This statement is just laughable. How is it that attending depositions, giving depositions, meeting with lawyers, retaining personal counsel do not cost any time or money?

In your alternate reality, all of your conclusions make perfect sense.

Being sued and being liable are two different things.

“While I (and probably many physicians) define the risk as the risk of being sued in the first place, regardless of the outcome. So it doesn’t matter if a case is dismissed in summary judgement, for example, because to the physicians, the bad outcome has already occurred – e.g. they have been served.”

So because you are handed a lawsuit, you have changed how you treat your patients? Even though you’ve lost no money at that point and minimal time? And we should make policy based on that decision?

That’s the failure to adequately assess the risk I’m referring to. Your response is out of proportion to your risk. What’s more, you’ve got no evidence that your response mitigates your risk.

If you were looking to mitigate your risk, you’d do the one thing nearly every study on this issue says you should do – improve patient communication. But you order tests they don’t need.

This just makes no sense. Some one (licensed to practice medicine) has to order the test. If that is not the case, then who is denying CT scans?

How would the physician be liable if the test is done against his advice?

You mean physicians are never sued because a patient failed to follow advice? Let me give you the numbers of a few plaintiffs attorneys I recently met so you can tell them to lay off…

…the ability of doctors to analyze risk on this issue is completely out of whack.

It occurs to me that a lot of the disagreement on this issue is probably semantic. It seems from this and several of the above posts that the author (presumably an attorney?) is defining the risk in question as the risk of a judgement against the physician or settlement in favor of the plaintiff. While I (and probably many physicians) define the risk as the risk of being sued in the first place, regardless of the outcome. So it doesn’t matter if a case is dismissed in summary judgement, for example, because to the physicians, the bad outcome has already occurred – e.g. they have been served.

Buy hey, you wanted an example of someone who did something defensively, which I did, and I admitted it. But I am even wrong about that – you know better what my motives were than I do, apparently.

Spoken by someone who has never practiced clinical medicine

How would the physician be liable if the test is done against his advice?

You, like Kevin, are seeing boogeymen where none exist. For some reason, the ability of doctors to analyze risk on this issue is completely out of whack.

And why should the standards of care be compromised based on the payor? What if a complication of the defensive testing arises? Is the patient who is “paying for it anyway” going to hold the physician harmless? In what other industry is the seller, having recommended against a product, held liable to the buyer who is injured when misusing it when they buy it anyway?

This just illustrates how out of touch physicians are from the free market. In any other industry, if a customer, after being told they don’t need a product and why, still wants to buy it, they are given it and both sides are happy.

You shouldn’t be introducing standards, your lawyer should. Unless you’ve read the rules of evidence that is.

Patient requests MTHFR gene test. This mutation is associated with increased coronary risk and hypercoagulability.

I have already admitted that there is nothing that the result of the test is going to change.

No look into the future… he develops a pulmonary embolism or an MI.

Plaintiffs Attorney: Doctor, is it true that the patient informed you of his significant famliy history of MTHFR mutation?

Me: yes

PA: Did you consider testing him for the MTHFR mutation?

Me: Yes, but I recommended against it.

PA: And the patient had a complication of this dangerous disease that you refused to diagnose?

So I tested him. It was easier than trying to convince a lay jury that additional information was not useful.

As for introducing standards, I tried. It is not difficult to say “here it is…”. It is difficult to avoid boring a jury while vetting the validity of the indiscernaible journal pages being tossed about. This is from my personal experience, the details of which I would be happy to share but are long and probably not interesting to blog readers.

“Now you tell me when you find an attorney who will admit under oath that he pursued a malpractice case that had questionable validity, but who thought he could sell it to a jury anyway.”

Show me the case and maybe so. The bar journal is full of disbarments and suspensions of a similar nature. Although what you call “questionable validity” might not be something everyone else agrees with.

It’s not difficult to introduce those things at all. Don’t know where you got that info.

Now you tell me when you find an attorney who will admit under oath that he pursued a malpractice case that had questionable validity, but who thought he could sell it to a jury anyway.

I don’t think I answered the question you were asking, but I did answer the question that you typed. I think there are plenty of standards that plenty of practitioners (in all professions) are ignorant of, and they replace them with their own ideas, and testify about them. It is difficult to introduce journal articles, position papers, and the like, at trial.