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Emergency physicians and the choice of overtesting or lawsuits

Kevin | Physician | June 29, 2010

Emergency physicians are in a dilemma.  Risk missing a diagnosis and be sued, or be criticized for overtesting.

Regular readers of this blog, along with many other physicians’, are familiar with the difficult choices facing doctors in the emergency department.

The Associated Press, continuing its excellent series on overtesting, discusses how lawsuit fears is a leading driver of unnecessary tests.

Consider chest pain, one of the most common presenting symptoms in the ER:

Patients with suspected heart attacks often get the range of what the ER offers, from multiple blood tests that can quickly add up in cost, to X-rays and EKGs, to costly CT scans, which are becoming routine in some hospital ERs for diagnosing heart attacks …

… and the battery of testing may be paying off: A few decades ago insurance statistics showed that about 5 percent of heart attacks were missed in the emergency room. Now it’s well under 1 percent, said Dr. Robert Bitterman, head of the American College of Emergency Physicians’ medical-legal committee.

“But you still get sued if you miss them,” Bitterman added.

The AMA’s idea of providing malpractice protection if doctors follow standardized, evidenced-based guidelines makes sense in these cases. Furthermore, it can also help reduce the significant practice variation that health reformers continually focus on.

Combine that with patient demands for tests. As the Angela Gardner, president of the American College of Emergency Physicians notes,

“Our society puts more weight on technology than on physical exams. In other words, why would you believe a doctor who only examines you when you can get an X-ray that can tell something for sure?”

Refusing those demands creates unhappy patients. And concern that unhappy patients will sue remains the elephant in the emergency room.

Patients can help by asking whether the proposed test is really necessary, and what the risks are if the test isn’t done. Better yet, specifically asking how the test will change a doctor’s treatment plan can be a way to start a meaningful dialogue about the pros and cons of testing.

I understand that that may be difficult to do in the harried setting of an ER, but taking a few minutes to come up with a shared decision may help reduce unnecessary tests, and perhaps, a physician’s malpractice risk.

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Tagged as: Emergency, Hospital, Malpractice

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  • EmViCa

    I strongly believe that one of the most important steps to improving health care in this country is patient/public education. This step will likely prove itself to be an extraordinarily difficult one.

    Motivating people to be involved in their medical care and educating them as to why it is important to take an active role in their health, and – possibly more importantly – how it is beneficial to them personally, is just the first step. How does one overcome the low health literacy rate(particularly in government funded health insurance programs) to bring the population to a foundation to even start further education? Is it even realistic to expect any challenge to the appropriateness of the technology we put so much faith in will be accepted? I’m quite pessimistic of this all, to be honest, and I wish that wasn’t the case.

    And… where the heck is any mention of -meaningful- public participation efforts, patient education, or outreach on any significant level in the new legislation?

    Now I’ve just bummed myself out for the rest of the morning.

    • jsmith

      You are correct to be pessimistic. I’ve doctored for 21 years. In the comfort of home or in talking shops like this one, “education” and “personal responsibility” come up. Mostly pretty words. In reality, well people don’t pay much attention and sick people are in no psychological condition to think about long-term costs and benefits.
      This is simply how human beings are constructed.
      The best way to improve public health is relentless propaganda by media stars, especially with young people. Propaganda in women’s magazines can also help. (Katie got a colonoscopy, and so will I. And so will my husband.) Women are main drivers of family health behavior.

  • John Moorhead

    This is not only common in practice, it is pervasive in teaching hospitals creating a ‘culture’ which is established in residency. A long trend which will not be changed by anything but a total revamp of the tort system as it applies to med mal.

  • Marc Gorayeb, MD

    Nothing focuses a person’s attention and sharpens his or her decision-making like having some financial skin in the game. I can guarantee that the conversations we all want to have will take place if the patient has to share the cost of the testing with the insurer. There is an aspect of human nature at work here that the free-care-for-all crowd just can’t accept.

  • jsmith

    Taking a few minutes to come up with a shared decision in an emergency setting –I wouldn’t hang my hat on that. After all, “you’re the doctor.” A bad outcome could result in a lawsuit, shared decision or no. What do the ER docs out there think?
    Shared decision making in the office, whether or not to do a PSA, for example, might be a different matter. In any case, I’d talk to my medicolegal consultant about this stuff before instituting a personal or clinic policy.

  • paul

    part of the problem is that what defines a test as “unnecessary” is a huge gray area. at one extreme you have insurance companies who want to define every test that turns out to be negative as unnecessary so they can go on to not pay for any of them. at the other extreme you have plaintiff attorneys who see any test that “should have” been done to uncover any diagnosis, no matter how remote, as necessary. at one end you have the big picture view, where a test that has a pretest probability below a certain threshold is defined as unnecessary through its overall effect on society (side effects, radiation exposure etc outweighing the likelihood of a positive test result, cost effectiveness etc). at the other you have the individual patient, and who are we as a society to tell that one person that a test to find a one-in-a-million malignancy is not necessary? (a society headed towards bankruptcy, that’s who…) since we can all define what is necessary or not to suit our own agenda, is anyone really surprised that those making the rules are finding ways to claim that defensive medicine doesn’t exist?

    • Anonymous

      Probably the best summary of the problem I’ve seen. Nice post!

      • paul

        should add that while fear of lawyers and physicians with financial incentives to order tests/perform procedures are both big problems, the biggest contributor to this issue still has got to be unrealistic patient expectations that no diagnosis should ever be missed, and the belief that more testing is always better in a setting where a large segment of the population is not directly paying for the very tests being demanded.

  • http://Drackies@blogspot.com Frank Drackman

    First Rule of Emergency Medicine

    1:”X-ray everything that Hurts”
    OK, it breaks down for that woman with the 24 week pregnancy and a stomach ache…

    2: See Rule #1

    and if your ever in doubt about a particular lab/X-ray just imagine yourself on the witness stand tryin to explain why you didn’t order it.

    How many doctors get sued FOR ordering an X-ray/lab???

    Frank

  • madoc

    Whenever the doc is in the room there will be an elephant. For sure you don’t want to miss the diagnosis. Overtest if you have to. Once you have been sued and found not guilty in a court of law for some stupid charge that the jury doesn’t understand you will then know for sure how you are going to protect yourself.

  • http://paynehertz.blogspot.com Payne Hertz

    This is just blaming the patient and putting the onus of reducing unnecessary testing on patients who often lack the medical knowledge to know whether a test is warranted or not. Sure, increasing the financial burden of testing on patients will likely lead to less testing, but will it lead to less “unnecessary” testing or will it just reduce testing across the board?

    It is time doctors take personal responsibility for the unnecessary tests and procedures they order and for the medical profession as a whole to stop rationalizing and justifying butt-covering behavior, which is essentially unethical. Paranoia and pathological self-interest are not morally or ethically justifiable bases for physician conduct. The goal should be to eliminate malpractice as much as possible. Less malpractice means less malpractice lawsuits.

    • Marc Gorayeb, MD

      Here’s how it would work:
      MD: I’m 90% certain you don’t have X based on my evaluation so far. We can do test Y to exclude most of my remaining 10% uncertainty
      Patient: How much will it cost to squeeze out that remaining 10% uncertainty?
      MD: it will cost you $300. Plus, there is the cost of chasing false positives, the risks of harm from the test itself, etc..
      Patient: What do you think? is it worth the risk and my spending that extra money for the test?
      MD: To my mind, no. Personally, I would be comfortable with that level of uncertainty, considering all of the other uncertainties I live with. On the other hand, if it will give you the peace of mind that you need to go on with your life, then it’s probably worth the cost to you.

      As an emergency physician, I have no great desire to order more tests or do more procedures; I’m busy enough as it is. But I will not fight the ‘do everything’ signals from patients, only because of the fear of future malpractice lawsuits. The ‘do everything’ mentality can only be countered by an understanding of the law of diminishing returns, which can only really be made operational by accepting that there is a personal financial cost to extracting those diminishing returns.

      • http://paynehertz.blogspot.com Payne Hertz

        What’s preventing you from having that conversation now? Let’s not pretend there isn’t a cash incentive for hospitals and ERs to do unnecessary MRIs, CTs, etc which are invariably at inflated prices above what they cost on the outside. Why is this aspect of the problem never discussed? Blaming patients seems a little too convenient.

        From my own experience as a chronic pain patient I know it is often near impossible to get doctors to order tests which, based on my research, I feel might help explain my medical problems. I had to doctor shop to get a doctor to do a simple blood test for hemachromatosis, an illness which matches my symptoms and is prevalent in people of Irish ancestry. I had to pay for all that out of pocket before finally getting a doc at the VA to do it. Who are these patients that are so well-informed medically and have such clout with doctors they know exactly which tests to order and get them on demand, in an emergency situation, no less.

        Considering that medical expenses are the number one cost of bankruptcy in America, most health plans are both outrageously priced and have high deductibles, and Obamacare has made the uninsured indentured servants to the health insurance industry, what leads you to believe that people aren’t already paying a personal financial cost for medical care?

    • SusanM

      Of course the goal is less malpractice, after all we, physicians that is, are also patients ultimately. However, let’s be very clear this is a problem with many faces and to say it all falls squarely on the shoulders of physicians is far too simplified and inadequate. I am an emergency physician practicing in an inner city medical center. Let me be the first to say that expectations for the management of “emergencies” is extremely high. Now that emergency is defined by the “prudent lay person” and can include everything under the sun from MI to hang nail. The expectation is that nothing is missed, which is obviously unrealistic, but nonetheless. I can tell you first hand that i do try to have discussions with my patients about tests being necessary or unnecessary and the perception is that you are trying to treat them less; the ultimate catch 22. Just my two cents worth.

      • http://paynehertz.blogspot.com Payne Hertz

        To say the problem falls squarely on the shoulders of uninformed and frightened patients in the ER seems to be rather inadequate as well, if not somewhat far-fetched.

        Why are we expected to understand when doctors order tests for CYA reasons, when the only risks they face are financial, but we castigate patients for wanting to have the highest degree of certainty possible, when the risks they face are death or permanent injury or pain? Considering the epidemic of medical errors and unnecessary procedures and scripts in this country, is it that unreasonable that a patient would want to know for damn sure what’s wrong before agreeing to something that might destroy his health or life?

        • SusanM

          That’s funny, i don’t believe i said it was the fault of the ER patient, interesting that you would leap to that however. To say the only risks to physicians are financial shows a total lack of appreciation for the issue;
          and for the record you can’t always know “for damn sure” what is wrong, even with all the testing in the world. Sorry medicine just isn’t there yet.

          • http://paynehertz.blogspot.com Payne Hertz

            “Now that emergency is defined by the “prudent lay person” and can include everything under the sun from MI to hang nail. The expectation is that nothing is missed, which is obviously unrealistic, but nonetheless. I can tell you first hand that i do try to have discussions with my patients about tests being necessary or unnecessary and the perception is that you are trying to treat them less”

            That certainly sounds like you’re trying to blame the ER patient. But by all means explain what conclusion you wanted the reader to draw from that remark.

            To say the only risks to physicians are financial shows a total lack of appreciation for the issue;

            Fair enough. Would you explain what those other risks are? How do they stack up against the patient’s risks?

            you can’t always know “for damn sure” what is wrong, even with all the testing in the world. Sorry medicine just isn’t there yet.

            True, but you can know for damn sure a good part of the time, and you don’t know whether a seemingly relevant test will give you objective evidence or not until you’ve done the test.

    • paul

      “less malpractice means less malpractice lawsuits.” you must either be a politician or a lawyer (often synonymous), since those are the only people that honestly believe that.
      fact: the only sure way to reduce your risk of malpractice lawsuits is to see fewer patients. coming soon to a country near you.

      • http://paynehertz.blogspot.com Payne Hertz

        You must be completely in denial to imagine there is no correlation between malpractice and malpractice lawsuits. 250,000 Americans die as a result of preventable medical errors every year, but this couldn’t possibly have anything to do with malpractice lawsuits. I suppose there is no correlation between automobile accidents and bad driving, either.

        This kind of thinking is what happens when you buy into your own propaganda.

        • paul

          answer me this then- if a doctor makes no mistakes, can you guarantee he/she will never be sued? didn’t think so.

          • http://paynehertz.blogspot.com Payne Hertz

            I can’t guarantee that if you never commit murder, you will never be charged with it. This must mean all accusations of murder are frivolous, and there is no correlation between killing people and being charged with the crime.

            If this is what passes for logical analysis in your world I suggest you try again. I’m not impressed with clever sound bytes.

  • Kim

    I get it. It’s ok for doctors to overtest for financial reasons but it’s not ok for patients to insist on testing because they’re scared.

    Do you really want me to decline your recommended treatment because I read about something else on the internet?

    • http://paynehertz.blogspot.com Payne Hertz

      Well said, Kim.

  • madoc

    Docs—protect yourselves. If you don’t do it, nobody else will. You must take care of your integrity or you will fall.
    You are working in a very dysfunctional system.

    • Matt

      Good point. But which actually protects you? More testing or more communication with the patient?

      Studies show the latter. Where is the evidence for the former?

      • madoc

        You made me think Matt. Communicate, test, fight administration, don’t use your time seeing drug reps, plus the kitchen sink. What really is needed won’t be done–stop the lawyers with junk malpractice.

        • Matt

          The objective evidence is that malpractice is vastly undercompensated.

          But again, the question remains – does what you are all calling defensive medicine actually defend you?

  • http://notwithstandingblog.wordpress.com The Notwithstanding Blog

    I really like the idea of a legal “safe haven” for practice consistent with pre-determined guidelines, as the AMA proposes. I do see one large drawback to this approach, namely that giving these guidelines legally enshrined status (even if “only” in tort law) is likely to effectively deter physicians from acting outside them even when doing so would be in the patient’s interest (unless, of course, the guidelines are so vague or well-designed such that there really is no good reason to deviate).

    The questions of who sets these guidelines, how often they are reviewed, and the strength of the evidence behind them would become even more important than they are now if we are to put up such a strong deterrent to deviation. I’m not sure that we’re ready for that just yet.

  • The Happy Hospitalist

    Lawyers families sue doctors when God takes their loved one’s life. That’s the essence of defense medicine.

    http://drwes.blogspot.com/2010/06/why-lawyers-will-get-every-heart-test.html

    • http://paynehertz.blogspot.com Payne Hertz

      This is definitely upping the ante in the blame-shifting game, and is a new take on the standard “I did everything right; if you’re still in pain, it must be all in your head” speech that that I have heard multiple Failed Back [surgery] Syndrome patients report from their doctors.

      Now it’s “I did everything right. If your loved one died, blame God.”

      In case you were wondering who the infallible one is in the contest between God and doctors, now you know.

      • http://thehappyhospitalist.blogspot.com The Happy Hospitalist

        Actually, you are correct with your statement. When a doctor does everything right, using the technology given to us by the Grace of God and the patient still dies, you call it blaming God. I call it Gods Will. God gave life as much as he can take it away.

        To blame a doctor for ones natural death is to blame a doctor for not being up to the task of beating God

        • http://paynehertz.blogspot.com Payne Hertz

          Malpractice is not the result of doctors doing everything right. By definition, it is the result of doctors doing something wrong. Specifically, the definition of malpractice requires that an injury or death be the result of negligence, and not just a natural death. It is a common trope to equate the two as if doctors are routinely sued for natural deaths no one could have prevented, but this is not the case. No lawyer will take a case without strong evidence of negligence, and most judges will not allow such cases in their courts. In some states, you need expert testimony that malpractice is likely to exist before a case can even be brought to trial. The burden of proof to establish negligence is enormous.

          Let’s stop pretending that the real victims of malpractice and negligence are doctors. It’s a slight hit to doctors financially; it’s death, lifetime disability and pain and financial ruin for the real victims.

  • http://idiopathicmedicine.wordpress.com Medical Resident

    Excellent post – I enjoy reading your blog! I have a related post at http://idiopathicmedicine.wordpress.com/2010/06/29/defensive-medicine-supersedes-quality-medicine/.

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