The next part of this continuing series. A look at how defensive medicine hurts patients as well:
I am not a doctor, but a patient. But I thought I’d write to you about how my recent ectopic pregnancy has driven up the cost of treatment for every single patient at my IVF clinic, most of whom self-pay due to limited insurance coverage for infertility.Last fall, I had an IVF cycle, and 13 days past ovulation I had a Beta HCG pregnancy test. The result was 5.9. I was informed this essentially negative; that a chemical pregnancy had perhaps started but the number was far too low to be viable and most likely would resolve itself. I was instructed to wait 3 days and if I did not receive my period to return for another blood draw. Sure enough, I received my period within 2 days and thus did not go in for a second Beta.
Over a month later, a 9 week ectopic pregnancy was discovered that must have been the result of the IVF cycle (no sexual activity that month) but had gone undiscovered, with Beta HCG levels around 4800. I was treated with Methotrexate. Beta HCG levels dropped 20% within a week, but 8 days after the shot the ectopic ruptured. Within an hour I lost 2.5 liters of blood, and was saved by my IVF clinic’s doctors via an emergency salpingectomy and a blood transfusion.
I should mention that prior to this, I had several risk factors for ectopic pregnancy, including one prior ectopic pregnancy in 2003, in-utero DES exposure, previous abdominal surgery, and IVF.
My doctors were obviously quite concerned that they had not detected the ectopic earlier. By the extreme amount of attention and concern I received, I could tell they were worried I would sue. While I would never sue them – I did feel properly informed of the risks and besides that I owed them my very life – I was peturbed to later discover that in my chart’s operative report the attending physician wrote “patient chose Methotrexate shot in lieu of surgery, against advice” because this was totally not true. Prior to the rupture, another physician at the clinic (a fellow) accurately informed me of the risks of each course of action, and deliberately told me she was not supposed to make a recommendation, that it was up to me. But after I chose the shot, the IVF fellow told me she thought my decision was a good one.
Anyway, as the result of my case, my IVF clinic has instituted a new policy. Starting 13 days past ovulation, each patient must return every 2-3 days for a Beta HCG until levels are less than 1 or an intrauterine pregnancy is confirmed via ultrasound. This applies to all patients. These blood tests cost each patient $150 each; patients with normal pregnancies now must pay for 4 or 5 blood tests prior to confirming the pregnancy via ultrasound.
While I can understand instituting such a policy for women with multiple risk factors for ectopic pregnancy, such as myself, I feel very badly that my case has increased the cost of cycling by up to $600 for women who only have a 2-5% chance of having an ectopic.
Anyway, just wanted to sum up by pointing out that defensive medicine doesn’t always increase costs for the “system”, but directly increases the costs for other patients. But I do wonder how common it is for physicians to try to CYA by entering inaccurate information into medical charts. I adore my doctors and are so thankful to them, but my trust in them has eroded some as a result.
Defensive medicine is one of the leading factors in driving up health care costs today. The purpose of this series is to breathe some real-life examples into the numbers, and to provide some insight into how the threat of malpractice litigation pervades medical decision making.
Please e-mail me your stories of “how you practiced defensive medicine today”, and it will be posted anonymously as part of this continuing series.
Similar Posts:
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- Poll: How to control costs in end of life, or terminal, care
- How to better notify patients of their abnormal test results
- Is IV sedation being overused?
- Reader take: Moral hazard, and whether patients should consider cost in their health care decisions
{ 24 comments }
Why is this series not titled “I practiced BAD medicine today” and subtitled “because I am irrationally afraid of being sued”. I’m losing respect for physicians, in general, with each entry. Thankfully, anonymous, does express outrage, but where’s the outrage at the stress imaging in the previous case. Instead, anonymous (same or different) made a really nasty comment about my outrage at this stupid scene labeled “defensive medicine” when it really was just lazy, unethical, hypocritical, and bad.
“Defensive medicine is one of the leading factors in driving up health care costs today.”
What constitutes a “leading” factor? In states with tort reform, is health care cheaper?
Elliott,
I share your outrage – which is the whole point of this series. I agree that many physicians are practicing “bad” medicine because of (potentially irrational) malpractice fears. Sadly, many of the stories in the series happen on an everyday basis.
If we can bring to light enough of these stories, more can realize how the threat of malpractice litigation drives physicians towards “bad” or defensive medicine.
Thanks,
Kevin
Kevin, while you routinely discuss the “threat” of malpractice and all the proposed solutions, you rarely have any posts on the reality and the success or failure of these proposed solutions.
Perhaps the perception isn’t the reality?
Hi CJD and Elliot,
I don’t think I’m being particularly irrational in my fear. Let’s assume I’m terrific at what I do, never make mistakes, and my documentation is so good it gives the HIPAA folks wet dreams. I know that still, anyone can file a suit against me at anytime, regardless of merit. And, even when the suit is found to be completely groundless and is tossed from the court with prejudice, I know it will have cost me in time, terror, and money. BTW, I live in a tort reform state, and no, I don’t think anything is cheaper here.
I, thank all the gods, have yet to be named. But an friend was last year, and despite “full support” from the hospital, my friend ended up $20k+ in the hole (personally), on SSRIs, and pretty much a total mess. Oh, and the plaintiff had a well-documented history of severe substance abuse (on-going), litigiousness, and criminal behavior, including lying under oath. As an attorney friend told me, “the American judicial system strongly values the individual’s right to a day in court, no matter how insane they may happen to be.”
So, uh, yeah, I’m pretty afraid of getting sued. And, you’re right, fear-based decision-making is not the best.
I like the New Hampshire “review board” model, I’m curious to see how that works out.
And, as for practicing defensive medicine, I’m kind of surprised that Anonymous Patient’s fertility clinic accepted her as a patient in the first place, given her level of risk for ectopic pregnancy. I don’t know if that would happen in my area.
What fear is rational ? The fear of being sued was created by what happens in the real world. It is funny how outsiders give advice about being brave. How much do they pay in a year on insurances (car, house, business…) ? Why do they have to do that ? Just because that’s the only way we can keep pretending being civilized. We don’t really care about each other, but at least we don’t kill each other in trying to settle scores.
Elliot surpasses CJD in dullness, something I wouldn’t have thought possible for anyone.
That defensive medicine is bad medicine is the point. Doctors know it, and hate that they have to practice this way: that’s what they are complaining about.
When every doctor you know has either been sued, is currently going through the torture, or personally knows at least 10 other doctors who fit either category, there is nothing “irrational” about practising as if there were a gun pointed to the back of your head at every minute of the day. One slip… and it goes off.
When every single OB gyn and neurosurgeon can expect to get sued nearly three times in their careers on average, and nearly every other specialty is not far behind, there is absolutely nothing irrational in practising defensive medicine. It’s simply self-preservation.
Darcy is absolutely right:
I know that still, anyone can file a suit against me at anytime, regardless of merit. And, even when the suit is found to be completely groundless and is tossed from the court with prejudice, I know it will have cost me in time, terror, and money.
To the anonymous patient,
If you’re reading this, what that doctor did is absolutely ****ty. It’s wrong, and you shpould talk to them about it.
To be fair, it may be that it was a mistake. Was the doctor who wrote the note the same fellow who spoke to you? If it wasn’t he may have given instructions to the fellow to talk to you, and there may have been a miscommunication when the fellow reported back. This is very easy to happen.
The funny thing about it is that this was precisely the stupidest thing he could do (if it wasnt an honest mistake). The way you tell it, there was nothing that they did wrong, and if you decided to sue despite your having given informed consent and made your own choices, it is likely that they (eventually) would have prevailed.
But now, this silliness changes everything.
To the patient: I thank you for being honest and reasonable, and I hope that you continue to do well. If that entry in your record is accurately described, it is something that you should challenge and have corrected. It is possible that the doc who wrote that is a serial fabricator and only by being exposed can other patients and his colleagues and the clinic be protected from his lies.
Please consider an alternate explanation: at least one of the docs you saw during your terrifying experience did actually recommend surgery and you had made up your mind to go the MTX route. I don’t know if you received any sedative medications, some of which are intended to induce amnesia for unpleasant experiences (Versed/midazolam is a common one, but there are others in this class). Even in the abscence of sedatives, the typical patient in an urgent lifethreatening situation such as yours gets a tremendous amount of new and frightening information thrown at her in a short period of time, and it has been shown in studies that patients remember at most a third of what they are told under such circumstances. Every day I counsel patients about the details of upcoming surgery. I usually have some written material to give to the patient to reinforce what I tell them, but it is very common for them to call back or return to the office to ask questions that I have gone over in detail, provided in written form, and documented in my notes. I’m not accusing you of not paying attention, or not doing the right thing. I’m saying that you are human and reacted to a stressful situation in a human way.
Another reason for you to investigate further: It is possible that the fellow who counselled you was being less than truthful when she reported back to the attending how she had counselled you. There are often differences of opinion concerning the best way to proceed in a given situation. The attending may have told the fellow that you really would do better with surgery, but the fellow disagreed but tried to make it look like your decision rather than seem to be defying her superior.
It’s possible the the attending is a lying weasel, and if so he should be called on it. It’s also possible that something else is going on.
Hello – I am the patient who sent in the story. In re-reading it, I can see that I forgot some key pieces of information.
My ectopic pregnancy was discovered 5 weeks after a “negative” pregnancy test. At that time, I hadn’t ruptured yet and felt fine. I was given the choice to do a shot of Methotrexate or to have a non-emergency salpingectomy. I was informed thoroughly of the pros, cons, and risks for each course of action.
I chose the shot, but one week later I ruptured anyway (which was something they earlier warned me had a 5%-15% chance of happening). I have no objection to any of this. They warned me of the risks and I accepted them. I don’t think there was any reason for them to write that they recommended I have surgery in my record, but that’s what they did. This conversation took place over a week before the emergency surgery. I took notes and my husband was present, so I know that I am not suffering from amnesia on this one.
The thing they were worried about was that they did not detect the pregnancy until it was nearly 9 weeks along, despite a slightly positive pregnancy test 4.5 weeks earlier. Again, I do not fault them for this. I am sure that an overwhelming percentage of women who receive their period after a 5.9 HCG are really not pregnant. In my case, however, I was. And they were worried that I would sue them for not detecting it.
I am ticked off about the mis-information in my record. One “honest” explanation could be miscommunication between the fellowship doc, who gave me the “risks” talk, and the attending, whose name is on the post-op report that was published a week after the “risks talk”. I hope that is the explanation. But I do think there was some CYA going on.
Hope this clears things up.
One more comment from the patient, in response to Dr. Darcy.
You said “I’m kind of surprised that Anonymous Patient’s fertility clinic accepted her as a patient in the first place, given her level of risk for ectopic pregnancy.”
There are 7 IVF clinics in my area and none of them had any issue accepting me as a patient based on my ectopic risk level. They all said that they would monitor me closely to ensure that any ectopics were caught early, which unfortunately did not happen for me.
Even after this incident, my clinic was willing to proceed with another IVF cycle with my remaining tube, even though with two previous ectopics my chance of a third was about 50%. Instead, I took the other option they presented: I had both tubes completely removed and will be doing another IVF cycle next month.
Hi Anonymous Patient,
Thank you for sharing your story- I appreciate hearing about your experience. I agree with you that someone likely freaked out at your clinic and “revised” your chart, and there likely was a CYA factor, which is a travesty. I would toss out the slim (and not really any more reassuring) possibility that the fellow was actually thinking of a different patient when charting for you. I’m happy for you you’re able to get the care you need where you are, I’m not sure if that’s the case everywhere. I don’t know much about the business of IVF clinics, it’s not what I do, but I do have some friends who have done IVF themselves and shared their experiences. Best of luck with your next cycle- I hope everything goes well for you and your family!
“BTW, I live in a tort reform state, and no, I don’t think anything is cheaper here. “
Then Dr. Darcy, don’t you think there has to be a better way than limiting the rights of the legitimate victims of malpractice? Perhaps more time spent investigating the actual causes of malpractice? On revamping the delivery of your services to create a better relationship with the patient?
Then Dr. Darcy, don’t you think there has to be a better way than limiting the rights of the legitimate victims of malpractice? Perhaps more time spent investigating the actual causes of malpractice? On revamping the delivery of your services to create a better relationship with the patient?
Perhaps curtailing the predatory practices of your fellow lawyers who rarely file cases with real merit? Even the relative few that result in any payment to the plaintiff often have no merit but are settled to keep the defense costs down. We need a “loser pays” system like every other civilized country in the world.
Hi CJD,
As always, a pleasure. I’d agree that error rates for many medical specialities have been too low and too stable for too long. I agree that this is a serious problem, and that the healthcare professions have not done enough to change it. I do not agree that medmal suits have done anything to improve this state of affairs, nor will they ever, no matter how big (or small) the judgments.
So why do I support tort reform?
Purely selfish reasons.
Your medmal colleagues, CJD, are the Thing That Goes Bump In The Night for me. The professional equivalent of shingles, or genital herpes … I know it’s not going to kill me, but boy do I hope I never have personal experience …
If I know that most docs get sued at least once (most being more than 50%), and if I cannot find a *single* colleague who has a story like … “so, yeah, I got sued, but, you know, it was kind of interesting and not really that bad …” well, my amygdala doesn’t like that so much.
So, I think you’re right- tort reform won’t “fix the system.”
I also think people are scared, for good reason, and fear leads to poor judgment (even in smart, well-trained people) and sometimes to very stupid behavior, as possibly demonstrated by this week’s story.
And, caps on non-economic damages do seem to make it less likely that someone with a weak case is going to be able to talk an atty into taking a case on contingency. Maybe I’m wrong. But I do feel safer. Superstitious behavior on my part? Perhaps. I guess we’ll see.
A question for you … why is so hard to take a *legal* malpractice case forward? We had a real whack-job atty in our area, messed up cases for about 6 of my patients alone … none of them could find any legal remedy for that particular problem. What’s up here?
whoops, that would be “error rates have been too high” (okay, maybe I don’t agree with that statement all that much, but I’ll give CJD the point … any error rates, medical *or* legal … are best reduced)
“Medmal lawyers are the professional equivalent of genital herpes – it won’t kill you, but you sure don’t want them on you.”
lol – how true.
“If I know that most docs get sued at least once (most being more than 50%)”
Darcy, what’s your source for this figure. I’m almost certain it’s wrong.
“And, caps on non-economic damages do seem to make it less likely that someone with a weak case is going to be able to talk an atty into taking a case on contingency. Maybe I’m wrong. But I do feel safer. Superstitious behavior on my part? Perhaps. I guess we’ll see.”
Indeed, I believe we will. You’re in a state with tort reform – which one is it? If it’s one that has had it for a long time, we should be able to determine the effetiveness.
You know, you say that lawyers are the thing that goes bump in the night for you, but if someone in your family were the victim of medical malpractice, who would you turn to? If, as is usual, the physician stonewalled and that person was looking at mountains of medical bills and years of care, where would you go for assistance?
It seems that many physicians can’t contemplate ever needing a lawyer. Do you really believe you’ll never be in a car wreck? Never be cheated on a contract? Never have any of the things that people come to see lawyers for happen to you? If you make it harder for you to recover, how does that help you? And if it doesn’t help you, who does it help?
Hi CJD,
Okay, the 50% cite is this paper (Med Econ. 1988;65:38-41.) I was disappointed that it was older data, so I tried to find some newer data.
This is an interesting paper looking at medical complaints in speciality and surgical practices, (Hickson et al JAMA. 2002;287:2951-2957), this looks at pediatric cases that were filed and settled (Pediatr Emerg Care. 2005 Mar;21(3):165-9.) Both note that physician “niceness” (good communication, time spent with pt/family, etc) is a major predictor in not getting sued. The peds one notes that the majority of the sued docs had been sued before, that the majority of the claims involved more than one defendant, 93% of cases settled, and that “many claims were frivolous.” Unfortunately, neither paper was able to truly address the question at hand: the lifetime risk of suit for any given physician. So, over the last twenty years, perhaps it’s stayed the same. For the sake of argument, let’s say it’s dropped to 1:3, 1:4, or 1:10.
Sorry, even if it’s 1:10, I still remain frightened of getting frivolously sued by someone who didn’t think I was nice enough.
And, sorry, but I remain more frightened of the financial/social/personal costs involved in being a defendant in a medmal lawsuit, than of my “right” ask for huge damages being impinged.
Lawsuits are a tool.
I don’t think lawsuits are a good tool for modifying the behavior of groups of professionals. I don’t think there’s any evidence medmal lawsuits have made medicine (as a whole) safer.
You may disagree, I’d be happy to see your argument.
And, I’ll ask again … if lawsuits are such a great tool for modifying professional behavior, why aren’t more attys suing other attys for legal malpractice?
Darcy, I can’t open that link. But I would be that, except for certain specialties, the chance of being sued or having to pay a claim is less than 10%. Especially given the number of physicians with multiple claims. I can’t find a solid source either. The insurers have that info, but they don’t appear to have released it. But since you don’t know that, how do you justify your fear? Builders get sued all the time, do they live in desperate fear of lawsuits? So do truck drivers?
What’s the point of having insurance if they won’t stand by you when you are accused of harming someone? What do you pay those premiums for?
I agree with you, I don’t think lawsuits are a good deterrent for modifying the actions of a professional. To me, that’s always been the weakest argument, since 9 times out of 10, the issue is straight negligence when we’re talking about an individual physician. I believe the goal is compensating the injured party for the harm when that harm is the result of another’s negligence.
Of course, many tort reform proposals apply to all providers, and I think the threat of punitive damages serves a valuable function when dealing with companies.
As to legal malpractice, there are a number of attorneys out there who practice in this area. But there just aren’t a lot of statistics out there on the issue so I can’t tell you much about it. I’m sure the insurers have the details, though, as they are the ones betting on the risk.
Curious JD,
How many doctors does it take before you consider the idea that there may be a problem? Seriously no matter how many times people bring up these points you swat them away no busy with your own points to truely listen to others. Isn’t it worth relly looking at what the doctors are saying and not deciding that you’re right even if everyone else says your wrong. you may still be right but an open mind does not seem to be your strong point.
Sixwings,
I have no doubt that doctors are scared. And I appreciate what they are saying. I have no doubt that they are getting squeezed. That’s the problem.
But the facts just aren’t there to back up many of their claims about how medical malpractice works. And more importantly, their proposed solutions to their perceived problems don’t solve them. And I’m not talking about the solutions idly discussed here, I’m talking about the ones that actually are being seriously discussed in the legislature.
I jumped in on the tail end of #5 so I dont think my story of getting sued, wrongly I think, and settling for a large amount of money to avoid the possiblity of a multimillion decision, was read. After this case, I found that I was thinking about every patient I saw, not in terms of what was the best thing to do medically, but what would sound best to a lay jury in court. I realized that I was making poor decisions and stopped delivering babies at all. Ironically, I ran into the lawyer who sued me, at a social gathering some time later and he said to me, “No hard feeling, I hope, it is just business.” I suggested that he kiss my ass. It wasnt business, it was my life. I defined myself in the care and concern I have for my patients and lived daily with the knowlege and responsibility that their lives and the lives of their children were in my hands. To be called incompetant and callous and told that I caused the crippling of a child was more than I could live and work with. Someone else can do the deliveries. There was a case I heard about, hearsay only, I confess, from Georgia. A group was sued and lost. The next year the lawyer who had done the suing was pregnant and the only ob nearby was the sued (sp?) doctor. When she showed up int the office for prenatal care, he told the lawyer that he could not imagine her consulting with a physician that she had called incompetant in open court and told her to go up to Savannah where there were some good doctors.
I believe that a valuable reform would be a combination of a cap on non-economic damages (to be determined by wiser heads than I) as well as provisions in a med-mal policy that binds the insurer to fight suits in court if the doc requests it. Trial costs may raise premiums for a shour period of time, but I believe that the long term impact would be a reduction of frivolous filings. The thought behind this is that the predatory attorneys look for a quick settlement, while legitimate med-mal barristers would be willing to “go to the mat” with their client. We do need med-mal attorneys, but we also need to curb the predatory nature of certain firms. /2cents
Matt
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