in Uncategorized | 87 responses

Is it time to step up the defense?

The tabloid Boston Herald writes a lawyer-friendly medical malpractice piece, showing conscientious plaintiff lawyers busy diagnosing cancer that radiologists have missed:

The article implies that doctors are clearly not achieving the 100% accuracy rates that lawyers and patients are demanding:

Doctors in the medical mecca of Boston are missing cancer diagnoses at a troubling rate, lawyers for both patients and doctors charge, and more critically ill patients and their families are lining up at state courts to press claims.
“We have some of the best hospitals in the world and some of the very best are making some of the very worst of mistakes,” said Boston malpractice attorney Robert C. Gabler. “It is undeniable that there is more failure to diagnose going on.”

Failure-to-diagnose represents 1/3 of all malpractice claims. Think of the malpractice savings if doctors just endoscoped, CT’ed, MRI’ed, PET scanned, and catheterized every complaint.

Many doctors are already doing this – and are thankful they are, proud that they are practicing defensive medicine. From a physician standpoint, the benefits of overtesting greatly outweighs the consequences.

Comments

Anonymous
See both sides here – I’ve refused scopes that were indicated by CYA standards, but which lab results and personal history indicated tincture of time and a change of meds was probably going to be sufficient to correct. (They were).
However, my father-in-law perished when his colon cancer went undiagnosed until it was well past too late to treat with anything but palliative measures. He got regular physicals at the behest of my MIL. His internist failed over a period of ten years to order a routine colonoscopy screening despite FIL’s age, additional risk factors (family history, lifestyle, and previous history of colon polyps (known to the internist), and instead of testing suggested diet change when symptoms began that should have immediately triggered a scope, and later still misdiagnosed a palpable rectal mass as an enlarged prostate.
Medical review by plural GI specialists was unanimous the internist failed to meet the standard of care – by a mile.
Anonymous
What kind of defensive medicine would you suggest to keep spatulas out of patients?
Anonymous
This guy looking at the xray has to be a lawyer. The chest film is upside down. He can still be a doctor, though.
Anonymous
Look at his eyes. His looking at the abdomen part of the chest film and that part is just all white.
He has to be a lawyer.
Anonymous
Lot of jumps in logic to reach your conclusions, Kevin. I wonder if you linked the wrong article, because this one doesn’t remotely support some of your personal interpretations.
By the way, what “lawyers for doctors” are claiming that diagnoses are being missed at an alarming rate?
Anonymous
Is there even one Doctor among the bunch of you who care anything at all about making ill people well?
It is revolting how you guys view and treat your patients. As soon as the rest of the world figures out that their Drs. couldn’t care less about them, yes, there will be many more lawsuits. Some of you are quite young and early in your profession, how in the world are you going to handle the stress(that you create for yourselves) over a 30-40 yr. period?
If I was so cynical about my profession I would maybe find a new one.
Anonymous
Doctor, Lawyer or whoever, he is posing for a picture, so what?
Does that mean when my Drs. have turned my X-Rays all different positions, to look closely at something, he must be a Lawyer in drag?
Anonymous
I hope the above whiner is right. What the system needs is alot more lawsuits, an epidemic of them like has never been seen before, just in time for the Avian Flu to show up and effect 20% of the US population and kill 5%. That’s 15 Million Deaths for those keeping score at home. I would much rather be tied up in court having some moron tell me what a moron I am then stuck in the hospital where I can pick up avian flu. Payout a few billion dollars to the sodomite lawyers at the same time and the whole system completely collapses. This country deserves that.
Anonymous
“It is revolting how you guys view and treat your patients.”
Not as revolting as how some patients view their physicians as sources of free care, aka free phone calls, not wanting to pay co-pays, and the like. Not as revolting as patients who don’t follow their advised medical care, but yet sue us because the bad outcome is our fault.
“how in the world are you going to handle the stress(that you create for yourselves)”
We’re not lawyers.
Anonymous
Careful Doc…you might give yourself a sore muscle from all that self-inflicted back patting you got going on.”YOU” are not that important, that the entire medical world is going to fold just because you spend a week in a court room…
Now, if it were to be the majority of the physicians in the world, the ones not yet inflicted by your poison, it might effect us greatly but not YOU personally! The medical community would be so much better without you and your type in it..There is no place in medicine for Physicians who despise patients. You prove over and over what type Dr. you are.
Anonymous
“You prove over and over what type Dr. you are.”
You can tell how good a doc aperson by how the person writes in a medical Blog? You must be a great evaluator of people. Maybe an insurance adjuster? Are you aware that every anonymous on this site could be a different person, but you can evaluate all of them as one person by how they write?
SarahW
A doctor who writes like Anonymous 7:19, if he is indeed a doctor, is not someone I’d want representing my profession…. and I sure as hell hope he is in some courtroom if I ever darken the door of his ER.
Anonymous
keep practicing defensive medicine..then the patients above can’t hurt us monetarily, but we can keep hurting them with unnecessary tests, prolongation of terminal illness, etc… I would take a berating in a courtroom to that anyday…
Anonymous
“you can’t tell how good a doc a guy is by how he writes a medical blog”
trust us, we know all about this clown..He refers to patients regularly as “sodomites”, “jerks”, “a crazy person like you”, “sobs”, “idiots”, “jackasses”, Hell, he even wished someone dead on here the other day, all because that guy had the nerve to contradict him.
I would rather die than be in his ER..AND I MEAN THAT!!!But, I would love to sit across the aisle in court from him and I’ve never sued anyone in my life.
Anonymous
I am not a huge fan of screening, I realize that it has benefits and risks and that early diagnosis often doesn’t make a difference. I also understand that delay in diagnosis by itself doesn’t necessarily mean malpractice. I also realize that just because something is visible or clear in hindsight doesn’t mean it could’ve been noticed sooner.
But a couple of the examples given in the article stand out:
a) a man whose rectal bleeding was dismissed by a doctor as caused by bear drinking. Isn’t a diagnostic colonoscopy a standard-of-care when there is bleeding? Or would you consider it defensive?
b) taking out healthy breast tissue instead of cancerous. I realize that they have to take more, but from the article it appears that the cancerous tissue was left in place but the healthy was taken instead. Is this OK? How would practicing defensively save you here?
One other thing I’d like to understand about defensive testing. Some patients ask for it specifically, I have no problem with your ordering tests for them. But some patients don’t want it and are willing to sign any kind of form. Since the vast majority of patients don’t sue (give me numbers if I am wrong, I do have an open mind here), they essentially suffer harm and pay (if they have high deductible) for your piece of mind. How is making patients pay for your benefit is different from stealing? How is it morally better than say a maid stealing jewelry from a rich family because she has a sick child? Her need is greater. And why is harming our health an acceptable price to pay for your protection? Again, I am not talking about patients who insist on tests. Only about those who’d like to know the odds and to have a right to refuse.
Anonymous
If it’s a choice between me risking getting sued, wasting time in court, depositions, having my family bankrupted and eveything I’ve worked for potentially taken away by you, etc…and wasting your money, harming you, etc…i’m sorry, but I come first…it’s called self-preservation. Ever heard of Darwin? I don’t understand why you find this difficult to comprehend…would you want to risk getting sued doing whatever job yuu do Mr. “open-mind”?
Another thing, I like how all these posters say they never sued anyone, then threaten to “sit across the aisle” from a doctor and sue…real comforting…
all you physicians out there…these are the type of people that come into our offices and er’s…keep testing away…
Anonymous
Most of us have never sued anyone..your attitute and general treatment of human beings turns people off and make them want to sue you. Maybe it is because we have lived and believed in the profession of medicine to be most respectable and we place you above most other people. Then you come along and call us names and treat us in a way that we never associated with your profession. Most of us laypeople have believed you went into your profession because you wanted to practice medicine, that you CARED about human life, that you choose to help those most in need.. You make it obvious that you are it only for yourself..
As for me personally,your way of parcticing medicine not only makes me angry, it makes me realize how very selfish you are. You don’t care that what you are doing is driving more and more people to the uninsured catagory…Employees can no longer afford to carry ins. and employers are in many cases cancelling policies or providing terrible plans to their employees.
Maybe because of the difference of incomes, between your profession and many of ours, that you can’t comprehend how this effects the average person..You are going to test yourselves right out of business. Or, you will drive the country into a forced national healthcare situation.
it seems as though you don’t even want to do anything to force a change. When we ask, “What can we do to help stop what is happening to healthcare, tell us how to help you?” Your response is pretty much “screw you, I’m taking care of myself, I don’t trust you, I don’t believe you, so, your going to get tested to death.”
Your going to cause the end of healthcare as we know it..
Anonymous
The whole state of medicine today is very sad. I’m still relatively young at 41, but am very disillusioned. I have the best of intentions for my patients, and have a good bedside manner. I always thought I would never get sued. Well I was wrong. Fortunately I won the lawsuit, but it sucked the life out of me. It was a life changing event. The most humiliating, brutal experience one could imagine. I didn’t sleep a minute the entire week of the trial. I’m currently going after the lying SOB expert who testified against me. The whole process was very unfair. The trial got postponed 3 times. this was very disruptive. Also the judge halfway through the trial thought I should settle because I was losing. Supposedly she was looking out for my best interests. Wrong. I just couldn’t believe I had to endure such torture for a frivolous lawsuit based on some hired gun expert to get before a jury and lie so he can make tens of thousands of dollars. There is no way anyone can justify that this is a good way for justice.
The problem today is that even the caring doctors are becoming extremely discouraged. The stress of running a business when one has to work harder and see more patients to make less money is very difficult. With rising expenses (malpractice, health insurance,…), and reimbursements that continue to fall, it’s a recipe for disaster. I really cannot see myself doing this for 25 more years.
The fact that lawyers don’t understand that the current system is destroying the state of medicine is very discouraging. There is no question the access to certain specialists (neurosurgery, ob,orthopedics,…) is dramatically falling and will continue to worsen especially in rural areas.
Anirban
We all need to understand be it law or medicine nobody goes there to simply help people,considering the huge personal investment a person has to make.but still a person can do the best for his client or patient and can expect to earn a good living.They are not necessarily contradictory.Health has never been a free lunch and never will be,and it has to be earned and and maintained like any other asset. period.human beings are necessarily narcissists and will always love and preserve oneself, Comparable to the situation is in my crowded OPD( not an ER) in Delhi where no patient gives a shit about since how long I am starving I can’t blame them because that is their way of self preservation.Medicines purpose as an altruistic profession is thoroughly mistaken .Few people are and always will be irrespective of whatever field they may go but forced altruism is a perfect recipe for disaster, it breeds corruption.Considering this the doctor who saves his ass by overtesting is just being cautious, because we all human beings do it for survival.
Anonymous
If it’s a choice between me risking getting sued, wasting time in court, depositions, having my family bankrupted and eveything I’ve worked for potentially taken away by you, etc…and wasting your money, harming you, etc…i’m sorry, but I come first…it’s called self-preservation. Ever heard of Darwin? I don’t understand why you find this difficult to comprehend…would you want to risk getting sued doing whatever job yuu do Mr. “open-mind”?
Actually I do understand. And most of us can get sued for any reason – somebody can slip and fall on my floor or being scratched by my cat. A robber can sue the house owners if their dog bites him while he tries to rob the house. And somebody sued my father for what looked like staged traffic accident. The guy run the red light but accused my father of doing it. My father won – eventually. So, yes, I understand.
Doesn’t mean I consider it morally justifiable. I personally have never sued anybody nor was I the poster who threatened to sue you; you seem to group all of us together. I even mentioned I’d be willing to sign whatever form you give me. But without your informing me about the risks or the test and about the fact that it is unnecessary I have no way of knowing if I have this option. If I am unconscious I have none (I do have a living will, but I am not talking about end-of-life here).
I think your ordering unnecessary tests without informing me that they are unnecessary and giving me a chance to opt out is equivalent to stealing from me. If a test can harm me, it is even worse.
By the way, you can become a patient too. Sure you know enough to say no, if you are conscious. But you can end up in the ER unconscious and be subject to all these tests. Would you be just as understanding?
What you are essentially claiming that it is OK to harm a person (who is very likely an innocent bystander and not somebody who’d sue you) or to steal from him/her to protect your time, money, and nerves.
You know, you are so hostile, I thought my post was very reasonable – I agreed that failure to diagnose is not malpractice in most cases; I asked questions about two specific examples mentioned in the article – you have never answered those. In fact you completely ignored them. You attacked me because I belong to a specific group – in this case “patients”. How is judging individuals for belonging to a specific group like “patients” different from judging them by their ethnic origin or if they are male or female? Seems like the same type of mentality to me. Oh, and by the way, shall I find examples of doctors who sue other doctors?
Anonymous
most doctors have other doctors in their family or know other doctors who will extend them the courtesy of not doing thse cya tests…and to answer your other question, a doctor will never tell you that a test is cya…they will tell you you need it to rule out a reasonable etiologic cause…like cardiac disease, lung disease, etc…why would they tell you the truth that it is cya? it is easier to order the test, and you’re covered…the patient is none the wiser. Thus, no need for a form stating you don’t want the test…you can always refuse but then we document that the patient refused the test to cover ourselves…either way we won…
in addition, you mention that anyone can get sued for a car accident, etc…but those are random events…if you see 40 patients a day to make a living, your risk is occupational and substantially higher…I hope you understand now…
Anonymous
“you can always refuse but then we document that the patient refused the test to cover ourselves…either way we won…”
Several lawyers on this and other sites have stated that simply documenting that “the patient refused the test” would be thrown out in court. A Plaintiffs’ attorney would argue thatthe physician made it up to cover himself. One lawyer even said he uses such statements as “evidence of your Shoddy care” by forcing a patient to refuse. You need to get a signed AMA, where it’s documented that the patient understands the risks of their decision, including death. One lawyer even told me he is good enough to get AMA’s thrown out in court, but it’s the best we can do.
Anonymous
I drive my car every day, and risk being sued every day just like you.
I have a responsibility to drive safely. I can be sued if something goes wrong even if I am not at fault, I will probably settle if there is a reasonable doubt about who is at fault, and I face the same risk of bankrupcty if a large award exceeding my policy limits were to be entered against me. Most of us live with this risk every day, and don’t take it personally.
SarahW
Car accidents are not “random” – they are usually caused by someone being careless or even reckless.
Anonymous
you may or may not ever get into a car accident…however,
something bad is going to happen to EVERY patient out there…including you. Much of the time, when that something bad happens, the patient looks to sue the doc because of the potential of a big payday, and you can always look back in hindsight and find something that could have been done to be a llittle more proactive that may or may not have prevented the problem…just trying to point out the difference.
Anonymous
“I drive my car every day, and risk being sued every day just like you.”
Perfect example.
When you drive, do you wear your seat belt?
I assume if you are drinking, you let someone else drive, to be safe?
I assume you’re not Britney Spears, so you put your infant in the Child Safety Seat?
If your brakes malfunction, I assume you don’t keep driving, you bring it to a repair shop?
Do you drive 120 miles an hour on the highway?
I have a responsibility to my spouse and children not to take extra risk at work.
I never take extra risk when I drive, I certainly am not going to take extra risk at work if I can avoid it.
Justifying the tort system by saying “just take it” is no justification at all.
Anonymous
“The fact that lawyers don’t understand that the current system is destroying the state of medicine is very discouraging.”
What makes you think lawyers don’t understand the system? Because we don’t agree that capping the recovery of those hurt the worst so insurers can make a little more money is the way to fix it?
Because we don’t simply lie down when you paint us all in a horrible light?
CJD
Anonymous
“Much of the time, when that something bad happens, the patient looks to sue the doc because of the potential of a big payday,”
According to. . . . you?
Anonymous
“in addition, you mention that anyone can get sued for a car accident, etc…but those are random events…if you see 40 patients a day to make a living, your risk is occupational and substantially higher…I hope you understand now… “
How is seeing 40 patients a day any higher a risk than an OTR driver passing 200 cars a day?
Anonymous
every doctor will get sued if they practice long enough…how many people do you know who have been sued over a car accident?
Anonymous
Again, according to . . . you? Kevin just last week or so posted a link of a what, 90 year old physician who had never been sued.
Anonymous
I guess the 90-year-old physician was such an anomaly that kevin had to post about it…
Anonymous
“I guess the 90-year-old physician was such an anomaly that kevin had to post about it… “
Then you always read on this blog about the poor schmuck intern who is in the wrong place at the wrong time and has 2 lawsuits already. Nice way to ruin a 27 year olds life. In case you lawyers didn’t know, interns don’t make major clinical decisions, and it’s a sign of the dysfunctional tort system that they get sued.
Anonymous
This line of reasoning (I can get sued for driving a car, so it legitimazes medical malpractice lawsuits) makes no logical sense. It’s OK to sue Mcdonalds because you are fat, it’s Mcdonalds fault, so it’s OK to sue a doctor, because you had a bad outcome, it has to be the doctors fault. Just because in this sue-crazy country you can get sued for everything doesn’t legitimize medical lawsuits.
Anonymous
“Then you always read on this blog about the poor schmuck intern who is in the wrong place at the wrong time and has 2 lawsuits already. Nice way to ruin a 27 year olds life.”
Really? When did he post that? Can you link it?
Anonymous
“This line of reasoning (I can get sued for driving a car, so it legitimazes medical malpractice lawsuits) makes no logical sense.”
Your premise is wrong. No one has said that but you. You can’t get sued merely for driving a car, it’s only when your driving of that car is negligent and results in harm to others that you can get sued. Same with med mal.
“It’s OK to sue Mcdonalds because you are fat, it’s Mcdonalds fault, so it’s OK to sue a doctor, because you had a bad outcome, it has to be the doctors fault.”
More wrong premises – you’re have a bad day. Or maybe they are just your own personal misconceptions – still they are wrong.
“Just because in this sue-crazy country you can get sued for everything doesn’t legitimize medical lawsuits.”
Actually, tort filings are down over the last decade, as are average payouts. 0 for 3 for you today, and all in one post.
CJD
SarahW
Hmmmm – what document says its “ok” to use the courts to get compensation for wrongs done to you….
Oh, yeah, the Bill of Rights.
Anonymous
I wonder what the writers of the Bill of Rights would think of today’s Lottery Based out-of -control suffocation of physicians, that 2-3% of GDP is spent on lawsuits, that hundreds of billions of dollars are wasted on Defensive Medicine. Oh yeah, they were too busy buying slaves to worry about the future.
SarahW
Many, many years ago I had discussions with my boss, an MD and highly regarded, mega pulbished and very well funded research scientist.
With a straight face, he insisted that if a doctor cuts off the wrong leg, he shouldn’t be sued. It’s just an accident, and its not fair if he didn’t mean to do it. It’s an operation, and operations have inherent risk. If you want a doc to help you, you have to take the risk he might make a mistake.
All I could do then was shake my head, and I guess that’s all I can do now.
Anonymous
I guess all these patient posts answer the guy’s question about why we need to practice defensive medicine…
Anonymous
You really think the majority of lawsuits are “cutting off the wrong leg”, or removing the wrong kidney? I work in an ER, and EVERY lawsuit I have ever heard of is much more vague, unclear. Typically a lawsuit due to an ER visit is an uncommon presentation of a common disease, ie a 35 year old has an MI, or someone with abdominal pain has an MI, or an xray is misread. I’m not worried about “cutting off the wrong leg”. For me, I worry about the 25 year old with a vague presentation ie “anxiety”, that looks like nothing but turns out to be a life-ending illness. Almost everything we see in the ER is vagueness, so we over-test it all.
SarahW
You really think the majority of lawsuits are “cutting off the wrong leg”, or removing the wrong kidney?
Uh, no. But the opinion of my old boss Illustrate a certain attitude that doctor’s should be specially protected somehow from lawsuit because of the altruism of doctors and the inherent risk of medical treatments, the egregious example of malpractice included.
What is your test for the legitimacy of a suit brought against an MD?
Anonymous
If you’re asking me my personal view I believe in socialized medicine, which i’m aware has alot of it’s own problems however anything HAS to be better then the completely dysfunctional and dangerous way we do medicine in the US. In a socialized system you’d sue the government. And yes, CJD, I’d be happy to take a 40% paycut to work in a better system.
Anonymous
You guys keep saying doctors are human, you can’t be responsible for making mistakes, it’s all the patient’s fault, blah blah blah.
Boo freakin’ hoo. When is the last time anyone here actually apologized to a patient when something went wrong? Were you honest? Or did you make excuses for yourself and try to sweep the whole thing under the rug? Do you honestly think patients don’t deserve some compensation if the wrong leg is amputated?
Get off your defensive high horses, people. Every single one of you has made errors that either harmed a patient or had the potential to harm a patient. If you want to circle the wagons and try to blame patients, lawyers and whomever else, fine. But then you shouldn’t be surprised when patients turn to the court system to obtain the justice you have arrogantly denied them.
Samson Isberg
I do work in a country with socialized medicine. And believe me, my salary is a pittance compared to what the US doctors make.
But I still would accept a 40 % decrease in my salary to be able to work in a better system than I do. Socialized medicine stinks.
Anonymous
we never said we were perfect that…what we did say was we are going to continue to screw people like you and order unecessary tests and referrals (everone of you will be a victim of this at some point if you haven’t already) and gang-bang you with cya consults and tests and ct scans and iv dye when you are in the hospital and then put you on a ventilator to keep you a vegetable for as long as possible…
Cathy
It is easier to sue someone who you have negative feelings about compared to filing against someone who you respect and believe just honestly made a mistake. I don’t have one Dr. that I could sue for making an honest mistake. (Don’t respond by telling me that I could and would sue you. You don’t know me or anything about me so don’t act as if you do)..Unless I found out that he had lied to me, ordered tests I don’t need, regularly commits fraud against every ins. known to man, is so self-important that instead of fighting this problem, like a responsible person, he just goes with the flow and keeps right on practicing the type medicine that anyone with a 10th grade education could practice.
I have believed my Physicians are honest with me but I’m finding out they probably aren’t.
You don’t have the right to send me for tests and procedures that you don’t believe I need. You betray my trust by doing so. This is no way of practicing medicine.
If this is how it is done then I could be a physician. Anyone could. All we need is a PC with a symptom checker. Any illness that could possibly cause this symptom then order the tests for it.
Why did you go through years of training if you aren’t going to use what you have been trained to do? There can’t be a solution because you won’t be honest with us. If you order a test for me and I ask you what is the liklihood that this test is going to show anything, based on your experience? Will you give me an honest answer?
Should I somehow be expected to know, on my own, what I need to have done? You have me over a barrel. If you think I need something done, you know that I believe in you and will most often do what you ask. I mistakenly have believed you want to help me.
I don’t want your defensive medicine I want your education and your expereince..I can’t be smarter than you about my illnesses…I don’t have the education you have to know what is serious and what is not…
You don’t deserve my $150.00 for a 6 minute visit if you can’t use your education. Thats what I’m paying you for.
I’m not your employer, so I can’t fire you. I come to you the same as I go to whatever beauty operator I choose. Because you having a product that I want to purchase. Your product is education and I pay your selling price to get it. I deserve what I pay for. It doesn’t take a smart person to order tests and procedures, but it does take one to know “what is reasonable.”
Anonymous
Would someone please suggest a solution, a reasonable, realistic solution? No, it’s not reasonable that doctors should be excused from responsibility (“First, do no harm” — sound familiar?). And it’s not reasonable to assume that all lawsuits are frivolous (the definition of ‘frivolous’ is not ‘I’m the defendant therefore…”). So now what?
Anonymous
Oh…so now you’re realizing that those x-rays and that stress test/echo/ekg was a cya test and you’re upset…boo-hoo! Like I really give a damn…good for you…I’m glad at least one of you have come to realize what fools you are…
Anonymous
anon 3:16. Whatever your drinking, you should stop and go take a nap.
Anonymous
When I think of all that money you people waste on cya test copays and deductibles I just get this warm and fuzzy feeling all over…
Anonymous
Is there any Dr. out there, any where, that believes this guy is REAL? If he is then you should offer to help him. He is losing it.
Anonymous
There was a study that came out in a malpractice law journal awhile back showing that the cumulative lawsuit risk of a typical doctor n teh United States over a 20 year time span is about 90%
For 2 lawsuits over 20 years, its about 50%, and 3 lawsuits its about 25%
So it is in fact true that doctors are virtually guaranteed to get sued at least once. No other profession, besides perhaps lawyers, stands such a high risk of lawsuits
Anonymous
This is the problem: I have Carte Blanche to order any test I want, “just in the case” the patient has the disease. One giant national game of “find the needle in the haystack”. I used to write the word “DEFENSE” on the board of the community ER I worked in, to remind myself, it’s us against them, I better over-test. There is no penalty for overtesting, there cannot be. WHoever creates such a penalty becomes responsible for the medical errors that occur if we limit tests. So the system shells out the money, to do all these tests, we are responsible to order these tests to defend ourselves, and we agree to take the beating when a bad outcome occurs. Why didn’t you order that CT Scan, Dr. Schwartz? “It’s like an unwritten contract. The only one who pays is the patients.
Bad Shift
There’s a bad apple here, and I’m afraid that by stating his case with such hostility, he is making a mockery of himself and of our lawsuit problem.
But I wanted to address a misconception: giving patients information about risks of diagnostic testing and allowing them to decide if, say, a CT scan is necessary for pain which has, for example, a 4% chance of being appendicitis, simply does not work. The phrase “patient declined CT scan,” does not protect the ER doctor in any way. A signed AMA form is marginally helpful.
The ones “over a barrel” are the doctors, who know that their clinical accumen and training allow for 97% certainty. There was a time when that was sufficient. Now, anything less than 100% certainty is grounds for suit, whether you explained the odds or not. Explaining incidence of disease and risks of tests is just polite, and I routinely engage in such discussions with patients who show an ability to understand, but it doesn’t really have a place in emergency medicine, and doesn’t really affect my practice style.
This is why emergency medicine is so expensive. Armed with only a good history and physical exam, I can often exclude appendicitis with 97% certainty. But there will always be atypical presentations, no matter how good of a clinician I am. For each percentage point of certainty, add about $1000 of tests. Thus, lab tests get me to 98%, CT with contrast to 99%, surgical consult with admission for observation and exploratory laparotomy gets me to 100%. I frequently stop at 99%.
If I were to explain this to more patients, more of them would opt out of the scan. Because I see about 11 cases of abdominal pain per night, this approach would miss appendicitis at least twice a year. Therefore, giving patients the option increases the risk to me, because there is no protection except for 100% perfection. Documenting that there was no right lower quadrant tenderness of rebound does not hold up. We are sued not for deviation from standards, but for bad outcomes.
I really wish there was a better way. For patients who actually try to pay their bills (less that 17% at my institution), I feel especially bad. On the other hand, defensive medicine actually does help prevent that 1-2% extra chance of bad outcomes. Unfortunately taxpayers are picking up the tab (for my patients).
Anonymous
You can’t get sued merely for driving a car, it’s only when your driving of that car is negligent and results in harm to others that you can get sued. Same with med mal.
OK, since I am the one who mentioned cars in the first place let me tell you what happened. My
father was making a left turn on a green arrow when some guy hit him from behind (the guy was driving in the same direction that my father was turning to). The guy run the red light, but there were no witnesses. The police came, the other guy claimed he was driving on green and it was my father who run the red light. My father could barely speak English by the way, it was less than 2 years after we had immigrated to the US as refugees from a communist country. My father was driving a new Datsun 210 (this was at the time of Iran contra affair when everybody was trying to save on gas) – our first new car, a guy who hit him some old car that looked like it was worth $200.
Some months later, we got a letter saying that we are being sued for $1500. Now this seems like a very small amount, but it was a lot for us then. We couldn’t take anything with us when we came to the US, my father who had been a mechanical engineer only managed to get a job in some plant as a layoutman for about $7 an hour and my mother – an electical engineer – still couldn’t find a job. I was in college on a scholarship and working part time for a minimum wage. $1000 was huge, especially after we spent all of our savings on the downpayment for this car. Also, we were just starting to build our credit history (one reason we took this car loan) and we worried that this type of things will ruin it for years to come.
The insurance company had a lawyer (now I am surprised they didn’t want to settle, but I guess they thought the whole thing was frivolous based on the pictures of the accident). My father went to court a couple of times, the other guy didn’t show up, the judge ordered this guy’s lawyer to pay my father $50 each time as a compensation. At this point it seemed like it was over.
Some 3 years later we got another lawsuit. This time we were sued (for the same accident) for $5000. The guy claimed car damages and also some medical expenses. Even though he was perfectly fine after the accident (and he hit my father’s car from behind), he claimed he went to the ER, had to do some tests, whatever…. His name also “magically” changed – from James O. to Philip. I guess his brother wanted some money. My father went to court, but as his English was still not great – he doesn’t have any aptitude for languages and he was in his late 40s at the time – he couldn’t tell me and my mother what happened: he told “my lawyer was talking, I told the story, the other guy was talking and then the lawyer was talking. I guess the other guy lost, but I am not really sure”. Now it sounds pretty funny, but it was stressful and this amounts were pretty big for us then.
There are lots of situation in this country when people get sued. Somebody in my community sued her friend for a million dollars after slipping on her friend’s stairs. The woman lost eventually but now after pretty much ruining 6 years of her friend’s life. Nobody could understand how this woman who sued could do it- virtually all mutual acquintances stopped talking with her – but she thought herself very “americanized”, I guess.
I do understand that doctors have higher risk of being sued. But I do believe that the majority of us don’t sue. I cannot see suing any of my doctors except for something outrageous like cutting the wrong leg. The posters above mentioned that the lifetime risk of a doctor to be sued at least once is 90%, but during this time the doctor will see a lot of patients, and probably will miss more than one diagnosis. I still think it is morally wrong to order unnecessary tests and then to make a patient pay for it. But I understand why you do it.
Anonymous
you sound like a nice guy; your story is kind of on a tangent with regards to this discussion except for bringing up another point…the litigiousness seems a characteristic of Americans and not foreigners…
Anonymous
After that sob story why is it you are defending these godda** lawyers! Unbelievable…
Anonymous
This sounds like one of those car insurance scams they run in Brooklyn…
Anonymous
After that sob story why is it you are defending these godda** lawyers! Unbelievable…
I’ve never defended lawyers. I hate the litigiousness of the US society. I do believe that a couple of examples in the article could’ve been legit (taking out wrong tissue and not investigating rectal bleeding – note I say could’ve been since I don’t know the details), and I also don’t like the fact that as a patient I may be subjected to unnecessary testing. I do think large part of the blame lies with “expert witnesses” and with unrealilstic expectations created by advertising.
Sorry for posting a story off-topic btw. I couldn’t let a lawyer’s comment that all car accident lawsuits are because of negligence. This was in Chicago, by the way. Besides, in hindsight the story seems funny enough.
Anonymous
To Anon 5:00pm – excellent explanation and point of view. One of the best I’ve read. I printed it to save.
To Anon 3:14pm – “Would someone please suggest a solution, …”
Here’s my personal solution for my practice. This is what works for me. It may be unworkable for other physicians.
First, I’m board certified in Ob/Gyn with 17 years of practice. Only Neurosurgeons have higher malpractice risk.
Largely Ob/Gyn’s have a procedure based practice. I choose a current definitive text such as Speroff’s Gynecologic Endocrinology or Gabbe’s Obstetrics. I make my self responsible for knowing it cold. Modified by some, but not a lot, of current literature. With some variance, but not much, the protocols in those commonly accepted definitive texts are the basis for my testing and evaluation/treatment. For instance; rule out ectopic pregnancy, testing for gestational diabetes, rational for ultrasound in pregnancy, abnormal uterine bleeding, indications for hysterectomy, etc. I ask myself, could a put a photocopy in the chart delinating the rational behind that individual test/treatment. I actually put a copy in the chart about twice a week.
Another perspective, mine alone, which might bother some patients.
I have no loyality to patients, per se. My loyality is to what I term “the diagnostic process of medicine,” and to my teachers, mainly my residency faculty, but also colleagues. If I perform the diagnostic process well and do what I was taught, with thinking, the patients will, god willing, automatically do well.
The board certification process in Ob/Gyn consists of two parts. The first part is a very long multiple choice test simply to demonstrate basic fact knowledge. The second part, however, is a live presentation of a year of actual practice to a panel of learned professors and practitioners who query the applicant as to method and rational.
My goal is to manage my patients, so that if they were to be presented to that examining panel, the examiners would nod in approval.
Anonymous
Having read this whole thread, I’ve got to tell you that the older I get the less I’m impressed with the behavior of doctors, lawyers, or any other professionals. And I am one. Few are practicing the “Golden Rule” of “Do unto others as you would have them do unto you.”
Anonymous
“I choose a current definitive text such as Speroff’s Gynecologic Endocrinology or Gabbe’s Obstetrics. I make my self responsible for knowing it cold.”
In my practice (Int. Medicine), I make a point of memorizing Harrison’s Principle’s of Internal Medicine and rememorizing it everytime a new editions is printed…
Anonymous
in my post above, change Anon 5:00pm to bad shift.
Anonymous
“I couldn’t let a lawyer’s comment that all car accident lawsuits are because of negligence.”
What I said, or meant to say since it wasn’t terribly clear, is that the THEORY is negligence. Same theory as med mal.
There’s no doubt there are some frivolous lawsuits. Particularly in the range you’re talking about. My state has a $5000 max for small claims. For a mere $25 in filing fees, and another $25 in service costs, any individual, without a lawyer, can file suit and have their day in small claims court.
What is likely to happen if it’s truly frivolous is just what happened in yours – the judge fines the other side and makes them pay your costs (or your insurer’s costs).
How do we remedy that? What else should we change?
Litigiousness is part of America, because we grant more individual rights than any other country. It’s how we settle our disputes, as opposed to barrel of a gun. We believe that the responsible party should pay for harm they cause, and we have put this system together as the most fair way we can think of to apportion harm and preserve these rights.
Do you know of a country that has a better system?
CJD
Anonymous
“Do you know of a country that has a better system?”
Most 3rd world countries…they insitutionally put patients in their place…in this country the doctors have to put them in their place by ordering unnecessary poking and prodding…
Cathy
Bad shift, I do understand a little better since a couple of you have finally taken the time to exlain, in a little detail, exactly what type unfortunate position you are in. I don’t mean to imply that physicians are bad. Actually, I look up to them and have a great deal of respect. If we were to place all of you in the same category, as the anon Dr. here, that is so full of anger and hate, it would be wrong of us . Its hard to place him in the role of caregiver or healer.
I still don’t like the fact of defensive medicine being used on me, but, I do understand it better.
What will happen when ins. companies stop approving all these tests and it becomes our (the patients) responsibility to pay out of pocket for all this useless testing? Many more people will begin to question “Why do I need this test?” Right now, most people are more than happy to overuse the system (at your insistence) because it is not breaking them personally. Thats going to change, one day. What will happen then?
Anonymous
1. patients will be sent to the e.r. to get tests there…emergency care is almost always paid for.
2. the insurance companies will pay for the tests, and they do now, for the reason that if they don’t they may get sued (what a surprise) for the medical negligence that goes along with not doing the test (which is necessary in 0.001% of cases).
3. guess what, you may have to pay out of pocket if none of the above apply…and take responsibility for health care just like you pay bills for your 500 channel cable tv plan, etc…
Anonymous
If patients had to pay a small co-pay (I often say 50 cents)alot of this nonsense would come to an end. A patient with gas pain in their belly will be more likely to “let it pass” then to come to the ER, where they will have to drink contrast and have an abdominal CT, as well as labs. Here’s to the 50 cent co-pay! (I know, some insurances require it already)
Anonymous
Reading the above comments from sue-happy, self-absorbed, whiny patients and their greedy lawyers makes me so glad that I quit medicine in my 40′s. At first I felt guilty that I was quitting when there was such a big shortage of radiologists but not any more. Thank you for reminding why I made the best decision of my life.
RL
Cathy makes a good point – with the advent of the new high deductible consumer-driven health plans, there’s pressure put on patients by their employers, to ask questions about costs and the need for tests and treatments. But seeing how the doctors who’ve posted here are reluctant to discuss their real reasons for ordering so many tests, based on their own economic pressures, this looks like it could lead to another source of conflict between patients and doctors.
Before I ever found this site, I had no idea how much testing was due to defensive medicine. I doubt most patients are aware of this, and I wonder how many employers are aware of this as well.
I’d be interested in knowing if any doctors here have come across patients with these new health plans, and if there were more than the usual questions about costs.
Anonymous
Where is a sue happy patient in this thread? Where is one that has ever filed even one lawsuit against a doc.? Are you speaking of some of the responses that were made to the most mean mouthed arrogant Doctor in history? If so, then I’m as happy as you that you got out of medicine. I’m certain the patients you no longer have are equally happy!
Anonymous
Wow, You attacked that radiologist as if he actually saw patients! By the way “some of the responses that were made to the most mean mouthed arrogant Doctor in history” is probably about 10 different docs who post here, you keep getting your anonymi mixed up. I have respect for the radiologist who wrote that, he got out in time and made some good investments so he doesn’t have to deal with the torture I and my colleagues do on a daily basis. He has written in thepast how his health improved by getting out, how his life is so much better. He reminds me there’s hope for us all. Why don’t you go attack another profession, like politicians?
Anonymous
“What is likely to happen if it’s truly frivolous is just what happened in yours – the judge fines the other side and makes them pay your costs (or your insurer’s costs).”
Please CJD fills us in on the evidence to back up that statement. I (nor my collegues) have NEVER heard of a judge fining the other side in med mal suits, and trust me we have all been sued (I guess that makes us all “bad doctor’s in warped reasoning). Or is that some statement you just pulled out of your a$$.
“2. the insurance companies will pay for the tests, and they do now, for the reason that if they don’t they may get sued (what a surprise) for the medical negligence that goes along with not doing the test (which is necessary in 0.001% of cases).”
You CAN’T sue an insurance company for medical negligence. That was just decided by the supreme court fairly recently.
Anonymous
I have several patients with high-deductible plans or consumer driven health plans and they are in general educated, nice people. And yes, I am very honest with them about the reasons for ordering the test, I document in detail and I have a low volume practice, with close follow-up of all cases. These patients are more reluctant to undergo tests. If I insist, they will go for the test but I’d better be right about the need for the test !
Anonymous
Out of curiousity CJD, how many times have you been sued?
Anonymous
except for sarahW, cathy, RL and CJD, why is everyone ANONYMOUS? I would love to see a cat fight with names and IPs on it! Is it possible in blogging?
I’ll post next time, I enjoy reading this.
ANONYMOUS TOO
Anonymous
except for sarahW, cathy, RL and CJD, why is everyone ANONYMOUS? I would love to see a cat fight with names and IPs on it! Is it possible in blogging?
Last thing I need is a sodomite like CJD tracking me down and suing me for libel for something I wrote on this blog. I do this to release tension about lawsuits, not add to my risk. If you made docs sign in, they’s leave.
Anonymous
Anonymous 11:01, I have been sued once. Well, twice if you count small claims by a tenant.
CJD
Anonymous
“Please CJD fills us in on the evidence to back up that statement.”
I was referring to small claims cases like hers. You mistake “frivolous” with cases you don’t agree with.
Besides, most of the time you’re not even paying out of pocket for the direct costs of your attorney, so really it would be your insurer’s decision to pursue the claim.
CJD
Anonymous
“If I insist, they will go for the test but I’d better be right about the need for the test !”
You sound kind of clueless…a physician can almost always justify the need for a test…the insurance companies just put up these hurdles, like you have to call “1-800-dildo” or whatever, and press a whole lot of numbers in succession, then you get to some high school graduate who asks you asks you questions off a computer template for whatever test you’re ordering. If you say the patient has chest pain, you think they won’t allow a stress test? Or if you say rule out appendicitis, you think a cat scan wouldn’t be approved? Every test I have ever ordered has been approved, you just have to put up with the nonsense of wasting time on the call.
Anonymous
just to get back to the post that started this whole thing, I usually send almost everyone for a colonoscopy. Even a 20-year-old with rectal bleeding and obvious hemorrhoids (maybe they are the 1:1000000 who have colon ca)… it’s a shame this is what we have to do because of the lawyers and patients…
diora
Litigiousness is part of America, because we grant more individual rights than any other country. It’s how we settle our disputes, as opposed to barrel of a gun. We believe that the responsible party should pay for harm they cause, and we have put this system together as the most fair way we can think of to apportion harm and preserve these rights.
Unfortunately, this is not the only reason for lawsuits in the US. A few lawsuits are legitimate, more are driven by greed, most malpractice lawsuits are probably driven by pain, anger and ignorance.
In fact, I believe ignorance drives most malpractice lawsuits – patients truly believe they were wronged because of what they saw on TV or heard on the radio or what their “expert” doctor told them. Unfortunately, in the majority of cases this is not the case. A lot of us don’t realize that tests are not risk-free, even fewer understand how ambiguous the results of biopsy may be and how difficult a diagnosis often is. I only understood it recently, and I don’t believe I am stupid.
Another reason for lawsuits that I think is specific to America is that many people don’t take responsibility for their own actions. If I didn’t get test results in the mail, it is my responsibility to call and to check. Even if somebody promised to call. I might be upset that they didn’t do as promised, but it shouldn’t be grounds for lawsuit IMHO because I know how to use the phone. If I refused a test/prescription it is my responsibility to live with consequences. Just like if I decided to swim far in the ocean and drowned. It’s great if a lifeguard saves me, but if not it is my fault. But for some reason here in America people don’t like to blame themselves. Not all Americans, maybe even the minority, but enough to make life worse for all of us.
Anonymous
“A few lawsuits are legitimate, more are driven by greed, most malpractice lawsuits are probably driven by pain, anger and ignorance.”
This statement has literally no basis in fact.
“In fact, I believe ignorance drives most malpractice lawsuits – patients truly believe they were wronged because of what they saw on TV or heard on the radio or what their “expert” doctor told them.”
This is half right. Because ignorance is partly responsible. The ignorance stems from the unwillingness of medical providers to spend enough time with their patients when something does go wrong. Instead, they clam up.
“Another reason for lawsuits that I think is specific to America is that many people don’t take responsibility for their own actions.”
Absolutely true. If people would take responsibility for their actions and pay for the harm they’ve caused (or more accurately, if their insurers would), then the need for lawsuits would be lessened. As it is, businesses are responsible for the vast majority of lawsuits filed in the US.
Now, if you think people failing to take responsibility is a uniquely American thing, then you’re fooling yourself. Why you don’t hear as much about lawsuits in other countries is that the need for them is alleviated by the vast social safety network. Our litigation system is largely about burden shifting to the responsible party. In many other countries (at least Westernized ones), there is no burden to shift as the taxpayer picks up the tab.
CJD
Anonymous
My cancer was not diagnosed, despite alot of symptoms, including 35 pound weight loss – tumor that was present throughout the weight loss was ignored, then when I finally got them to biopsy– the node was misread as benign. The doctors, who granted did lots of tests, missed what was going on–but– the mailman in my office was spreading rumors that I had cancer because of the drastic weightloss and how awful I looked. It was obvious to the mailman that something big time was wrong.
I did not sue when I was finally diagnossed several years later, at a later stage. I was less angry at the pathologist, who made a flagrant error, than the internist who decided I was a hypochondriac and treated me as such, although prior to the these symptoms, Id been rather doctor avoidant. Had I sued, she would have been my target. Better to say “we dont know” and treat the patient with respect, than to blame the patient for failure to diagnose.
And, supposedly, I didnt go to bad Drs– all were on the so called “best of” lists”
Shannon
Dr. Bad Shift,
Can I talk to you for a book I’m writing?
My email: shannon.brownlee@comcast.net
Thanks
Anonymous
All physican’s are human just like the patient. Rad Doc’s read over 100 to 150 films a day. It’s bad that in this life bad things happen to good people. My husbands been a Rad Doc for 14 years. He has felt bad when he’s missed something. The problem is the money can never replace what was lost on both ends. Most Doctor’s that I know don’t get up in the morning and say to themselves let’s miss diagnose someone today. They have families and the government doesn’t make it easy for the patient or the doctor anymore. Patient’s some of the times have grave news and it’s bad. They get angry and up set at the out come. I’ve personally been missed diagnosed and so has my husband. Requirements are getting harder and more patients come in that need more help. It’s said but lawyers don’t care. I’ve seen them laugh and know they were going to get a Doctor for everything. I’ve seen lawyers that think it’s funny that they run the country. Look at capitol Hill. Both the patient and the Doctor loss.

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