Defensive medicine

What is defensive medicine?

Defensive medicine is the deviation from sound medical practice to avoid the threat of malpractice litigation.

According to a 2005 study in JAMA, over 90 percent of physicians surveyed admitted to practicing defensive medicine. This can range from “positive” defensive medicine, like ordering unnecessary tests, referring to consultants, or performing unneeded procedures; to “negative” defensive medicine, like avoiding high-risk patients or procedures.

Why practice defensive medicine?

Physicians practice defensive medicine to avoid malpractice litigation. A malpractice lawsuit is the most scarring ordeal that a physician can undergo, both emotionally and financially. There is an expectation that doctors have to be 100% accurate with their diagnoses. A missed diagnosis, whether it’s a 1 in a 100, or 1 in a million case, makes a physician vulnerable to a malpractice lawsuit. However, medicine by nature is an imperfect science, and the expectation of perfection is not realistic, nor possible. There is no test that is 100 percent accurate – an unfortunate outcome can occur even if a doctor practices textbook medicine. A recent study in the NEJM showed that almost 40 percent of malpractice cases were found to be without medical error.

Due to this uncertainty regarding unfortunate outcomes, physicians err on the side of caution and practice defensive medicine. It is much easier to defend the fact that a doctor ordered a test, as opposed to not ordering the test at all.

What are the downsides to defensive medicine?

Defensive medicine is expensive, has no basis in evidence-based study, and exposes the patient to a host of complications. Contrary to popular opinion, more medicine does not equal better medicine.

If a physician is 99 percent sure of a diagnosis, how much more will a patient be willing to pay for that added 0.5 percent certainty? A CT scan costing hundreds of dollars? An MRI costing thousands? Now, there may be some patients who are willing to spend that money for the most thorough workup possible. However, it is not feasible to routinely spend that kind of money to achieve minimal improvements in diagnostic certainty which may not benefit the patient at all.

Defensive medicine is one of the most important drivers in rising health care costs today. There are few reliable studies to back this up. This is because defensive medicine is impossible to quantify. There is a fine, and largely undefined, line separating thorough care and defensive medicine. What one doctor may interpret as a “being cautious”, another may say is defensive. Because defensive medicine cannot be quantified and is so subjective, its impact on the cost of health care has been minimized and under-publicized.

The practice of ordering extra tests is also bereft of evidence. There are no studies suggesting that ordering PSA screening tests saves lives from prostate cancer, or ordering routine abdominal CT scans saves lives from appendicitis. Is relying on the evidence good enough? The answer is no. The standard of care used in medicine cannot be applied to the courts. Standard of care varies from jury to jury.

Take the case of Daniel Merenstein. Major clinical guidelines, including the American Cancer Society and the American College of Physicians, suggest that the physician discuss the pros and cons of PSA screening tests with the patient. Since there is no evidence that this test saves lives, and may in fact cause damage by leading to unnecessary prostate biopsies, it is recommended that the decision of whether the test is ordered be shared between the doctor and patient. Dr. Merenstein did just that, and documented the discussion appropriately. Unfortunately, the patient later went on to develop late-stage prostate cancer, and sued Dr. Merenstein and the hospital for not ordering the PSA test. Citing the clinical guidelines of the ACS and ACP did not help – the hospital was found to be at fault. Again, it is much easier to defend the fact that a physician ordered the test, as opposed to not ordering the test at all.

Many would think that “the more tests, the better”. Nothing could be further from the truth. Tests themselves have their own risks: ranging from radiation exposure from CT scans to serious complications like bleeding and infection from needle biopsies.

Since no test is 100% accurate, unnecessary testing can lead to “false positives”. This is defined as having a positive test result in the absence of disease. False positives lead to progressively more invasive tests, which may eventually lead to a non-dangerous diagnosis, or even nothing at all. As the tests become more invasive – like a needle biopsy or cardiac catheterization – the complications become more dangerous. Exposing patients to these unnecessary complications, for the sake of avoiding malpractice litigation, is bad medicine.

What can a patient do to help curb defensive medicine?

A patient should understand why a test is being ordered. Ask questions. How necessary is the test? What diagnosis are you looking for? What are the risks of not doing the test? What are the risks of the test itself? Understand that the goal of perfection in medicine is impossible, and that simply ordering more tests is not necessarily better medicine.

How can defensive medicine be reduced?

Obviously a difficult question, since it is a difficult entity to even quantify. The focus of the question is, “What does the physician want to avoid?” The answer of course, is the ordeal of malpractice litigation. Even if physicians do win the majority of malpractice cases that make it to trial, the mere process of a malpractice suit is tremendously scarring. Remember, the vast number of cases are settled, never reaching a jury. And the solution is not simply, “practice better medicine” or “make less mistakes”. Keep in mind that almost 40 percent of malpractice cases do not involve medical error. Unfortunate outcomes despite textbook medicine are a fact of life – that is a hard truth that one has to accept.

Some have suggested that capping malpractice awards, no-fault insurance, arbitration, or health courts as approaches to curb defensive medicine. Although I suspect that these options will help curb defensive medicine, the probability of such sweeping reforms happening in the near future appear minimal.

A simpler way would be to have clinical, evidence-based, guidelines globally applied to malpractice cases. That way, standard of care would be more consistent, and not vary from jury to jury. It will lessen the impact of “hired gun” experts, who can support whatever standard of care is convenient to the lawyers. Doctors can then focus on practicing evidence-based medicine, confident that the standards they are held to in the community, will be the same in the legal world. Only when that confidence is gained, will defensive medicine start to decline.

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  • Anonymous

    Kevin, you miss several important questions:

    1. Does defensive medicine actually work?

    2. If you explain the risks and what you want to do to the patient, and they still want the test, is it still defensive medicine?

    3. While physicians will say in an anonymous setting that they practice defensive medicine, how many will admit that they are billing or ordering tests that are unnecessary? If they won’t, how can we know it’s defensive medicine?

    4. You say: “A simpler way would be to have clinical, evidence-based, guidelines globally applied to malpractice cases.” So why don’t physicians create them?

    5. Not a question, but this claim: ” Remember, almost 40 percent of malpractice cases do not involve medical error”, is false.

  • Anonymous

    Also, you routinely cite the Merenstein case. Did you read the transcript of the case and review the records, or are you just taking one side’s word as to what happened?

    If it’s the latter, do you believe that’s a good way to diagnose problems?

  • Diora

    Actually, I liked Kevin’s post in that it a) clearly explained risks of testing – although mention of incidental findings and potential for overdiagnosis would be nice. b) answered a question many of us want answered: “what a patient can do”.
    I think 1. in the first post is not important because what is important is the perception that is works is more important.
    But that is just an unsubstiated opinion. I’ll let doctors answer the rest of the questions.

  • Elliott

    Not only does Kevin distort the Merenstein case regularly (who was dropped from the case and paid not a penny), but he also ignores the growing body of evidence that PSA does work. The USPTF recommendation is a bit moldy at this point. The last major study that showed no effect was the Northeastern VA study from authors who had long been hostile to the PSA test. Most of the other studies published since then that I am aware of have shown effectiveness. Not only that, treatment effectiveness has increased over the last 5 years. He ignores that other major players have contradicted the USPTF recommendation.

  • Where are the real clinicians?

    Risk tolerance and clinical necessity for testing is going to vary based on individual cases. General guidelines should not be applied to the specific with some sort of blanket immunity for doing or not doing the best for any individual patient.

    This is, in fact the worst of evidence based medicine, the idea that treating the herd appropriately is more important than treating the patient appropriately.

  • Diora

    but he also ignores the growing body of evidence that PSA does work.
    Would you care to provide links to relevant studies? Real studies, not journalist interpretation of them or reviews on websites.

    Also, keep in mind that the only study that proves anything is a RCT that shows mortality reduction in the screened group. Survival after diagnosis is meaningless, that is to those of us who understand lead-time and length bias which I don’t believe you do.

    By the way, have you read Orac’s explanation of the complexity of early detection. Kevin posted a link earlier this week. Very informative; can also illustrate why the evidence that shows survival after diagnosis or percentage of cases found in earlier stage doesn’t prove a thing.

    USPSTF guidelines are not muddy at all. They recommend informing you of benefits and risks and letting you decide. But I guess you don’t want the responsibility of making your own decisions. Personally, I’d like to make my own decision even when test is recommended, but to each its own.

  • Elliott

    I await ORAC’s explanation as to the complexity of using mortality as your only endpoint in population studies. Also, the single PSA test has its limits and, it seems to me, that the more current thinking is that the PSA test should be viewed in context including past results. Well, if you never get the first one then you have no trend to look at.

    P.S. do your own research.

  • Elliott

    Addendum: I said “moldy” as in the fact that they are from 2002 and have not been revised unless I missed it in which case crow will be served for dinner.

  • Diora

    Elliot, so where are your studies…

    Using mortality data from randomized control studies (not population studies) as the definitive measure of test’s effectiveness is not “mine”.
    It is an accepted practice. The reason USPSTF (or NCI btw) hasn’t revised its guidelines is because no new data from randomized control trials is available. But feel free to provide it.

    I still don’t see your studies. As far as doing my own research, I am not the one claiming the latest evidence. When I cite evidence, I usually have links. In this case you are the one citing evidence, so the ball is in your court to provide proof of what you claim.

  • Elliott

    Diora, had you read the USPTF recommendation, you would know that the only RCT they could cite showed a benefit, but was discounted for methodology flaws. The RCT’s that will give us a definitive answer are ongoing.

  • Anonymous

    “do your own research”

    Thanks for the update that you don’t know what the heck you are talking about elliot.

  • BarBarA

    This interesting because I believe my former doctor practiced defensive medicine (he is former because he committed suicide, which is very sad).

    Glad I found your blog!

  • Anonymous

    “…but he also ignores the growing body of evidence that PSA does work.”

    I will have to agree with Elliott on this one!!!

    Prostate cancer mortality is finally on a downward trend; however, large RCT studies are still pending. Prostate cancer is slow growing, thus the data takes over 10 years to mature. We may end up with a prostate biopsy for anyone with a PSA above 2.0 that is younger than 65 years old. I am aggressive and usually recommend prostate biopsy, especially in the young patient with a PSA >2.0. The morbidity is nearly zero and the pain of biopsy today is much improved. I use a peri-prostatic block and oral valium in the office and the patients do very well. Most of my patients prefer to know rather than keep following the PSA every year.

  • Anonymous

    Of course you agree with Elliot because you are a urologist and your organization’s guidelines rec screening PSA. That fact is though ACP guidelines due not rec screening PSA. It is a real point of contention and confusion. There is no obvious right answer…..yet

  • Anonymous

    I appreciate the questions suggested when a doctor suggests an invasive test, out of the blue or at least without any reason except that it’s a good one for someone older to get. I was so taken aback when my doctor (a new one as I’ve just moved across the country) did that that I just said ‘no, thank you’. But it makes sense to question his reasoning in a little more depth. I understand docs practicing defensive medicine but as a patient the practice sounds iffy, at best, for my health.

  • Anonymous

    By the way, I really like this new doc, and I do plan to ask him about that test he suggested.

  • Anonymous

    Sometimes I wonder about Kevin’s reasoning skills. How do you square the first sentence with the ones that follow:

    “Defensive medicine is one of the most important drivers in rising health care costs today. There are few reliable studies to back this up. This is because defensive medicine is impossible to quantify.”

    We can’t define it, but it’s definitely driving up costs significantly?

  • Diora

    Anon at 1:43, and you also have a magic way to figure out which cases are overdiagnosis? You also don’t have your patient have a right to be informed of this potential serious risk?

  • Anonymous

    “There is no obvious right answer…..yet”

    Hopefully we will have an answer soon and put this finally to rest. So far the data is leaning towards early PSA screening and earlier biopsy.

    “Anon at 1:43, and you also have a magic way to figure out which cases are overdiagnosis? You also don’t have your patient have a right to be informed of this potential serious risk?”

    I agree that cases with well to moderately differentiated cancer in a single core of the biopsy in a young patient is a difficult situation to deal with. I strongly offer watchful waiting to a select group of my patients and some do choose this option. Of these patients, approximately half of them have seen a PSA progression and then went on to treatment and the other half are still watching their PSA. Unfortunately, prostate needle biopsy underestimates the grade of cancer in nearly 30% of patients. I inform all my patients about the potential for over treatment and the fact that they may have an “insignificant” cancer. However, lately, I have been diagnosing more frequent moderate to poorly differentiated cancer in younger and younger patients. A few years ago, I found a Gleason 3+3 cancer on biopsy in 2/12 cores in a 36 year old African American with a PSA of 7. After much discussion, he opted for a radical prostatectomy. His final pathology revealed Gleason 4+4 with extracapsular extension of the tumor beyond the prostate. His PSA recurred 6 months later. He then received radiation. Currently he is disease free 5 years out and has complete urinary continence (wearing no pads) and has erections with the aid of viagra. Thankfully, he chose treatment rather than watchful waiting. Cases like these and many others keep me going everyday, but you are right medicine is full of gray areas. That is why it is called the “art of medicine” and it is not a pure science. I suppose that is also why we go through 4 years of medical school and for an urologist a 6 year residency. I do have to admit though, after 6 years of practicing after residency, I am still learning every day.

  • Anonymous

    This will almost certainly change over the coming years, but as a medical student, when I think of clinical situations where malpractice risk rises to the top of my consciousness, it isn’t the stuff where there are virtually unchallenged gold standard practices. The cases that worry me are the ones where the outcomes are serious and every professional and government body has a different take on what to do. Those are the cases where if I follow ACP plaintiff’s counsel can just hire someone from urology or GI or whomever to paint a picture that following ACP or USPSTF or whomever you find most convincing was still negligent care.

    I have a graduate degree in health law and I understand that my chances of even having to take such a case all the way to a jury verdict are low and chance of actually losing while adhering to the guidelines of my professional society are even lower, but what I see in my professors and mentors who have been sued at one time or another makes the prospect so terrifying that when it comes time to discuss options with a patient and they ask for my view I might very well abandon all the EBM in favor of ‘peace of mind’ (the patients and mine).

  • girlvet

    I was just curious MDs do you financially profit from ordering more complex testing? Overordering of tests has gotten to the point of ridiculousness.

  • beajerry

    Great post!
    You could easily make it into a book.

  • Chuck McKay

    My wife’s former gynecologist carried no malpractice insurance.

    He told each new patient, “I have no insurance, and this place is mortgaged to the hilt. If you ever decide to sue me, there’s nothing to win.”

    It may be coincidence, but he retired a few years ago never having been sued by a patient.

  • Anonymous

    Highly contested debate, obviously. Many of our patient’s do not have scientific backgrounds and trust us to make the right decisions for them. Many of them get their “information” from Googling the net and come to us to decipher or filter the info for them. As for the CBS story, why did the patient go to the ED if it was “just an ovarian cyst”? How likely would it have been that her father would have been furious if they hadn’t done any tests on her at all, instead ruling out ectopic appy UTI…, sent her home with pain meds and had her follow up with her GYN the next day? It’s always easy to Monday morning quarterback the situation and say they “should’ve would’ve could’ve”. I try to discuss my findings and DDx with each patient before ordering any tests from strep swabs to MRI’s, but more often than not, the patient feels they have not been served properly if no tests are ordered at all. Remember we are in the era of rapid service and rapid treatment. Patients expect to have answers to their problems RIGHT NOW and don’t expect to have to wait for anything. Hence we order a test to give them that answer to the level of their satisfaction. We have to CYA so much nowadays that it can seem we are not directing the patient’s care, but they are guiding us as to what they want. The fear of litigation drives A LOT in Medicine.

  • Anonymous

    I’m an aspiring doc and I must say I am so ashamed of medical professionals and how they are acting with this issue of defensive medicine and tort reform. The evidence says to the contrary from the CBO and GAO… You cite weak survey studies to line your pockets and remove jury rights to patients. It’s patently grotesque. And the comment from Anonymous (no relation) on April 4, 2007 at 9:28 am is so incredibly right. You miss so many important factors in this issue. You are blinded by your own greed and it disgust me. You should be ashamed of yourself. You are a praciticing physician/scientist… You should know how weak surveys are as compared to the fiscal studies from the CBO and GAO. Anecdotes are anecdotes. I will continue to retain my opinion that the doctors aligned with the AMA sicken me to the point where I question if I want to enter this profession.