It seems that patients are surprised and upset at the amount of defensive medicine and overtesting routinely thrown at them.

What about giving patients a choice? Not realistic, as this physician commenter eloquently summarizes our defensive medicine conundrum. I hope that every patient and lawyer reads this (emphasis mine):

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).

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  • TXMed

    A fine explanation for the commenters/patients who feel they’re being deceived by physicians who engage in defensive medicine.

    The evidence on the effects of frivolous malpractice claims on medicine can be debated by reasonable people. Are such suits actually the driving force behind high malpractice premiums? And questions of the like.

    But, review after review shows the true nature of lawsuits against physicians. They correlate much stronger with bad outcomes, and particularly strongly with physical disability or death, than with actual negligence.

    Lower the standard for proving frivolous lawsuits and increase the penalties for such, including disbarment after an established history of meritless suits. Establish health courts. Put a reasonable limit on non-economic damages.

    There is real negligence out there in the medical world. It is just as much a travesty that victims of such often don’t get compensated as it is that so many who haven’t suffered do or at least attempt to.

    Defensive medicine is simply part of the increasingly adversarial nature of the doctor-patient relationship. However, don’t ever think that physicians are the root driving forces of such. That distinction belongs to unrealistic patient expectations and the current compensatory system. Defensive medicine is simply a response.

    The change has to come at the bottom. That is where the real task lies. Patients commenting on this blog can feel cheated by defensive medicine and further exacerbate the situation or doctors and patients can work towards solutions.

    I for one am an optimist. I’ve got three years until I graduate, and I truly believe, even as pundits on both sides predict doom and gloom, that the American medical system will be better off when I enter residency than it is right now.

  • John J. Coupal

    An excellent book that addresses just that problem is “Medical Choices, Medical Chances: How Patients, Families, and Physicians Can Cope with Uncertainty” Harold J. Bursztajn, et al. Routledge 1990.

    I just completed reading it. If physicians and the public can incorporate the books’ ideas, txmed will be practicing in a much friendlier climate !

  • Anonymous

    “We are sued not for deviation from standards, but for bad outcomes.”

    Technically true, but misleading.

    Initiation of a lawsuit is obviously caused by bad outcomes, but success of a medical negligence lawsuit is predicated upon deviation from standards. Two different things.

    Any bozo can file a lawsuit, but will the case have merit?

    In my state we have a non-judical mandatory “medical conciliation council” or MCC which reviews all malpractice actions prior to trial.

    It’s findings are non-binding, and thus a party can move to trial even if no basis for negligence is found, but that’s rare. If no basis is found, the lawyers usually get the hint and drop the case. If a basis is found then most times an out of court settlement occurs. Members include physicians, lawyers, and lay persons. Not perfect, but close to a “health court.”

  • shadowfax

    The phrase “patient declined CT scan,” does not protect the ER doctor in any way.

    This is incorrect. Granted, if that’s all you say, okay, sure, it doesn’t protect you. But if you document the following:

    1. Pt was advised their symptoms were suggestive of Diagnosis A, B, C
    2. Diagnostic study was recommended to confirm/exclude Dx
    3. Pt declined the study for reason X
    4. Pt understood and verbalized the risk and appeared to be making an informed refusal of care
    5. Alternatives (if any) were reviewed
    6. Pt was given the opportunity to return if changed mind.

    If you have a robust document, preferably dictated, outlining the above facts, you can still be sued, but you will likely prevail.

    I try to give all of my patients in the ER a choice about their procedures, when possible, though I shade the strength of my “recommendation” proportionate to my estimated pretest probability of disease.

  • Anonymous

    Shadowfax is right on the money.

  • Flea

    A couple comments.

    It was a brilliant post, so I hesitate to offer an amendation, but I will.

    ER care is expensive, but so is primary care, for the same reasons.

    Shadowfax is correct that the documentation he suggests will protect a doctor from being sucessfully sued, but it will not prevent a lawsuit in principle. It certainly wont prevent a lawyer from wasting his time looking at the case, or at least from hiring an expert witness.



  • Anonymous

    Shadowfax: If you’re going to go so far as document the fact that you gave the patient a choice of a test, and he declined the test, why not just get it in writing? I advise EM Residents to get a signed AMA form on any patient who declines a workup. I have gotten to the point where I ask the patients to sign AMA just to go outside and smoke a cigarette. If they sign, and you document they were competent to make the decision, it is a far greater protection then just documenting they declined. If it comes to court, without a signature, it’s your word against theirs. I also have an unbiased witness (ER secretary, security guard, witness the signing of the AMA, to show I wasn’t involved in coercion.

  • Anonymous

    Thanks shadowfax…I copied your note and will utilize in my practice…

  • Anonymous

    Can anyone tell me how much money you need to retire?


  • Anonymous

    New book out called “The Number” which is a good read and can help answer that question for you.

  • Anonymous

    just finished reading “The Number” — it was stinky. Lots of pages, not much meat. Might I recommend looking at the last chapter at Barnes and Noble, then buying Benjamin Graham’s the Intelligent Investor instead?

  • Anonymous

    thanks…I’ll probably read both in B & N!

  • Anonymous

    The Number is not really about exactly what that number is, although the 4% thing is probably accurate.

    After reading it, I have asked a few people what the number is for them. He’s right, you get a lot of different reactions.

  • Anonymous

    what’s the 4% thing?

  • SarahW

    Missed appendicitis is probably not the best example here.

    In women, where the differential is a long list and exam may be equivocal or misleading, an appendiceal CT or CT with contrast is almost always warranted.

    Without repeating the post, I also agree with Anonymous 2:19.

    I get a little irritated when suits are called “frivolous” just because they settle or are lost. If there is a reasonable basis, a reasonable question of whether a physician is at fault, the suit isn’t frivolous though ultimately lost.

    I cannot see giving physicians special protection against malpractice suits, changing the standard for a legitimate suit from a “reasonable basis” for suit, to “plaintiff wins”. And that seems to be what you want.

  • Anonymous

    “In women, where the differential is a long list and exam may be equivocal or misleading, an appendiceal CT or CT with contrast is almost always warranted.”

    Really? I’d like to know where in medical school you heard that.

  • Anonymous

    “what’s the 4% thing?”

    Basically that you need to have enough to live on a 4% return on the investment. So if you need $100K a year in retirement, your number is approx. $2.5 million.

    That assumes you don’t draw down the principal. Check my math, it’s not my strong suit.


  • Anonymous

    Anyone who talks like that hasn’t gone to medical school…she just thinks she knows medicine like most of our patients…I’m sure you’ve run into people like this…

  • Anonymous

    Not much different than physicians who know all about practicing law. I’m sure you’ve run into physicians like that.

  • diora

    Another excellent book is:
    H. Gilbert Welch. “Shold I be tested for cancer?: Maybe not and here is why”.
    This book is about screening tests rather than diagnostic tests, but it clearly points out the risks of tests, uncertainty that surrounds the benefits and how close a call a diagnosis often is for radiologists and pathologists. It also explains some of the reasons why doctors are pushed to test.

  • Anonymous

    “In women, where the differential is a long list and exam may be equivocal or misleading, an appendiceal CT or CT with contrast is almost always warranted.”

    sounds like a defensive er doc rather than a patient concerned about overtesting…she could work in my er anyday…

  • SarahW

    This forum demands I speak in generalities….
    Maybe Kevin would take up the issue of missed appendicitis.

    But long story short…. it’s true that if you send a girl who came in with acute lower abdominal pain home with no CT, no repeat exam, with a lecture on condom use and an inadequate treatment for PID, and she is found unconscious on the bathroom floor 24 hours later with a ruptured appendix, you will be in the soup.

  • shadowfax

    Anon 6:26:

    Yes, a signed AMA is also good. A signed AMA without supporting documentation is worthless (to the dismay of many docs who believe the AMA form has some talismanic power to ward off liability). But as you say, a signed AMA with appropriate back-up documentation is optimal.

    But I only get the AMA when I strongly recommend a test or work-up and the patient refuses. There are many times that the situation is more equivocal and the patient chooses one of a number of options I offer. For example, yesterday I had a 65 y/o lady with COPD and nasty bronchitis with fever and borderline sats. She improved with Rx in ED. I offered her admission because that would have been optimal and she met criteria, but she was keen to go home, which was not unreasonable. Or many times I will see a moderately-dehydrated kid who could go either way — pedialyte or IV fluids. Parents have strong feelings, usually, one way or the other, and I listen to them and go with their preference. More controversial would be the spinal tap in someone with worst headache (and negative CT). If their story is not compelling for SAH, I recommend the LP but don’t push it too hard, and make sure the patient understands the options.

    In all the above cases, I carefully document the conversation and the rationale and the fact that the patient was offered the information and made an informed decision regarding their care.

    So far, so good . . . (knock on wood).

  • Anonymous

    all the commentators who think they know appendicitis because they looked it up at WebMD or their neighbor had it ought to first read Cope’s “Early Diagnosis of the Acute Abdomen.” And spend 10 years in a real ER. Then I’ll stop laughing.

  • Anonymous

    Shadowfax: I agree a=with all of the above (not forcing an AMA on patients who make personal choices) except Lumbar puncture. The cost of missed SAH (or missed meningitis) is so great to our personal livelihood I basically see it as a choice between CT/LP and CT/AMA. Then again I CT/LP nearly every headache that comes through the door, except the obvious ones. I’ve picked up a few missed meningitis on repeat visits (Yes bacterial), and one negative CT, positive LP. It’s a painful way to practice, but it lets me sleep at night (or day)

  • Anonymous

    “But long story short…. it’s true that if you send a girl who came in with acute lower abdominal pain home with no CT, no repeat exam, with a lecture on condom use and an inadequate treatment for PID, and she is found unconscious on the bathroom floor 24 hours later with a ruptured appendix, you will be in the soup.”

    Thanks for the advice…you must be a member of MENSA or something…

  • SarahW

    ::eye roll::

  • SarahW

    Web MD has its place and I don’t knock people who look things up on it. But that has nothing to do with me, and with respect, you are being an ass.

    I realize you dont’ know me, but I wish you would, too.

    If he’s among their membership, I think MENSA might have a word with the ER doc who did just what I described.

  • Anonymous

    You hang in there, SarahW. I was one of those cases of ignored appendicitis that nearly killed me.

  • Anonymous

    It sounds like you “ignored” it too…or do you not consider yourself to have any responsibility in the matter?

  • Anonymous

    “I was one of those cases of ignored appendicitis that nearly killed me.”

    How much money did you make off the settlement?

  • Walter E. Wallis

    Remember when they had insurance machines in airports? Perhaps they should put them back in doctor’s offices. Let you buy all the insurance you think you are worth, but limit your recovery to just direct damages. It is the punitive that hurts.

  • Anonymous

    “Ignored” – I love the choice of words – sounds so malicious – those evil docs

    Anonymous ER doc who sleeps well at night is a great example of why and ER is a great place to be if you are very sick but not a good place to be if you just have a headache. This doc is willing to spend amazing amounts of money and subject patients to painful tests in order to sleep better at night. I wonder if he/she will sleep well when the system hits such a high proportion of GDP that it becomes unsustainable. But hey, a few of those pick ups over the years justifies it all.

  • Anonymous

    The last post brings up an important issue. Our current tort system demands unlimited care at any cost. By 2015 it’s estimated that health care will represent 20% of GDP. If that’s acceptable to society we should leave the tort system intact and let plaintiff’s attorneys set the standard of care. On the other hand if affordable quality health care is a worthy goal, let evidence based medicine set the standard of care. Not picking up every cancer or appendicitis will then have to be an acceptable trade off. As resources are limited, we can’t have it both ways.

  • ClassAct101

    My 29 year old married, healthy daughter, Professional, mother of 3, 5’5″, 130 lbs, woke up AM with cramping which she attributed to her upcoming cycle. 12 hours later, her husband took her to ER with excrucating abdominal pain, nausea, fever. The ER doc perscribes pain meds, no effect, pain increasing, he perscribes a different kind of pain med, ordered blood work and told her he thought she had the flu. Later, ordered a CAT scan to look at her appendix and the CAT was inconclusive because he could not see the Appendix. So he RULED OUT Appendicitis and told her she had a virus and ordered more tests. 24 hours later, her belly is HUGE, fever spiking above 103, in agony she gets a second opinion…2nd opinion Doc says get laproscopic NOW!!…by then her appendix has ruptured and things are a DISASTER. Over 2 weeks have now passed and she is home but so weak she can hardly walk, still in pain. Husband losing time from work, danger of abcesses, what a disaster! So, in my opinion, people going to the ER are treated like they are just going in because they aren’t feeling very well or have flu symptoms and that leads to this kind of missed diagnosis and potential lawsuits. All I can say is that the ER doc that told her she had the flu and left her laying there for 24 hours in agony better not send her a bill. Her insurance will pay him enough as it is. By the way, she never saw him again until the day they wanted to discharge her, still vomiting up her liquid diet, unable to eat, diarrhea, and in pain. So, some people who go to the ER REALLY need to be believed when they say they are sick, because they ARE!

  • ClassAct101

    …that is an ADDITIONAL 24 hours after the Doc leaves and after she is there all night until the next morning!

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