Defensive medicine op-ed in the USA Today

Defensive medicine op ed in the USA Today

Welcome new readers, and thanks again to the USA Today for publishing my op-ed this morning: Wasted medical dollars.

Defensive medicine
is a popular, if not polarizing, topic on this blog. The CBS Evening News paid attention to this issue last year, and hopefully my piece can continue to highlight this oft-ignored phenomenon.

I invite you to take a look around, and see what this blog is about. You can read my takes on current and relevant health care issues, as well as previous op-eds on the primary care crisis and Medicare payment cuts.

Disagree? Feel free to send me a reader take, or a letter that I can publish (anonymously if you wish) here on the blog.

Thanks for stopping by, and I appreciate your readership.

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  • Anonymous

    Great artical. I practice private practice primary care. I hate to see the waste involved. I also have done expert witness malpractice work, and nearly every case at least in part uses the argument that not enough testing was performed. No matter how far removed from medical reality, it is an easy point to make to a jury that if a test had been ordered surely that would have saved a bad outcome

  • rlbates

    Great work, Kevin MD! Keep it up!

  • The Happy Hospitalist

    Great story Kevin. Eventually, someone will listen.

  • Dr. A

    Kudos to you!

  • Michael End

    Kevin,
    You say “Until the system is perceived as being fairer…” In reality, the deck is stacked against the patient in a medical malpractice trial. Philip G. Peters, Jr., wrote a well-researched article in 2007 entitled “Doctors & Juries” published in the Michigan Law Review (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=929474). Professor Peters came to the conclusion that the bias of juries in medical malpractice cases favors doctors, not patients. If a doctor does what he or she should do in trying to diagnose a problem, the overwhelming probability is that the doctor is not going to lose a malpractice case. Contrary to popular belief, lawyers, generally, do not sue doctors unless the doctors have not performed within the atandard of care. Lawyers can ill afford to lose the hundreds of hours of time and the tens of thousands of dollars needed to pursue a case if the lawyer is going to lose the case. I am a lawyer. I have yet to see evidence of defensive medicine. Instead, I have seen a case in which the emergcncy room doctor refused the request of the mother to test her five-year-old daughter for diabetes after the doctor the night before had suggested such a test because of the child’s frequent urination and feeling sick. With the child now vomiting, the emergency room doctor did not want to do a finger-stick test that would have cost the hospital 54 cents to do. The girl died two days later of diabetic ketoacidosis. Or the doctor who did not test for either deep vein thrombosis or pulmonary embolism for the 32-year-old man who went to the clinic three times in eleven days with calf pain and severe shortness of breath. He died two days later of the pulmonary embolism that was causing his shortness of breath, leaving a wife and three children under the age of five. Or the case in which the hospitalized patient fell out of bed and fractured his hip. The doctors did not listen to his requests that they get an x-ray of his hip, despite his complete inability to walk. It was not until he was transferred to another hospital five days later that an x-ray was taken and his fracture diagnosed. I had to take all of these cases to trial. The jury awarded the parents of the five-year-old child $3 million, but because of caps on damages, the award was reduced to $300,000. My firm spent 1,750 hours of time and $73,000 on the case. In Wisconsin, where I practice, there are hardly any lawyers willing to take medical malpractice cases because they are so time-demanding, expensive, and difficult to win. Please tell the doctors you know that things are really not as bad as what they think.
    J. Michael End
    End, Hierseman & Crain, LLC
    600 N. Broadway, Suite 300
    Milwaukee, WI 53202
    (414)224-1220
    mend@ehclaw.com

  • Anonymous

    An excellent piece, Kevin.

    1. I have heard many doctors say that one should always question whether a test/procedure etc. is necessary. However the reality is that doctors get offended when you question their recommendations. Unless you know that doctor well and know that s/he can handle this, one is risking that doctor dismissing them from their practice. Finding another doctor is difficult in today’s world and very labor intensive.

    2. I know that y’all love to bash the lawyers but people who have been injured by the medical system do not have any choice but to sue. Many medical boards are not receptive to patient complaints and at least where I live, it is impossible to find out if a physician has been disciplined.

  • The Happy Hospitalist

    How does one explain being sued for performing a rectal exam in a trauma patient.

    How about the doc who was sued because a cracked out druggie refused to let the doc remove a femoral central line to prevent DVT. When the patient developed a DVT, the patient sued anyway and the lawyer, who took the case, bragged to other lawyers at a poker game about how all he needed was a sympathetic jury and a distraught patient to cash in.

    “In Wisconsin, where I practice, there are hardly any lawyers willing to take medical malpractice cases because they are so time-demanding, expensive, and difficult to win”

    I think that’s wonderful. Congratulations Wisconsin. The rest of the country should follow suit.

    The reason you don’t see defensive medicine is because for every CT scan not done to prevent missing a PE or for every xray not done to prevent missing a hip fracture or for ever blood sugar not done to prevent missing DKA, there are millions of CTs, millions of xrays and millions of blood sugars done to prevent missing low probability events.. You are experiencing a very large bias in your patient population because you only see the patients that defensive medicine didn’t find.

  • Anonymous

    To the lawyers posting that the deck is stacked in favor of physicians: so why are malpractice costs so much higher in the US than in other countries?

    The only way our current system is fair is if you are legitimately suggesting that United States physicians are vastly more incompetent than our peers in every single other Western country. If that is what you are saying, then come out and say it. Because if we are not committing malpractice three times as often as physicians in other countries, how can getting sued three times as often not indicate a broken system?

    The answer is that malpractice incidence is the same across countries. The difference is that the US tort system levies no penalty for losing beyond what it costs the plaintiff to file a suit, no matter how useless the case.

  • Neumed

    Great article, Dr. Pho.

    In response to Mr. End: The burden of proof is always with the plaintiff. That’s a legal principle, not a medical one.

  • Anonymous

    >>If a doctor does what he or she should do in trying to diagnose a problem, the overwhelming probability is that the doctor is not going to lose a malpractice case.

    If the doctor did what he should do, the “probability” should be zero. This reflects the mindset that bad outcome=malpractice.

    Never see defensive medicine? What a laugh. You see it every time a doctor drops emergency room coverage, an OB/GYN drops obstetrics, a neurosurgeon drops intracranial work. Or when the kid with proven diabetic ketoacidosis showed up in the ER and I flatly refused to admit the child. Ship him out.

    In addition to the extra procedures that happen whether or not one chooses to accept it (try taking your hands off your eyes), defensive medicine includes not doing the high-risk work in the first place.

  • DDx:dx

    “Because if we are not committing malpractice three times as often as physicians in other countries, how can getting sued three times as often not indicate a broken system?”
    Of course the rate of mistakes is the same. But we are not talking about a system that is addressing mistakes or trying to correct them. We are talking about a system of REWARDS. And costs. And future heathcare costs are the largest part of any reward.
    I don’t see all you physicians WHINING about the “injustice” of malpractice seeing the big picture. The reason other countries sue at a third of the rate is because the REWARD(for plaintiffs and lawyers) is less, because the future healthcare costs of “mistakes” are covered….
    Entrepreneurial docs want to eat the cake and have it too. High reward + no risk. Sorry, if you want business medicine, the risks are going to be real. Getting sued being a small but real one.
    I sure wish we had a different focus, as physicians interested in changing a broken system, than blaming the lawyers. It’s such a trite joke Shakespeare even pulled it.
    IF malpractice is so evil, single payer/universal coverage will solve that problem. But noooooo…Can’t consider that evil…. I believe, like the patient with cancer complaining of erectile dysfunction, we, professional physicians are not paying appropriate attention to the big and important issue. The injustice of the system we are such a powerful part of maintaining.

  • Anonymous

    The medical costs are economic damages. No tort reform plan that I have seen ever tries to limit economic damages. The limitation is noneconomic damages.

  • Anonymous

    Happy Hospitalist –

    If this query

    “How does one explain being sued for performing a rectal exam in a trauma patient. ”

    is related to the recent recent well-publicized instance

    and is not asked rhetorically,

    1. That patient refused the rectal exam. He was sedated and examined despite his refusal.

    2. The patient ( and his attorney on his behalf) stated a belief that the exam was done to humiliate and punish, in retaliation for the patient’s uncooperative behaviour and striking of a physician.

    3. Rectal exam in potential spinal trauma cases is controversial as to utility. There are many papers out saying the practice is not helpful or useful.

    The defense is of course, that the patient was, as his confused thrashing would suggest, in a possibly compromised mental state and unable to intelligently refuse any emergency procedure, and that despite any controversy in the literature, the examiner(s) had a good faith belief that the digital exam would provided useful information and was at this time, needed to evaluate this particular patient, and had nothing to do with punishing and subduing the patient in retaliation.

    The hospital and physician prevailed at first trial.

    However, many competent patients might refuse this exam, and have a right to do so, if competent.

    I have personally read persons purporting to be ER physicians advocate the use of rectal exam as a tool of humiliation and punishment, so it is reasonable to presume that this is a possible event, especially in light of the fact that the patient struck someone examining him.

    ER physicians might consider the utility of this exam in any evaluation of spinal injury. The current consensus seems to be that it’s usefulness is limited enough to discontinue its routine use.

    In this case the benefit of the doubt should and did extend to the persons examining the trauma patient.

    I myself think, but for the belief on the part of the patient and his attorney that the test was actually performed as punishment, there probably would have been no suit for unpermitted touching, even if the patient believed the test had been performed tortiously against his will.

  • Happyman

    defensive medicine is definitely a factor, but I think another simple reason for overtesting is often ignored – MONEY! MOOLA! CHA-CHING!

    This is why EVERY patient i send to a cardiologist gets an ANNUAL echo, stress, holter.

    EVERY patient who sees GI (even for abnormal LFT’s) get’s an upper & lower endoscopy. Usually I don’t even get an answer to the original consult, but rather “refer back to medicine”.

    And patients just eat up the “necessity” of frequent testing as “more medicine is better medicine”. There simply is NO dis-incentive to overtest. And specialists are crying? Yeah, all the way to the bank.

    I think this plays a MUCH larger role than defensive medicine, in terms of cost. If we want to save money and still cover our asses, just document why a test isn’t necessary, e.g. “patient had nuclear stress test 8 months ago which showed no reversible ischemia”.

    But that won’t happen, because the cardiologist makes his monthly range rover payment off of ONE stress test.

  • The Happy Hospitalist

    anon 0312, and the next trauma patient who refused a rectal and later found to have a spinal chord injury will sue that the doctor should have known they weren’t of sound mind when they refused,

    My point is that any one can sue any one any time without any recourse of action. Sue me if I do the rectal. Sue me if I don’t.

    Gosh, as far as I’m concerned, emergency medicine equates to military medicine. If physicians are going to be second guessed for every split second decision they make, the ememrgency system would be bogged down and it would be an issue of national security.

    oh, wait, the system has already been bogged down by ridiculous lawsuit lotto.

  • The Happy Hospitalist

    happyman, it is yet another issue and I have blogged about that an a regular basis. It’s the profit gradients third parties have created within field of practice and within procedures of practice.

  • igloodoc

    Wow. A rectal exam is punitive on a “competent” head trauma patient in a trauma center.

    I propose that a judge be added to the trauma team to rule on competency while we resuscitate a patient. Hopefully the judge will not retire to make the decision, because preforming CPR for that length of time may have a deleterious effect on the patient.

    (And what if the judge rules the patient was competent in refusing CPR before his heart stopped and the competency decision was rendered?. A punitive rectal exam for all the doctors and staff?)

    And you wonder why doctors become suicidal.

    No medical malpractice crisis here!

  • Anonymous

    Well, no, the patient sued, and LOST. As is apparent in his case, he should have – it’s clear the benefit of any doubt is extended to the persons who examined him.

    However, it’s probably not true that all trauma patients should be presumed incompetent, and should lose the right to refuse a rectal exam or other testing.

    And a sort of side issue is, the rectal examine really is of limited utility, if the evidence of that utility is reviewed. There are other ways to evaluate spinal trauma that will probably be a part of any thorough examination, when there is a high index of suspicion of spinal trauma.

    Now, what if the doctor had said within the earshot of many ” I’m gonna teach this SOB a lesson”, or on previous occasions announced his intention to do unecessary rectals on any drunky-druggy-combative-irritating patient, to educate them of the risks of arriving in his ER with an attitude.

    Obviously, the law has to allow remedy. The guy in this case got a chance to argue, and appropriately lost. I can’t say that’s a malpractice crisis, or a legal one.

  • Anonymous

    I am doctor, in reply to the lawyer comment above.

    I was sued by a lawyer for a patient that came into the er with vaginal bleeding. She was a drug addict and while we were waiting for a operating room to open up. For some reason the gun shot needed to go first, she pulled out her own IV and walked out of the ER wearing the ER gown.

    I then was sued because 2 months later she developed a pelvic infection. Really that was my fault?

    Yes I won the case, but that was ridiculous and how much time was spent by me and 4 other faculty doctors to get that case to be done was ridiculous and none of it was compensated by the drug addict or the lawyer who sued.

    I appreciate that the cases you took were not like this, but I see a lot more from the other side, and I understand that there are a lot of lawyers, and they all need to work, but some of these cases need to have punitives done to the person bringing them. ( bit of a run on sentence there, but then I don’t have to write briefs)

  • Anonymous

    Why not just make lawyers pay for any fees incurred if they lose lawsuit. I think that would really make them think twice and think extra about the merit of the case.

    And why would lawyers be against this? Probably for money. The are hired mercenaries and know they can sully and bully a physician by threatening a lawsuit and his/her reputation, forcing or encouraging a settlement.

    I can’t think of any good argument that a lawyer could pose against this idea. It is self-regulating…. Wait, lawyers don’t self regulate! They protect each other just like they claim physician do.

  • Anonymous

    I would not wish the ordeal of a lawsuit on anyone… even a lawyer. You bravely tell yourself that this is the cost of doing business, and you just stepped on a mine in the minefield. But you know that your entire reason for being is under scrutiny. You stand accused of hurting a person you have sworn to protect and help. And you have absolutely no control of the situation, and very little input into the situation. How can one quick decision made in a flurry of decisions on a hectic night in the ER threaten to take away your house, garnish wages and destroy you professionally and personally? You hope that if there is an award it will be within your malpractice limits.
    Are my lawyers going to go to lunch and between bites of roast beef decide I need to settle when I didn’t do anything wrong? Why does it take so long? Will the mandatory medical license review end up removing my license? Will I be reprimanded?
    You are instructed not to talk to anybody about it. Just as well. Better no one knows of the shame. I can easily see why ending it all would be easier. One convenient accident and it all goes away.

    And this is how I spent a year of my life. In hiding, afraid of patients and people. Afraid of special delivery letters and unknowing people asking me if I am Dr X, for that is how I was served the papers. I became a recluse. The marriage and family suffered.

    Why? The plaintiff alleged that even though I diagnosed the problem, and I took the proper steps to treat the problem, I just didn’t do it fast enough. Despite moving the plaintiff upstairs ahead of sicker but stable(for now) patients. Despite calling every other hospital in the area for help. Despite the fact the patient was only in the ER for 4 hours total, in a place that sees 200 a day and is at best short staffed, has a 100% occupancy, and other patients were admitted and waiting for up to 18 hr.

    And after a year of this torture, I was dismissed from the lawsuit.

    After it was over, I was angry. I tried to find a lawyer that would sue the plaintiff and their lawyers, but I ran into that brick wall of brotherhood that all you lawyers have.
    (and accuse us of having). No one would take the case. Even if I paid cash for their services!!

    So, I have one question. While you lawyers are galavanting around claiming to selflessly protect patients and rights and such, who protects me from you?

  • mythago

    The “brick wall of brotherhood” is a doctor thing, not a lawyer thing. There are plenty of lawyers whose specialty is legal malpractice (i.e. suing other lawyers). We file bar complaints and ask for sanctions against opponent lawyers, too.

    I get that you’re angry, but what did you think you were going to be suing for? “I want to punish them” is not a basis for a lawsuit, nor is “somebody sued me”. The lawyers who turned you down didn’t do so because of omerta; they did so because they did not believe that you had a case that could be won.

  • mythago

    On “economic damages”, what that means is that people who do not make a lot of money, who are elderly or disabled, or who die fast without a lot of expensive care are, bluntly, fair game.

    Let’s say that a surgeon comes into the ER drunk and tries to perform a routine gallbladder removal on your eighty-year-old with a pair of forceps. He kills her. I hope that we can all agree this is malpractice, right?

    So you go to a lawyer to sue the bastard. Guess what? He’ll send you home. Because you didn’t lose any money on Grandma; your only damages are the sentimental loss of her companionship and her presence, aka “non-economic damages”.

    And your lawyer operates on a contingency fee. That means he has to front your lawsuit until there is a recovery–a FINAL recovery, not just a verdict in your favor. The cost-benefit analysis doesn’t make it worth his while, and you sure can’t afford to pay him out of pocket for years of lawsuit.

  • Anonymous

    If the surgeon really did come to the ER drunk and grossly deviated from the standard of care, sounds like the case is a slam-dunk win. So if the lawyer really won’t take the case it’s just greed.

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