastic cancer.

  35. tyro says:

    The highest paid in the world? Really? What about investment bankers? CEOs? Professional athletes? Lawyers? Congresspeople, considering their ‘benefits’? I won’t complain that I’m underpaid, but the highest?

    Help me understand how I set the standard by which I’m judged, please.

  36. Matt says:

    “The highest paid in the world? Really? What about investment bankers? CEOs? Professional athletes? Lawyers? Congresspeople, considering their ‘benefits’? I won’t complain that I’m underpaid, but the highest?”

    Yes, absolutely. CEO isn’t a profession. You make a full 50% more on average than lawyers. Don’t know about professional sports, although given that in your major sports you typically have a less than a decade span of doing the job, I bet you break out better over a lifetime. Same with members of Congress. You are in the top 1% of all earners in the world, and top 3% of those in the US, on AVERAGE. Again, what more should society give you?

    “Help me understand how I set the standard by which I’m judged, please.”

    The standard of care is set by physicians. You guys make it. No case gets to trial without a physician testifying as to what the standard of care is, and being subject to cross examination on that fact. If you guys want set standards, all you have to do is promulgate them.

    • WhiteCoat says:

      You are obfuscating “highly paid” with “take home pay” – big difference when all the money paid to student loans and malpractice insurance and taxes is all factored in. Like to see some stats regarding a comparison of “disposable income”
      Regarding “standards”, many “usual suspects” testify to a standard that doesn’t exist because they earn a hefty fee for doing so.
      When standards are set for experts and attempts are made at enforcement by professional groups or state licensing agencies, then all the trial lawyers cry “witness intimidation”.

      • Matt says:

        I’m not obfuscating in the least. Those are salary figures produced by the Dept. of Labor. Salary is take home. Everyone gets taxes factored in, so I don’t know how that helps your claim. If you’ve got other figures, show them. Otherwise you’re just speculating. We shouldn’t base political decisions which affect people who have been injured by medical malpractice, which is what “defensive medicine” is all about, on your speculation.

        Don’t the doctors for the defense get paid when they testify? Or do they not qualify as “usual suspects.” Given the way that anyone who dares testify for a plaintiff, no matter how egregious the error, can you blame them for getting paid?

        Again, if you guys don’t have firm standards, it’s likely because you can’t agree on what they are. Look at how doctors fight their own review boards’ decisions.

  37. igloodoc says:

    One of my favorite posters from despair.com has the caption “No one raindrop believes it is responsible for the flood”.

    I guess lawyers truly and sincerely believe that defensive medicine does not exist. In a way this is a good thing, as it is just one more nail in the coffin of the healthcare system. Soon, the system will no longer be able to afford to do the plethora of “lawyer approved” (defensive) tests. (example… Medicare is going to require pre-authorizations for CT scans. So some government flunky will make the decision for us. Insurance companies have already figured this out.) So, I guess we will have to use our best judgement, and pray for legislation that most countries with a socialized medical system have. (Litigation rates in countries like Canada, Britain, Australia and New Zealand are only a fraction of here).

    It seems to be raining lawyers.

    • Dan says:

      I guess lawyers truly and sincerely believe that defensive medicine does not exist.

      They’re begging the question. (That is, “assuming the proposition.”) They make it impossible to recognize defensive medicine.

      • Matt says:

        Actually, people just want you to define defensive medicine. If a woman asks for a procedure that you don’t think she needs, and she’s willing to pay for it, that’s not defensive medicine. You’re not giving it to her to avoid litigation. Yet that’s the kind of thing you cite.

      • Dan says:

        just want you to define defensive medicine

        I don’t know you’ve missed it, but here’s one: “tests and procedures that do not improve patient health, but are done to defer lawsuits.”

        (I hadn’t included the woman paying for her own tests, BTW.)

        If you have to give 200 neck X-rays to find one serious head injury, you are actively worsening patient health. Lawyers don’t notice because — just like you don’t know cigarette gives you lung cancer — they don’t know which X-ray gives somebody cancer.

        Do you not see the perverse incentives here?

  38. stephen hawkyns says:

    I am an ER physician
    I practice defensive medicine
    I order lots of things at great expense and possible risk to the patient, just because I want to rule out a one in a million that MAY result in a lawsuit.

    I think that medicine as we know it is going to change, and not for the better. Unless litigation changes with the new health care rules coming, the lower pay, and higher taxes, most of the er docs I know will go and do something else. We are always asked to do more, with less, at great risk for being sued, and sometime soon, that back will break.

    Its like Shakespeare said, first, we must kill all the lawyers. then we can have a good healthcare system, at a reasonable price.

    if you are a lawyer, I am sorry, but I truly believe that you are an inherently evil being, who will be responsible for the breakdown and eventual ruin of our society. You contribute nothing, do nothing, and cause great expense and misery for others.

    sorry, its how I, and a lot of others feel.

    • Matt says:

      Yes, lawyers are evil. When they help a woman get a protective order, they’re evil. When they put a criminal behind bars, they’re evil. And when they defend the wrongly accused, they’re doing nothing for society. Oh yeah, and when they get a family that has been devastated by medical negligence of a physician the money they need to make the house payment, put food on the table, buy the kids’ clothes, etc all because some careless or drunk doctor ruined dad’s ability to work, they’re the spawn of the devil.

      Oh health care will change. You’re going to be a full time govt. employee, and we’ll have no fault compensation for medical injuries. Maybe you’ll even unionize like the airport screeners!

      But one question, doctor. Does your defensive medicine work? I mean, do you know if it actually does reduce your risk of litigation? If you have never studied the issue, why are you blaming your actions on everyone else. That’s great that a lot of you feel that way. A lot of people feel doctors are arrogant and overpaid. Doesn’t make it true.

  39. Doc99 says:

    Think defensive medicine doesn’t exist? Go to the doctors lounge on L&D in any OB unit in NY and ask why the C-Section rate has almost doubled in the last 20 years? Oh, and there are consequences. The Maternal Death rate rose for the first time in a decade. Coincidence?

  40. bwg says:

    As a patient I would expect the obvious to be ruled out first as the obvious is usually the (obvious) problem. If the obvious is not the cause but the problem still exists, then I expect the less obvious to be investigated next. If all that is ruled out then I expect you to look for the obscure.

    If I am in your emergency care then I also expect you to have an ongoing monitoring/evaluation system in place whereby you or your nurses look out for any other symptoms during routine rounds.

    I certainly do not expect you to be a mind reader. I am sure no-one gave you a crystal ball once you graduated from doctoring school!!!

  41. Matt says:

    “Go to the doctors lounge on L&D in any OB unit in NY and ask why the C-Section rate has almost doubled in the last 20 years?”

    Convenience of the physicians and the patients in many cases.

    ” The Maternal Death rate rose for the first time in a decade.”

    The C-section rate has been going up for awhile, so it probably was coincidence. You’re not a statistician.

  42. steve H says:

    Matt

    I am not doubting that some lawyers do good work. I just am saying that those who do ‘tort’ legislation do not. it is like comparing the very few drunk, negligent doctors to the group as a whole. they do cause problems, and I will say they should not be practicing, but this should be based on the opinions of their peers, not on what some nontrained nonpeer’ opinion happens to be. Just in our group there are very few who have such liabilities attached to them, while the vast majory do good, while in your group, the majority seem to be ‘evil’ tort mongering, product liability, class action ambulance chasers. Just as I would not try to defame the proffesion of medicine by pointing to a small minority of bad apples I would not try to bolster the legal proffesion by pointing to a small group of those that do good.

    You state some examples.. and I am not going to try and deny that these are good deeds.. but what about

    – the mcdonalds case. lets face it, coffee is hot. get over it.

    – california ‘good samaritan’ laws, recently overturned. somebody got sued for tryign to pull a coworker out of a colapsing building, and this was held as valid?

    I am not saying physicians who do bad should not be punished, even drummed out of the proffesions. but negligent, and unavidable are two completely different things that almost always get confused in the legal system. and worse, the system does not even afford us the basic right it guarantees to others, a jury of our peers. this is one thing when you are talking a criminal defense, but how can anybody make a case that medical negligence or lack of should be determined by people who have no background in a complex proffesion, and complicated ideas. Would you want your performance decided by people who do not know what it took to become a lawyer, the years of training,a nd the complexities of the system?

    Lets face it, lawyers do not care for the good of their client. in your hypotetical ‘put food on the table example’ how much would the typical cut of the lawyer be. fifty percent, sixty? by the time costs and fees are deducted. why not a system where these cases are looked at by a mixed tribunal of physicians and appointed lay people. damages based on reasonable and fair compensation, and not the jackpot most expect and which most ask for. lets pay the lawyer a per hour fee, and give them no financial stake in the resulting verdict, put the money back to the injured patient, where it belongs. No physician I know would object to ‘fair’ compensation, but verdicts of millions are now becoming commonplace, and the cost of insurance to belay that is crippling to the system. Want to know why a lot of specialists are hard to find? look no further than malpractice costs.

    If,a nd when, we become government employees, do not expect the same level of service you ge now. in most socialised systems, the needs of the group are prioritised over the want of the individual, and in most socialised systems, there is NO liability. it is like now, you cant sue a federally employed doctor. no matter what.

    Most americans are not willing to wait 2 days to se a doc in the er, a day to have a ct in the er, maybe two or three to get labs. have a bad galbladder, be prepared to wait a few months to years to have it operated on, because these services are limited. a bum hip, give it a few years to get on that wait list.

    Not to mention the number of physicians would decline. right now, there is a good percentage of docs who come here from overseas due to our better pay. socialised medicine? these guys are going to go home, where they will be paid about the same as here, with even less liability and jackpot claims. and forget about supplementing this with US grads. they dont go into primary care now as it is the least paid specialty, wait till the whole proffesion pays the same as a good IT job or a 9 to 5 in a investement office. no late nights, no call. we will be hurting for docs in just a few years, as those who can get out, will. almost all of us have other options should it come to that, we are just tryign to hang on and do the best we can for the people we see.

    the really sad thing mat, is that you will never see and understand this. your tinking is so narrow minded and focused that you leave no room for seeing what is happening, and for that I have great sorrow and pity for you.

  43. Matt says:

    Steve,

    Couple of notes. One, you’ve taken a couple of verdicts, which you clearly don’t even know the facts of (the Samaritan case did not involve a building at all) and decided to apply them to a group of people as a whole. The vast majority of whom will never represent a plaintiff in their life. They do wills, trusts, help companies close deals, are public defenders, prosecutors, real estate lawyers, etc. Just because you don’t know about them doesn’t mean they don’t exist. That’s like me condemning all physicians because of the one I know who tied a woman’s tubes without her consent because she didn’t think the woman needed to have more kids. You accuse me of not understanding a complex profession, yet your position is based on two cases you know little about!

    As for a system where we let physicians decide the value of a case, do we really need foxes guarding the henhouses? Why don’t we let insurance adjusters decide the cases where physicians sue health insurers for failing to reimburse? Sound like a good idea?

    You say we don’t have enough specialists – where? Rural areas where we’ve never had them because they can’t make as much money? And what kind of protection will it take to get them back? Cali has draconian tort reform – do they have all they need?

    You need to check your facts on these “good IT jobs or 9 to 5 in an investment office.” Citigroup has laid off tens of thousands. How many doctors are getting laid off. Physicians are in large part insulated from the economy, but I guess the grass always seems greener.

    Thanks for the sorrow and pity, but it’s not necessary. I see exactly what’s going on. Physicians have committed themselves to an unsustainable payment system, and are now faced with becoming govt. employees. Rather than work to reform that, they prefer to blame lawyers for their problems. If that continues and we get universal healthcare, it is you who will need the pity.

    Question for you though – if you were to get run down by a drunk truck driver, and ends up with a lifetime debilitating injury, who are you going to call to help you get the money it’s going to take for your family to survive? You think insurance companies just write big checks because they feel bad?

  44. stephen h says:

    Matt

    it is called disability insurance, to answer your last point, and no, I dont ascribe saintly morals to insurance companies. But lets examine the point of where the money goes. do you think suits would be nearly as common if lawyers worked for a per hourly, and had no financial stake in the verdict. for that matter, lets examine a verdict I know about, happened to one of my friends. 75 year old male, smoker 55+ years, diabetic and noncompliant with meds, comes in with 4 days of chest pain, diagnosed with an MI in the er, then becomes unstable, goes into vtach and after 30 minutes of resuss, done by the book dies.

    Family sues ER physician, family wins 10 MILLION dollar verdict!! where is the justice in that, the virtue. who decides this mans life is worth 10 million, where he basically delayed his care until the terminal event. that ER doc is now selling computers because he does not want to be part of that system again. This is not uncommon.. i bet the family saw les than half of that.

    the fact is, if you want quality physicians, just like anything else, you are going to have to pay for them,a nd give them a good work environment,. I have traveled overseas, lived with socialised medicine. you DONT get the best and brightest,a nd you DONT have the care we have here.

    I dont doubt it when you say we will become government employees, I just shudder to think that this is the system that my children will grow up in.

    Steve

  45. Dan says:

    If anything, we have too many specialists in this country. It’s one of the reasons our costs are way higher.

  46. Matt says:

    “it is called disability insurance, to answer your last point”

    That’s great that YOU have disability insurance, but even then the disability carrier may file the claim and pursue subrogation for their losses. The fact is though, that most people cannot afford disability coverage. And I bet your coverage doesn’t provide you to live in the way you do now. All this assumes the insurer doesn’t fight you over whether you’re disabled or not, of course.

    ” do you think suits would be nearly as common if lawyers worked for a per hourly, and had no financial stake in the verdict.”

    I assume you mean personal injury suits, since the vast, vast majority of lawsuits, which are filed by businesses, are paid on an hourly basis. And the answer to your question is no, they wouldn’t. Of course, then the rich would be the only ones who could afford to file suit. Again, assume your debilitating injury – how are you going to pay me $200/hr to sue that driver when you don’t even have earnings to pay your mortgage?

    “lets examine a verdict I know about,”

    Wait – what’s this mean – one you read all the evidence in or one you heard about from someone? There’s a difference, you know. Give me the name of the case, so I can look it up and confirm – any case with that large a verdict would have been appealed. But again, even if your understanding of the case is right on, that’s one verdict. Should we punish all doctors because one operates on the wrong knee? Determine that the way they practice is a blight on society based on that single case?

    As for how much the family saw – the fact is you don’t know, but you’ve formed strong opinions on it. That doesn’t make much sense. But even if you’re right, even if it’s a slam dunk case, how much do you think an insurance company, or the negligent doctor, was offering BEFORE the lawyer got involved? You deal with insurers, right? You know how they work.

    “I dont doubt it when you say we will become government employees, I just shudder to think that this is the system that my children will grow up in.”

    I agree. But given that physicians have the most at stake, why are they spending so much of your time demonizing lawyers on behalf of their liability carrier, instead of working on an overhaul of your payment method, which would have a much more direct effect on their quality of life and income?

  47. steve H says:

    Matt

    You have ansers for everything, and like most who are ignorant of the system, your answers are wrong. I have wasted too much of my valuable time already.

    I can only say, I hope that you or your family never have problems for one of the physicians who will soon be practicing in this country, as they likely will not be the highly skilled proffesionals we have now.

  48. Matt says:

    Steve, you should read closer – I agree with you on most things. I want you to have better hours and get paid more, or at least more accurately in terms of time v. pay.

    You can simply say that “I’m wrong” and believe it, but it doesn’t make it true. It’s sad that you don’t realize how much you have in common with the rest of society and how if you take the lead on changing your compensation system, the public will follow. As someone who appreciates the value of time, I know I will support you.

Leave a Reply


nine × = 81

Popular Authors

  • Greg Henry
  • Rick Bukata
  • Mark Plaster
  • Kevin Klauer
  • Jesse Pines
  • David Newman
  • Rich Levitan
  • Ghazala Sharieff
  • Nicholas Genes
  • Jeannette Wolfe
  • William Sullivan
  • Michael Silverman

Subscribe to EPM