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.
Related posts:
- Poll: Should doctors apologize after a medical error?
- Medical errors: Impact on physicians
- Expecting perfection in medicine
- Some hospitals and nursing homes are asking patients to sign arbitration clauses prior to admission
- Bed sores: Result of poor care?
- Medical waste
- Texas malpractice caps: Readers react
{ 87 comments }
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.
What kind of defensive medicine would you suggest to keep spatulas out of patients?
This guy looking at the xray has to be a lawyer. The chest film is upside down. He can still be a doctor, though.
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.
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?
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.
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?
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.
“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.
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.
“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?
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.
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…
“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.
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.
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…
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..
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.
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.
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?
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…
“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.
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.
Car accidents are not “random” – they are usually caused by someone being careless or even reckless.
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.
“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.
“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
“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?
“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?
every doctor will get sued if they practice long enough…how many people do you know who have been sued over a car accident?
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.
I guess the 90-year-old physician was such an anomaly that kevin had to post about it…
“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.
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.
“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?
“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
Hmmmm – what document says its “ok” to use the courts to get compensation for wrongs done to you….
Oh, yeah, the Bill of Rights.
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.
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.
I guess all these patient posts answer the guy’s question about why we need to practice defensive medicine…
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.
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?
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.
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.
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.
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…
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.”
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?
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…
anon 3:16. Whatever your drinking, you should stop and go take a nap.
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