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.