A choice that physicians face multiple times daily. And people still say that defensive medicine doesn’t amount to much:
Having been involved in two malpractice cases””one that resulted in a judgment against me and a second that was dismissed””I’ve learned something about efforts to assign blame. Despite the ruling of negligence against me, the hospital peer review (excluded from evidence at trial) found “excellent care, well-documented.” The jury apparently disagreed.Every day I work as a doctor, I must choose between committing malpractice and committing insurance fraud. If I order enough tests to show even a reasonable defense, I will be far exceeding the acceptable approach to diagnosing a common medical problem. My jury apparently believed that a CT of the abdomen is the appropriate test to order to “completely” diagnose a UTI or investigate diarrhea. My second suit taught me that if I order extensive radiological studies, I will still be sued.
Imagine if he hadn’t ordered expensive tests in the second case. He probably would have lost that case as well.
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{ 27 comments }
According to comtemporaneous newspaper accounts, Dr. Hartzell was not held liable in the case in question where judgement was rendered. I’m confused why she would suggest otherwise in her editorial unless she was deliberately trying to mislead the reader.
No one says “defensive medicine” doesn’t amount to much. They simply say it’s indefinable, and is whatever a particular physician says it is. And physicians don’t seem to know if it (whatever it is) works. Nor do physicians seem very interested in promulgating guidelines to reduce its use. Therefore, harping on it isn’t very useful.
“Guidelines that reduce its use” are only useful if juries are bound by them.
How about this for a definition of defensive medicine: Routinely ordering tests or procedures for patients that you would not feel the need to get for your kids, yourself or your mother in the same circumstances.
Is that always bad? Well, it is a simple fact that when you have a patient before you that you have seen little of, trust can only go so far, and if there is a bad outcome, they don’t know your very well and their assumption that you were doing your best has it’s limits. Perhaps a certain amount of defensive medicine is a good thing as it protects not only us from the unpleasant experience of an accusation of neglience in not ordering that extra study, but also protects that patient from that unpleasant soul destroying experience of feeling gyped when they believe that all their suffering is due to the callous neglience of Dr you, rather than simply a vagary of fate (a less damning emotional experience).
If you think of defensive medicine differently, something you do for the benefit of your patients, in the context of the simple reality that people aren’t going to ascribe the God-role we wish they would, when things go wrong–then it is not such an emotional imposition.
It is never necessary to commit insurance fraud to avoid malpractice–unless you subscribe to the inane notion that all medical care must be paid for by insurance, and that it is the doctors responsibility, not the insurance companies to make that happen.
It is never necessary to commit insurance fraud to avoid malpractice–unless you subscribe to the inane notion that all medical care must be paid for by insurance, and that it is the doctors responsibility, not the insurance company’s to make that happen.
It is never necessary to commit insurance fraud to avoid malpractice–unless you subscribe to the inane notion that all medical care must be paid for by insurance, and that it is the doctors responsibility, not the insurance company’s to make that happen.
Is that always bad?
When the risks associated with the test is higher than the probability of benefit from the test, that yes it is bad.
Are CTs for a kid when the probability of said kid benefitting is 1/1000 when the chance this child will get cancer from the test sometime in future is 1/500 (for example, not sure about actual numbers) bad? I’d say so. If a hypothetical test has 1/10 chance of false positive and the test to evaluate said false positive has 1/100 risk of life-threatening complication, and you order the test to rule out 1/10000 chance of some desease, then yes it is bad? If the test hasn’t even been shown to be effective? What if the evidence says that harms of a test is likely to outweight the benefits (e.g. urine tests for symptomless people)?
In general, I’d say it is bad if your patient would’ve refused the test had he known the odds.
So tell the patient the odds and do the screening test if they want it. You shift the burden onto the patient to make the simple decision.
Instead of trying to make this decision why not just try some honesty? I agree that you should shift the decision to the patients.
Explain the situation and tell them what tests are available and what risks are involved. be honest with them about the liklihood of this tests showing anything. Give them the odds and the benefit of your eduation and then allow them to decide if they want it. I also think you shoudl then document it well. Pt. was advised of available test and has refused at this time.
If a Doc tells me he could order such and such but the liklihood of something showing up is about 1/1000, I probably want to wait for awhile and opt for watchful waiting.
If a patient asks you when you are ordering a test or procedure “Do you really think I need this test?” What do you tell them?
Most people have an amazing capability to understand normal english. it is really a put down when you assume we are all stupid and therefore YOU must be totally in charge.
Because if they’re honest, then they lose this as one of their cries in their quest to be free from responsibility from their actions.
“So tell the patient the odds and do the screening test if they want it. You shift the burden onto the patient to make the simple decision.”
That wont work in court. Lawyers will just say the numbers “confused them” and the doc did not exercise due diligence in being 100% sure the patient knew what was going on.
Given that physicians win at trial 75% of that time, evidently that does work in court.
“”Guidelines that reduce its use” are only useful if juries are bound by them.”
Physicians set the standard of care. Promulgate a standard and they will be stuck with them.
Just curious…with the increase in physician groups and clinic associations in which the doctors themselves are shareholders, isn’t there some financial incentive to order “defensive” tests and procedures? Even if the doctor ordering the test doesn’t actually perform it, generally someone within the clinic does, which brings more income to the group and its shareholders.
I think many of the above comments are unaware of what hte poster is saying. A classic example is a patient with a routine cough. Most insurance companies will not immediately let you get a chest ct until the patient has been treated with antibiotics for a certain period of time and have had a chest xray. You see the patient once and then they do not follow up. Four years later you are sued for not diagnosing a lung ca. So, you are stuck, do you buff the chart to get a CT paid for at the first visit? These are not the type of cases that go to court but rather attorneys will try to get an out of court settlement. (Many personal injury lawyers have never and never hope to end up infront of a jury.) You can’t shift responsibility to patients as attorneys will always argue that they were uninformed of the severeity of the risks. It is a no win situation no matter what you do. The big thing is have hungry is the lawyer!
The flaw in the preceding argument is that “the insurance company will not let . . “. The insurance company isn’t practicing medicine, you are.
When you forget that fact, you are in trouble, for you will either start practicing to protect insurance company profits, in abrogation of your oath to put patient benefit first in all that you recommend, or you will make a liar out of yourself in commiting insurance fraud to decive the insurance company into “practicing medicine” the way you want to practice medicine.
The problem with getting in the habit of lying to insurance companies for the sake of getting the care you recommend to the patient paid for by them, is that you undermine the entire basis of trust and the assumption of integrity upon which the insurance companies willingness to accept what you report is based. Why should they believe anything you say once they figure out you are a liar? Even more important, no matter how much the patient may implore you to say what you have to say to get the test covered, once you comply, you have shown them that you are willing to lie for money, and undermined the trust upon which the doctor-patient relationship is based. If you are willing to to someone else for my financial benefit, how much more are you willing to lie to me for your financial gain? Are you recommending this surgery because I need or because you need the fee?
The right thing to do is clear. You recommend and order what you medical judgement indicates–not what the insurance company will pay or your fear of a lawsuit. If the insurance company refuses to pay, you present the facts and your recommendations to them. If, based on the truth, they refuse to pay, then it is up to the patient ultimately to decide to obtain the test, get a second opinion, decline the test, find a new insurance company, etc.
If doctors let themselves be turned into a profession of liars by insurance companies, then they will have cast out the baby with the bathwater.
” You see the patient once and then they do not follow up. Four years later you are sued for not diagnosing a lung ca.”
And this happens how often? What is the actual risk of this happening? Not only you being sued, but losing? If you don’t know, then why would you act in a manner to alleviate risk you can’t quantify?
“These are not the type of cases that go to court but rather attorneys will try to get an out of court settlement. (Many personal injury lawyers have never and never hope to end up infront of a jury.)”
Again, what’s your source of info for that? How many med mal plaintiff’s attorneys, probably the most difficult and expensive plaitniff’s cases to take, are really scared of being in front of a jury? Or are you just making this up as you go along?
“You can’t shift responsibility to patients as attorneys will always argue that they were uninformed of the severeity of the risks.”
Really? How often does that work in court? I assume you know, because surely you wouldn’t be making decisions without knowing the basis for them, would you? And if you don’t use the correct info to come up with the diagnosis for treating that problem, how can patients trust you to diagnose their problems correctly?
To answer the above questions, I would refer the commenter to State Volonteer’s Insurance. This is an exact case that was presented. the information for how many of these cases are settled out of court is straight from the formerly named American Trial Lawyers Association as cited by John Day on his website Dayontorts. It is also the source that we have a generation of trial lawyers who have never been in court. In Tennessee there were only six cases that went to a jury last year for medmal. There were over one thousand that were filed. As the commenter is well aware, these cases are not about juries, rather they are about how much it will cost to defend them. This is where plaintiff attorneys will argue the patient was not aware. Oh, by the way, you order the test, it is denied by the patients insurance and you send them a certified letter that your ordered the test. This by the way still does not stand up as you can see by the SVIMC stated cases.
How do I know all this, I live it every day.
If the med mal problem is due to settling non-neglect cases to avoid the cost of defense, then we are all cowards who deserve to pushed around. Paying extorsion is immoral, as it rewards and gurantees more extorsion.
The “extortion” laws are written by lawyers for lawyers. What is a physician supposed to do?
A great idea is to be vocal, lobby, and hopefully get something like medical courts where judges, not runaway juries, make decisions.
I’m courious about something. if you go to trial do you have to go before a jury? Can you request a judge only to hear and decide the case or a 3 judge decision? I honestly dont know that answer. But, I know that in alot of criminal cases, the defendant can chose to have the judge hear the case rather than a jury.
I also agree that out of court settlements sound like extorsion. What a screwed up legal system we have.
“This is an exact case that was presented.”
So the answer to that question is one. Pretty thin evidence to make your case on. Was it successful, or do you know?
“It is also the source that we have a generation of trial lawyers who have never been in court. “
I have no doubt that’s true with regard to defense lawyers plaintiff’s lawyers in run of the mill PI cases – car wrecks, slip and falls, etc. That is hardly the case with medical malpractice suits however. If for no other reason, because it costs a lot of money to put those cases together and you better be prepared to try them. Do you have any stats specific to them?
“As the commenter is well aware, these cases are not about juries, rather they are about how much it will cost to defend them.”
Nonsense. Because it costs the plaintiff’s lawyer just as much, and if you don’t have a case that’s worth bringing to a jury, why would you spend that money? Do you really think insurers hand over hundreds of thousands because it might cost $20,000 to defend before trial? You must not know much about insurers. Tell me, how many cases have you ever settled with one? Of any kind?
How do I know how insurers work and that you’re full of it? Because I live it, every day.
“The “extortion” laws are written by lawyers for lawyers. What is a physician supposed to do?”
What laws in regard to med mal are “extortion” laws?
Most physicians have no control over whether their cases are settled. They give that power to their insurers. Do you suddenly think that insurers who fight you tooth and nail over every nickel of reimbursement are any different from your liability carriers? That they make money by settling poor cases?
“I also agree that out of court settlements sound like extorsion. What a screwed up legal system we have.”
How are they extortion? If your actions are negligent, why should a patient have to take you to trial to get you to pay?
BTW, in a civil case, either side can request the jury.
So if a medmal goes to trial the physician can request the case be heard and decided by the judge only? Then why all this commotion about juries screwing over doc’s when they could have requested to not have a jury trial?
First, I don’t know why physicians bitch about juries, because juries treat them quite well. I think that’s why their lawyers routinely request a jury.
As for the other, maybe I misspoke, because I meant to say either side can request the jury – if no one does, then you get a judge. but usually one side or the other will want the jury.
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