Sticking to the evidence. Easier said than done:

The question is never ‘Doctor, how little can you do to treat my illness effectively?’ And the answer is never, ‘Let’s wait a while.’ Instead, it’s a quick rush to the imaging room, to the surgical suite, or to the pharmacy downstairs. The costs are clear to us all: a $1.7 trillion annual health-care tab that is growing again, and as fast as ever. Today, millions of Americans are getting more and more care whose value is not clear, because it’s not based on scientific evidence. With costs steadily rising, we need to ask: When it comes to health care, is more always better?

Of course, the solution is so simple:

That means following objective, evidence-based treatment guidelines. Such guidelines do not exist for every condition, but wherever they do, it is imperative that they be followed to the letter. And sometimes that means not doing. Or doing less rather than more. Medical restraint, however, is a bitter pill — doctors don’t go to medical school to learn what not to do, and to a sick patient, “might as well give it a try” is practically a mantra.

Bad outcomes still occur despite following evidence-based guidelines. Doctors are still sued despite following the guidelines. Yes, doctors win the majority of cases that are brought to court, but it is the mere threat of the lawsuit that leads to defensive medicine and overtesting. Whether that’s right or not, it’s reality.

Ms. O’Kane and the NCQA are laughably naive. Try again folks.


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  • Elliott

    Defensive medicine has no proven benefit to reduce malpractice risk (and arguably increases risk) and increases risk. A reduction in bad outcomes has a proven benefit in reducing malpractice risks and improves health. I’m at a loss to understand why Kevin argues for the “reality” of the physician’s viewpoint in wasting resources and the naivite of someone who argues for EBM.

    Maybe Kevin should start practicing astrology and/or homeopathic medicine since these “sciences” depend on people believing in them even in the absence of any proof of benefit.

  • Kevin

    I agree with your point that defensive medicine has no proven benefit. Malpractice or otherwise.

    I am merely stating the reality of the situation. With all due respect, as a practicing physician, I think I’m in a better situation to observe the rampant view that more tests = lawsuit protection.

    You may not agree, nor like, this reality of defensive medicine – I don’t either – but that doesn’t change the fact that many physicians feel the same way.

    Right or wrong, you can’t solve the problem if you don’t at least acknowledge the physicians’ viewpoint.


  • a patient

    “Doctor, how little can you do to treat my illness effectively?’ And the answer is never, ‘Let’s wait a while”

    That’s just flat not true. Although I preface those two little phrases with “What are my options” and frequently end with “what would you reccommnend”
    I frequently ask for the most conservative options and often ask the relative risks and rewards of waiting a while, before an invasive procedure or starting meds.

    And then I google up behind your * to make sure I have been given complete advice.

  • Elliott


    I acknowledge the physician’s point of view, but I am at a loss of how to address it. The faith-based arguments that physician’s bring to this discussion are impossible to counter. I don’t try to argue with religious zealots and I won’t try to argue with tort reformers.

    The reason I spend so much time on this site criticizing yours and others belief in tort reform as a valid approach to healthcare reform is that I see it as detracting from the real issues; I hope that the lurkers consider my points. I would gladly engage in a trade where tort reform was on the table against universal healthcare, more aggressive physician regulation, and cost control, but that’s not how the argument goes. The physicians want tort reform and promise that we’ll get the rest when there is absolutely no evidence that this is true. In fact, the selfish, irrational nature of much of the discussion on this site, looks to me to be evidence to the contrary of any benefit to tort reform for anyone other than the insurance companies and their clients.

  • MedSleuth

    In the end, unfortunately, it is the patients that suffer. When a physician overtreats with tests or even medications that may not be necessary, or may even have undesirable adverse effects worse than the original problem simply because of fear of litigation, it is the patient who pays the price in the long run.

    Further, patients are more demanding than ever and when they walk into a doctor’s office they want that prescription, they want that expensive test, they want action.

    Sometimes the best action is no action at all (tincture of time), but will patients really accept that from their physicians? I doubt it. Will physicians employ watchful waiting — not with fear of litigation hanging over their heads.

  • Anonymous

    1. Another problem with ‘doing more’ is that it may scare some rare patients from going to the doctor when they really should. A rare patient who doesn’t like tests or has no time may think: “I have such-and-such symptoms, but they are not devilitating and if I go to the doctor, there’ll be no end to an unpleasant and time-consuming testing, and I don’t have either time or desire for this, so I’ll wait and see”. But in some cases this is a risky choice to make. Of course, from the doctor’s standpoint this is no problem because he/she cannot be suied for patients who don’t complain.
    Or you go to the doctor and refuse a test that appears to be defensive, and then keep wondering and worrying “did I do the right thing?”

    I wonder if a patient can simply ask a doctor “are you ordering this test/suggest this treatment for defensive purposes?” and expect an honest answer. Or ask “if you were in my place what would you do” and again expect an honest and non-defensive answer. Would a doctor giving an honest answer to either of these questions be liable? Maybe the better question to ask “what do you suspect, what is the probability I have it, what is the evidence/guidelines behind this course of action?”

    2. I have to say though that “doing more” is not always based on defensive reasons but on doctors’ desire to do something when they really don’t know what to do. Sometimes it is an honest desire to help and sometimes it is a reluctance to admit one’s ignorance.

    Over 20 years ago and in another country (where lawsuits were impossible even in cases of egregeous negligence, and the doctors didn’t make much money anyway) my then-teenage cousin had a weird condition – her fever would be constantly high, around 38C and often spiked to over 40C for no reason. The doctors couldn’t figure out what was wrong with her — they said the her body coudn’t regulate temperature, but couldn’t find the cause. I don’t think anybody knows to this day. She got somewhat better once she got to college, now that she is middle-aged it is only slightly elevated for most of the time. Anyway, instead of honestly saying “we don’t know what to do with you, we’ve never seen anything like it” which was clearly the case, they prescribed prednisone which didn’t do a thing for her but caused her to gain a lot of weight that working as a scientist at a sedentary job she’d never lost.
    It was clearly not the fear of malpractice that drove my cousin’s doctors “to do something”. So I am not sure if the malpractice is always to blame. BTW, if anyone has an idea what was wrong with my cousin, I’d be curious to know. It is just plain curiousity since the whole thing is largely in the past.

  • dr john

    You say “defensive medicine has no proven benefit to reduce malpractice risk”, but realworld experience dictates otherwise.
    When Senator “Neckbrace” Edwards made his millions in cerebral palsy cases, he charged OBs with not performing enough C-Sections. By now everyone knows that the C-Section rate quadrupled, with no beneficial effect on the cerebral palsy rate. (No, Edwards didn’t give back his fraudulent gains.)
    Undoubtedly some of these OBs were sued for surgical complications from their defensive C-Sections, but not for the multimillions involved in cerebral plasy cases.

  • Anonymous

    As I have stated before only an idiot would claim that defensive medicine doesn’t help lower lawsuit risk because it has not been “proven”. It is impossible for anyone other than the referring doctor to know why he ordered the test. You can’t prove the unproveable but anyone who actually practices medicine knows that defensive medicine lowers risk of subsequent ambulance-chasing behavior.

  • Elliott


    I’m supposed to give credence to Dr. John who makes a ridiculous argument about Senator Edwards based purely on emotion with no facts or an anonymous person who calls me an idiot because I prefer to rely on the scientific method rather than his unsupported contention.

    You’re one of the more reasonable doctors on this subject and even you veer off into spin and hyperbole all too often.

  • Anonymous

    “When Senator “Neckbrace” Edwards made his millions in cerebral palsy cases, he charged OBs with not performing enough C-Sections. By now everyone knows that the C-Section rate quadrupled, with no beneficial effect on the cerebral palsy rate. (No, Edwards didn’t give back his fraudulent gains.)”

    Can you please provide the case names of Mr. Edwards’ cases that you reviewed the medical records in? Surely you wouldn’t make the accusation that there was not malpractice involved if you hadn’t actually reviewed the records would you?

  • Anonymous

    “You can’t prove the unproveable but anyone who actually practices medicine knows that defensive medicine lowers risk of subsequent ambulance-chasing behavior. “

    In other words, the only way to verify what I am saying is true is by believing what I say.

  • Anonymous

    “Defensive medicine has no proven benefit to reduce malpractice risk”

    As a practicing physician, I know that in certain situations regardless of what I do, I may get sued. But I know that if I have all these tests, referrals,and documentation, my chance of winning that case is better.
    In the event that I get sued on a case, I can prove that I have done everything to prevent a bad outcome. I have been sued 3 times this past 20 years and all these cases against me were dismissed after depositions.Yes,I practice defensive medicine but only on a selective basis. There are red flags out there that tell me when to practice it. I weigh the risks and benefits and potential harm. It is an art and one only gets better with time. I know I will be sued again (it’s been 15 years since the last lawsuit) and I’m still making sure that my fortress is well defended.

  • dr john

    The documentation of the cerebral palsy cases litigated by “Senator Neckbrace” is in the public record, thanks to some great investigative reporting in the Wall St. Journal, published around the ’04 elections.
    Look it up.
    The WSJ’s reporting on Edward’s shameless litigation career probably explains his otherwise surprisingly low profile in the late stages of the last election.

  • Anonymous

    Dear Cousin of relapsing fever woman,

    There are several disease that can cause fever to come and go without killing you. Familial Mediterranean Fever and Still’s disease come to mind. Without knowing anything else about your case, I might recommend she see a local internist. Clearly, it would be best to see one when she has a fever. (not always possible). Best of luck,
    Bruce Hough, MD

  • Anonymous

    From cousin of relapsing fever woman…
    Dear Dr Bruce, thank you. I’ll look up these conditions because I’ve always been curious what ailed my then-15 older cousin. I tried to find something on the internet and couldn’t.

    The woman in question did visit lots of doctors in that (Eastern European) country when the fever was a problem (this was chronic by the way with the worst time lasting several years: she’s been so used to it that she almost felt normal when the fever was at 38C; she passed her entrance college exam with 40C). Now it is not much of an issue; besides I have very little contact with her; usually only when I visit, and that only happens once every few years. So my interest is indeed purely academic. Thank you, though and sorry for being off-topic.

  • Anonymous

    Great reference for anyone forced to argue with a lawyer:

  • Anonymous

    “The documentation of the cerebral palsy cases litigated by “Senator Neckbrace” is in the public record, thanks to some great investigative reporting in the Wall St. Journal, published around the ’04 elections.
    Look it up.”

    Link it. Because I get the WSJ every day and read it, and I don’t recall any articles which discussed the medical records in his cases. I’m willing to bet you can’t even give the family name in any of his CP cases.

    Incidentally, his biggest case was representing a girl, Valerie Lakey, who had her intestines sucked through her rectum by a faulty public pool drain. Google her name and you’ll find lots of articles. But I know with your aversion to litigation, you wouldn’t hire a lawyer like John Edwards to handle that kind of case, would you. You’re smart enough to handle it on your own, eh?

  • Anonymous

    At a minimum, as an ER Doc, if I order alot of defensive tests and Consults, and admit everyone, I’ll still get sued by a certain percentage of my patients. But at least I won’t be “Going Down Alone”. There will be others on the defendants’ stand, and I may even be exonerated while the poor schmuck I admitted the patient to gets thrown under the Bus.

  • Anonymous

    I suggest you read the below reference:

    The American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP) have issued a report examining the possible causes of infant brain damage. “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology” is available online at or by calling ACOG at 800-762-2264, ext. 277 (ask for item AA432).

    A quote:
    “According to the report, the majority of newborn brain injury cases do not occur during labor and delivery. Rather, most instances of neonatal encephalopathy and cerebral palsy are attributable to events occurring before labor begins.”

  • dr john

    Cerebral palsy cases are so lucrative because the lawsuit industry determines the yearly damages, multiplied by the expected lifespan. $500,000 per year becomes $35m or so, up front, with the lawyers’ take 40%.
    All you need to know is this: If the baby died during childbirth the case was worth less than $1m, AND EDWARDS WOULDN’T TAKE THE CASE.

  • Elliott

    I really need some proof of that claim, Dr. John. It sounds false to me and I doubt you can back it up.

  • Anonymous

    Again Mr. Elliot I refer you to the ACOG/AAP 2003 report above.

  • Anonymous

    Everyone knows a disfigured baby with a feeding tube is 50 times more valuable then a dead baby. Edwards never defended dead babies, not even his own.

  • Anonymous

    “Defensive medicine has no proven benefit to reduce malpractice risk (and arguably increases risk)”

    A clinic in Boston, where I work, sends in every single child they see with abdominal pain to my ER to “rule out Appendicitis. Even if the pain is near the kids nipples. How does this “defensive medicine increase risk? (other than the fact that we spend so much time practicing defensive medicine that we end up missing things on sick patients cause it’s so damn busy.)

  • Anonymous

    “Again Mr. Elliot I refer you to the ACOG/AAP 2003 report above.”

    That report makes no comment on Mr. Edwards’ specific cases. Try again.

    Unless you think it says that CP can never be caused by malpractice. In which case, you’ve read it wrong.


  • Elliott

    The ACOG report is interesting, but it says nothing about a particular case. For example, total US deaths from all causes in any given year is between 2 – 3 million. Murder represents less than 1% of the total. Suicide is twice that at about 1 1/2% of the total. It’s not likely to be a good defense in a murder trial to argue that statistically, the death of the victim was unlikely to be the responsibility of the defendant given the numbers I quoted. Without knowing the specifics of the case, arguments referencing the ACOG report are similarly unenlightening. For the record, I imagine that given the new science, that Edwards would still have won some of his cases and may have lost some that he won. (That’s just 100% speculation on my part since I know no specific medical information from any of his cases.) I don’t know how that changes the fact that medical malpractice tort reform is a wasteful (and dishonest) way to achieve physicians stated desires as opposed to a concerted effort to obtain better outcomes.

    Dr. John apparently doesn’t have a specific reference for his libelous statement. Dr. John appears to have a personal issue with Senator Edwards which causes him to make all types of claims. Of course, Kevin thinks I should consider his pov before calling him a liar.

  • Elliott

    “Of course, Kevin thinks I should consider his pov before calling him a liar.” The antecedent for “him” in the above is meant to be Dr. John and not Kevin. Sorry if there was any confusion.

  • Stephanie

    This comment thread has deteriorated into bickering with an apparent personal-injury lawyer. Not worth the effort….back to the original post:

    I’m a practicing surgeon, and fan of the movement toward consumer-driven health plans. How much of the runup to $1.7T/year was fueled by defensive medicine that was possible because “insurance will cover it”?

    In the near future, I don’t think patients will allow us that extra consult or test “just to be sure”, because they’ll have to pay more than their $10 co-pay for it.

    Has anyone faced this yet with their patients? How about respecting the wallets of uninsured patients?

  • Anonymous

    Your analogy makes no sense. Why would any prosecutor make such an argument? No he/she uses the evidence gathered including molecular techniques (DNA fingerprinting) to make such an argument. The fact is the evidence we have (and remember we are now talking science NOT LAW) does not support a direct coorelation between cerebral palsy and birth injuries. Remember I am not talking about defending an individual case of a botched delivery anymore than I would defend removing an incorrect body part or missing an ST elevation MI. The scientific evidence does not support the cerebral palsy/birth injury argument. Just like the scientific evidence DOES show a direct coorelation between mesothiolioma and asbestos. I wish you would you the scinetific evidence that supports (or not) your arguments.

    CJD: Did you read the 2003 paper or are you just spouting off again. Having a responsible discussion with you is pointless as your main reason for being on this website is to leave the system the way it is (presumably for you own financial reasons). Nevermind that the majority of people truly injured by malpractice are never compensated in the first place and the majority of the suits that are brought to trial are decided in favor of the doctors. There are better systems out there in the world (ie the swedish system). But that would cut you totally out of the process.

    Stephanie: I agree. I just get very tired of trial attorney’s ignoring the scientific evidence.

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