Unnecessary testing needs more than tort reform to cure

Recently, while covering for one of my partners on a weekend, I was consulted by a physician to do a procedure.

The doctor wanted his patient to undergo an EGD, which is a scope test that examines the esophagus, stomach and first portion of the small intestine called the duodenum. We gastroenterologists do this test routinely to search for an explanation for a patient’s symptoms, or to determine if these organs might be harboring a lesion that is silently bleeding.

Gastroenterologists are obligated to perform procedures for sound medical reasons. I have already confessed publicly on this blog why physicians like me have performed medical tests for the wrong reasons. The medical universe is not ideal, and neither are its players.

Nevertheless, we want our care to make sense and not to waste dollars. For example, if a patient is suffering an acute headache, it would be hard to justify ordering a CAT scan of the abdomen, which would be unlikely to explain the symptom. One reason that wrong tests are done is because physicians ask colleagues for a specific procedure, and not for their cognitive advice.

For example, when we order a radiology examination, such as routine x-rays, CAT scans, MRIs, etc., we are not requesting the radiologist’s opinion on the medical issue, only that the test be performed. For ordinary readers who are on the sidelines of the medical arena, here’s how it works.

• A doctor like me decides that a patient needs a CAT scan.
• I order it.
• The radiologist does it.

Personally, I think this is a serious failing in medical practice. Radiologists have the deepest expertise in the procedures they do, yet they are not routinely consulted in advance. If they had knowledge of the particular patient, they could advise us if our intended test is the best option. Perhaps, a different radiology test would clarify the clinical issue better. Or, perhaps, we ordered the proper test, but it should be performed using special technique.

In general, radiologists are not treated as true consultants, but as technicians. By doing so, clinicians like me who take care of patients are squandering an opportunity to practice better medicine.

Of course, there are many times that physicians and radiologists do confer to optimize the diagnostic approach. But, in my experience, these important conversations are exceptional. Physicians who order imaging studies on their patients likely feel that they have enough knowledge to choose the right exam. Some do, and some don’t.

I have never liked serving as a technician gastroenterologist, but I am often asked to do so. Like every other gastroenterologist, I have performed requested procedures that were reasonable, but that I would not have personally recommended if my advice had been sought. The patient referenced at the top of this post was in a different category. This was not a ‘gray area’ issue.

This particular patient was having some minor rectal bleeding. He had already had the pleasure of a full colonoscopy this past November, when hemorrhoids were discovered. No additional testing was necessary for the current minor bleeding, as hemorrhoids were the likely culprit. The request for an EGD was nonsensical. The ordering physician had no economic conflict of interest in ordering the test; only the gastroenterologist would benefit financially. An EGD here was like ordering a foot x-ray on a patient with a sore throat.

I will now risk outrage from my medical colleagues by sharing a dark secret with the public. I will divulge two pieces of confidential medical code, and trust you all to protect me from vengeful physicians who will accuse me of breaking sacred medical omerta.

At the very bottom of my consultation report, I wrote: ‘will discuss with you’. This is standard medical code for, your request is nuts and I won’t put in writing what I really think. When a doctor uses this phrase, it means that a private conversation between the consulting and referring physician will soon follow. Ask your own doctor what the phrase ‘will discuss with you’ means, but be prepared for garbled gobbledygook seasoned with a dash of doublespeak.

Later that day, my partner continued the discussion with the physician and gently asked for his rationale for requesting the EGD. Here comes secret code #2. The referring physician wanted the EGD ‘for completeness’. When a doctor uses this phrase, as we all have done, it means, the test makes no sense and is totally unnecessary.

So, what happened? Monday morning, the gastroenterologist who was originally consulted assumed care of the case. The EGD was done.

Fear of litigation results in overutilization of medical care. I know this personally. But, there are other reasons why we physicians pull the procedure trigger. This vignette illustrates that our profession has its own healing to do. Tort reform can’t cure it all.

While I didn’t perform the EGD, am I an accomplice by not standing up to the referring physician initially? Can I rightfully still consider myself to be an ethical practitioner? Radiologists don’t refuse to do CAT scans that make no clinical sense. Should the standard be different for other medical procedures, which have very low risks of complications? What would you have done here? Would you have refused the physician’s request, which would likely result in the loss of this physician’s future referrals?

Would you rationalize the unnecessary test knowing that if you didn’t do the EGD, that someone else would? Do private pracitioners view this scenario differently than employed physicians? Should they?

Do you have similar vignettes from your own practice or experience that you can share?

Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower.

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  • http://www.drpauldorio.com Paul Dorio

    Nice column. As a radiologist, and an interventional radiologist, I am entirely in agreement that radiologists could offer more to both referring physicians and patients, IF the system would somehow allow it.

    Now, most people will look at that last phrase and think we radiologists just don’t step up enough. We cop out and sit back because it’s easier to make money than do good medicine. The truth of the matter is that there would be better care if we radiologists could help guide referring physicians to an appropriate test for each indication/patient.

    And, as an interventional radiologist, I am in the interesting and unusual seat of treating patients, in addition to merely diagnosing them by film-reading. So I am acutely aware of the many shades of “appropriateness” when it comes down to “will you do this procedure.” As you mentioned, refusal to perform is easily a reason to lose that physician’s future referrals. And in today’s cutthroat world, one cannot survive on refusing to perform. One cannot survive, also, if referring physicians no longer refer.

    So, again, it may seem to the lay reader that we “proceduralists” are all bought entities, waiting to jump at the slightest request to perform a procedure. But the truth is that most of what we do is appropriate in some shade or color. And most of why we do things is to find out what ails the patient.

    To answer your rather black-and-white question, if a physician asks me to perform a procedure that is either technically too challenging to be safe, or is not truly indicated, I discuss the details with the referring physician who more often than not thanks me for my attention to detail and willingness to hold off on performing the procedure. So, perhaps I am in some disagreement with one component: through reasoned discussion, it is usual that the referring physician will be appeased and understand that we “technicians,” as you put it, do have the best interests of patients at heart.

    Can we all do better? Yes. But the whole bath doesn’t have to be thrown out, as they say.

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    Paul, it is easier for a radiologist to turn down one of your invasive procedures than a standard diagnostic CAT scan. I am sure that there were scans that I ordered that were not the optimal imaging tool to address the clinical question before me. In addition, I’m sure that radiologisits roll their eyes when we order ultrasounds and other studies, which have already been done multiple times for the same reason on the same patient in the recent past.

    • http://www.drpauldorio.com Paul Dorio

      True and true. When I first started residency, we were sort of gatekeepers. We would discuss with the ordering physicians whether the test they were requesting was appropriate and why. Some of us were “harder” than others, in our attempts to guide the resident physicians. I even had an attending ER physician tell me (rather, yell at me) that I would never make it in the real world if I continued to be so difficult when physicians called to order a test.

      Ironically, that mentality, long bled and beaten out of me, could actually serve a useful purpose in today’s environment. Two problems, however:

      1- There probably aren’t too many radiologists who would feel comfortable discussing the various nuances of each patient’s ailment. The litany of disease processes almost prohibits intelligent discourse between a medical doctor and a radiologist, who typically learns aspects of disease processes in a much different manner than do those individuals in medicine.

      2- There are few radiologists who would like to take on the medical malpractice attorneys, who would just love to put us up on the stand, we envision, and ask questions about our level of expertise in evaluating patients for the various disease processes that I mention in #1.

      Perhaps a day is coming, however, when radiologists will again be put in the role of gatekeeper, at least to the degree where we need to be involved with the ordering physician to ensure that the appropriate test is ordered. I think it will be a work in progress, but one that could actually improve patient care.

  • http://fertilityfile.com IVF-MD

    Michael,

    I applaud your courage. If the people who stand to be harmed by unnecessary testing (the patients or the parties who pay for the tests, either directly or indirectly) were privy to the secret communications that go on behind the scenes, it would hold doctors more accountable for these types of decisions.

    I would argue that when we as physicians seek to improve transparency, as you are doing by divulging the truth in this matter, it benefits not only the patient and the payors, but it also has the effect of benefiting us by making us more trustworthy.

    I have a lot of similar stories such as yours in my field. You are not alone.

  • paul

    we need some pretty sweeping cultural changes before a significant reduction in unnecessary testing will happen. the mentality that patients are entitled to all testing without worrying about cost, coupled with the mentality that more is always better, is a problem. systems that financially incentivize performance of expensive, invasive procedures of questionable benefit are a problem. a society-wide refusal to accept a certain cutoff miss rate is a problem (bearing in mind that there is no such thing as a zero miss rate). the question is, are there ways to push these issues in the right direction without resorting to brute force?

    • K

      When asked by patients or friends about tort reform, I have recently said that it will take a generation of doctors to change the current “culture” of defensive medicine. I read this article and your reply and was comforted to know that I am not alone in my assessment. I wish that I worked in a hospital full of some of the docs on this posting. We could staff a hospital that would take good care of patients for less than half the cost of any other hospital Doctors that practice dumbed-down defensive medicine would refer their patients elsewhere. Patients who request unnecessary tests would go to another hospital. The government would be pressured to legislate what we do–they would fail. We wouldn’t work as hard and collect additional profit from the money we save….
      …I can only dream about such a place. What stands in our way? The proceduralists that profit from volume–the only way to make big profit in the current system. The societal pressure and special interests that force the “no disease left behind” on us.
      The “brute force” that you talk about–who will do that? Not politicians–they crumble under the slightest pressure. Unfortunately that is who our country has entrusted with these hard decisions. A grass roots movement–by docs like us–is all we have right now until the money runs dry.

  • http://doctorswallet.blogspot.com/ Docblogger

    Very interesting discussion,
    I feel sometimes that these referrals ( be it from a PMD to a specialist or a PMD to an ER) are made because of the patients’ expectations that are hard not to give in to. I feel that a society at large expects a CT for each headache, chest XRay for every cough (and antibiotics for that, too).

  • http://www.epmonthly.com/whitecoat WhiteCoat

    I agree with most of your post, but you present one logical flaw in your reasoning.
    What are the chances that a patient has both hemorrhoids and a gastric ulcer or gastric cancer? By assuming that recurrent bleeding must be from a previously known problem, you fall prey to missing a serious disease. Akin to assuming that no subarachnoid hemorrhage exists because there was a “traumatic” lumbar puncture.

    The threat of litigation encourages “completeness” since the retrospective review of anyone who looks at a missed perforated ulcer or missed gastric cancer will obviously show that the dumb doctor should have thought of the problem when bleeding was first noticed.

    “Completeness” is usually the result of defensive medicine, and it improves the lives of very few at a tremendous cost to the system as a whole.

    While I agree that tort reform isn’t the only answer to this problem it’s the 600 lb gorilla in the room. Generations of physicians have been taught to fear the bad outcome and to fear malpractice litigation. Jackpot payouts. NPDB reports. Licensing actions. Loss of privileges. They all create a fear of missing that obscure diagnosis.

    Even if tort reform was enacted today, there are tens of thousands of physicians whose practice patterns would probably change very little – because that’s the way they’ve done things their entire career. It will take a long time to reverse the mindset created by the threat of litigation.

    Performing an EGD in your case was low yield, it wasn’t “unnecessary.” There may be some that “scope for dollars”, but there are also others who scope to avoid the bad outcome.

    Until we correct one system flaw, attempts at fixing the others won’t get us very far.

    • Matt

      ” Generations of physicians have been taught to fear the bad outcome and to fear malpractice litigation. Jackpot payouts. NPDB reports. Licensing actions. Loss of privileges. They all create a fear of missing that obscure diagnosis.”

      So it’s the fault of the legal system that physicians have been poorly taught? That makes little sense. Still waiting to find that victim with a “jackpot” payout who wouldn’t trade it for their health – you had any luck finding them Dr. Whitecoat? We all know the vast majority of malpractice goes unpunished by any of that nonsense.

      Have any of you figured out if defensive medicine actually “defends” you? If you perform X or Y test how much less likely are you to be sued or pay a claim? Do you have any idea?

      If you don’t, why should we go enact more arbitrary damage caps on those injured the worst? Because Dr. Whitecoat is easily frightened?

      The only system flaw is physicians attempting to change a system they know next to nothing about rather than reforming their own, which they’re experts in.

      • http://www.epmonthly.com/whitecoat WhiteCoat

        Mattuendo –

        Don’t you get tired of all the unsubstantiated innuendos?

        Innuendo #1: Is defensive medicine the fault of the legal system? Of course it is. Try perusing the AAJ web site:
        http://www.justice.org/cps/rde/xchg/justice/hs.xsl/2031.htm
        “The simple truth is that any reduction in the risk of civil liability would remove a critical safety incentive.”
        Lawyers want doctors to believe that lawsuits are good so that doctors practice “safer medicine”. Now you’re blaming doctors for believing what the lawyers want us to believe?

        Innuendo #2: “Lets trade places with the injured and their jackpots.” Actually I’d like to trade places with the lawyers and their 40% cut of the jackpots.
        To answer your question, though, if I or a family member had a bad outcome due to the natural course of a disease and despite medically reasonable care, I’d choose to trade places with someone who got a jackpot for that same outcome and care every single time.
        While I’m thinking about it, though, if lawyers are so altruistic, why is it that they harm the injured patients by refusing to take legitimate cases where jackpot damages aren’t available?

        Innuendo #3: Does defensive medicine “defend” doctors? Of course it does. You know it does, but you obfuscate. When doctors are sued, what’s the most common cause of action? Failure to diagnose.
        Needle in a haystack? Who cares. If the doctor doesn’t find it, he’s liable. So defensive medicine means doing all the testing possible to find the needle in a haystack regardless of the cost to the system. Don’t do the test that misses the problem? You’re liable. Welcome to defensive medicine. We’ve been through this all before on my blog and the arguments you make that actually have a factual basis have been refuted by me and many of my readers. Keep re-raising them, though.

        Oh, and your “don’t take it out on those injured the worst” battle cry is ironic given that the contingency fees attorneys charge malpractice victims come right out of the damages awarded to their clients – essentially ensuring that the clients will not receive what a jury has decided is “fair” compensation to the injured patient.

        Don’t worry. If we keep trying to sue our way to better health care, soon we’ll see how much more the availability of health care diminishes.

        • Matt

          WC, sometimes I wonder if you know what an innuendo is:

          “Innuendo #1: Is defensive medicine the fault of the legal system?”

          If this were true, then when your “reforms” to curb defensive medicine were passed, it would go down. And yet, after not ten, not twenty, but 37 years of it in one of our largest states, there is no evidence it has. At what point does data assist your conclusions?

          “Innuendo #2: “Lets trade places with the injured and their jackpots.” Actually I’d like to trade places with the lawyers and their 40% cut of the jackpots.”

          Really? You’d leave the highest paid profession in the world where you get paid well regardless of your skill to put hundreds of hours of your time and money in to cases where you may or may not recover? I guess these things are easy to say when you don’t have an understanding of the economics of what you’re talking about.

          “While I’m thinking about it, though, if lawyers are so altruistic, why is it that they harm the injured patients by refusing to take legitimate cases where jackpot damages aren’t available?”

          Who said they were altruistic? They’re no more or less so than doctors.

          ” given that the contingency fees attorneys charge malpractice victims come right out of the damages awarded to their clients”

          How would you have them be paid? Or should they work for free?

          “Innuendo #3: Does defensive medicine “defend” doctors? Of course it does.”

          Because. . . you say so? For a physician, you sure reach a lot of conclusions without data.

          “Needle in a haystack? Who cares. If the doctor doesn’t find it, he’s liable.”

          No, not really. Particularly when you consider how much malpractice happens that never sees a claim file.

          “f we keep trying to sue our way to better health care, soon we’ll see how much more the availability of health care diminishes.”

          Love the availability line. Is there anything you don’t try and use this scare tactic for? Pay us more or you won’t have doctors, give us tort reform or you want have doctors, and on and on. Yet at least with tort reform, it’s never been true, again after DECADES. Poor folks still don’t have access to that many doctors and rich folks have plenty. Regardless of liability laws. Damn facts.

      • http://fertilityfile.com IVF-MD

        So 10000 patients show up complaining of some symptom and after evaluation, they are all evaluated and based on their signs, symptoms and lab tests, they are professional judged to have a simple benign condition. However the reality is that 9999 truly DO have a minor condition, but there’s always that 1 in 10000 who might have rare disease XYZ which results in a horrific death. Now if only the doctor had ordered the special test for XYZ (which costs $700), then he might have discovered this disease in time to make a potential difference in the final outcome.

        Absolutely if YOU or your family member were the person’s whose life is saved from a horrific death by having that test done, you would certainly think it’s worth it, no?

        So is it worth $7 million to save that one life? It depends on whom you ask.

        So the doctor’s viewpoint is “If I order this test and it’s normal, then I’ve wasted $700 of the system’s money” “If I don’t order the test and the patient dies, then it could be tragic for the patient and his family, and I, myself, will be subjected to being dragged into a lawsuit and/or losing my license and/or losing my savings.”

        What would you do in this case? Can you really blame the doctor for being “complete” and ordering the test?

  • Vatsal Ladia

    It is a comprehensive discussion. However, in this market I am sure we can find many imaging center will do what a physician orders and make money. So, rather than cultural change we need a legislative change.

    • paul

      i think we’ll find out exactly how big a role is played by physicians just trying to make money if that is the only piece of this that we try to fix.

  • Matt

    The problem with the cry of “tort reform will stop defensive medicine” is that in 4 decades it hasn’t. Physicians order just as many tests in those states with it as without.

    If something hasn’t worked in nearly 40 years, surely a physician’s diagnostic skills would allow him to reach the conclusion that it’s not a solution to a problem.

    There is of course the other obvious point that none of you know if ordering more tests actually does work to defend you. So why should we should mess with the US Constitution if you don’t even know if what you’re doing works? I realize the Constitution is out of favor these days, especially with physicians, but don’t you think we should change it based on a little more concrete info than your fears?

  • ray

    BRAVO!! for telling the truth like it is, can this be published. Lay people can read so that they can ask more questions and have dialogue rather than assume they need every test under the sun to help them when in fact several instances it hurts them like unnecessary radiation from scans etc. Always wonder why people spend so much time checking out air ticket prices than their own health questions. System is too opaque in health care and patients can not get answers about costs nor do they care because of middle man insurance and being insulated from costs.

  • http://www.drpauldorio.com Paul Dorio

    Matt:
    First of all – could you provide a reference to the comment: “Physicians order just as many tests in those states with [tort reform] as without.”

    Second – who is talking about changing the Constitution? What are you talking about?

    Third – the point of the column is that tort reform is NOT enough. As you so eloquently pointed out also, just putting caps on malpractice awards won’t change the over-utilization that occurs, which is why we also need reform of the Stark laws and a change to the in-office ancillary exception. Perhaps you might look into those details – fascinating how non-radiologists can own radiology imaging equipment and perform as many tests on those devices as they want.

    Fourth – Good point about the defensive medicine and whether it “works” or not. I would assume that defensive medicine is a mentality and behavior that is not able to be tested. It’s also not a matter of doctors walking around “scared,” as you put it. It’s more a matter of a lawsuit can ruin a well-meaning physician in one fell swoop. Maybe you could consider that. There aren’t many other professions out there that have a constant real threat of financial ruin.

    Fifth – If I could politely suggest that you put away a little bit of your rancor and keep the discussion cordial, it will make for a much more intelligent and interesting discussion. Thx.

  • Matt

    ““Physicians order just as many tests in those states with [tort reform] as without.””

    http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande One could also look at the relative cost of healthcare in those states with and without. California has had tort reform since the 70s with no discernible effect. Also, given how badly the insurance industry wants caps, don’t you think if they worked to reduce testing they’d have some studies supporting the claim?

    “who is talking about changing the Constitution? What are you talking about?”

    The second most talked about “reform”, after arbitrary caps, is “health courts” (which include caps). These would violate the 7th Amendment to the US Constitution.

    “the point of the column is that tort reform is NOT enough. ”

    And I agree. But even what you mention just dances around the edges, because the only true way to change is it is reforming your payment model. I was simply commenting on the the one proposed reform we KNOW won’t reduce defensive medicine.

    ” I would assume that defensive medicine is a mentality and behavior that is not able to be tested.”

    Then why should we make policy based on an ill-informed mentality?

    ” It’s more a matter of a lawsuit can ruin a well-meaning physician in one fell swoop. Maybe you could consider that. There aren’t many other professions out there that have a constant real threat of financial ruin.”

    I think perhaps you should reconsider this belief. I don’t know how one faces financial ruin based on a defense that is paid for by an insurer and the even more remote likelihood of a judgment that is also paid for by an insurer. How many physicians with insurance, and sober, have ever paid a judgment out of their pocket? I think you’re overstating the case, which only illustrates how much of this is based on an irrational fear. As to other professions, who knows? Most physicians don’t even know what their likelihood of being sued is.

    Driving down the road too fast is probably just as likely to ruin the financial future of a well meaning physician. Yet I’m sure most of you still drive to work each day and speed a little.

    “If I could politely suggest. . . ”

    Of course, and I will certainly try.

  • http://fertilityfile.com IVF-MD

    Matt, the true measure should be overall quality (and/or quantity) of life, not the surrogate measure of number of tests ordered.

    The best way to answer the question of “Should it be easier to sue or harder to sue?” is to have half the states randomly assigned to 1. EASY TO SUE. High or no caps on damages. High % paid to lawyers. Burden of proof in favor of plaintiff. Defendant assumes own legal costs. and the other half assigned to 2. HARD TO SUE: Strict caps on damages. Limits on % paid to lawyers. Burden of proof in favor of defendant. Loser pays costs of defendant in addition to compensation for lost time/wages.

    Let the machinery run for a few years and let’s see which states will have healthcare of higher quality and lower cost and in which states the overall quality of life will be better.

    It could be very revealing.

    • Matt

      Well, we do have that in many ways. In terms of what people can pay their lawyers, we don’t do that in most cases because that’s a private contract between two individuals. Not really the government’s business, you know? It seems when people want to put limits on what people pay their lawyers, they only want to do it on one side.

      As to loser pays, many states do have a form of that. However, with a med mal victim with an injury sufficient to bump up against the caps, they’re likely not going to be able to pay back anyway. They’re probably unable to work. So I don’t know how much that can tell you.

      I don’t know why we would restrict people’s ability to access a Constitutionally protected right anyway, but physicians are more comfortable with government intervention than some other professions, I guess.

  • http://www.drpauldorio.com Paul Dorio

    “How many physicians with insurance, and sober, have ever paid a judgment out of their pocket? I think you’re overstating the case, which only illustrates how much of this is based on an irrational fear.”

    Here’s an interesting thought: If we removed the fear, by removing the risk of being sued, then you could see how correct your argument might be. Otherwise, we’ and everyone else in these debates will just continue to dance with each other without any real benefit to patients.

    Personally, I’d like to see real reform happen so that each day could be spent on radiology (in my case) or one’s chosen field. Having worked in one state with a patient’s compensation fund (WI) and now one state with the opposite (i.e. extremely litiginous) environment (FL) I can undoubtedly tell you that the irrational fear of being sued is MUCH higher down here in Florida! Whether we are all crazy down here is debatable. But I would pose that the “irrational fear” is more likely based on a pervasive nastiness that is the trial lawyer.

    No two ways about it. Lawsuits ruin people and your comment that we have insurance backing us up is great, until those policy limits are reached for those poor souls that have to go through it (and I know several down here who have had to).

    (Thx for the link)

  • Matt

    ” If we removed the fear, by removing the risk of being sued, then you could see how correct your argument might be.”

    If you want to remove the risk of being sued, then become a shut in. Don’t drive, don’t enter into contracts, don’t sell anything. Don’t talk to anyone. In short, remove yourself from all the encounters that lead to disputes, and in rare cases, disputes resolved by a jury.

    “Personally, I’d like to see real reform happen”

    Without knowing how you define “real” reform, it’s hard to say whether one agrees or disagrees. The only reform most physicians back is damage caps.

    “But I would pose that the “irrational fear” is more likely based on a pervasive nastiness that is the trial lawyer.”

    Most of your top lawyers, on both sides, are quite polite in most circumstances. But you don’t pay them to be sweet, do you? But if you want to use stereotypes, can you blame them for being nasty considering the arrogance of physicians?

    “Lawsuits ruin people and your comment that we have insurance backing us up is great, until those policy limits are reached for those poor souls that have to go through it (and I know several down here who have had to).”

    Well, if you damage someone so greatly that it exceeds your insurance limits, what about them? Of all the physicians you know, how many have had to pay out of pocket judgments?

  • steph

    “If you want to remove the risk of being sued, then become a shut in. Don’t drive, don’t enter into contracts, don’t sell anything. Don’t talk to anyone. In short, remove yourself from all the encounters that lead to disputes, and in rare cases, disputes resolved by a jury.”

    Also, don’t have a swimming pool or a trampoline or a business of any sort.

    Yea, this is what the looters have done to us.

    • Matt

      No, that’s what life does to you. You risk damaging people when you do things like that. You don’t have to be sued, IF you pay the damages you cause. If you don’t think you’re responsible for them, and the other party does, or you have a disagreement about the value of the damages, then yes, we have to have a mechanism for figuring out who is right or wrong. You don’t have to call it “being sued”, you can call it “bringing me roses”. It’s still going to involve bringing your complaint before a tribunal or some sort, the other party answering it, facts being gathered, and decisions being made by third parties.

      Not sure why you would object to a dispute resolution system. Would you prefer “might makes right”?

      • http://fertilityfile.com IVF-MD

        There’s a world of difference between actually damaging someone vs being innocent, but just attacked by a broken system. If you fail to have wheelchair access in your store or if you fail to shovel your sidewalk promptly and somebody slips on it or if an uninvited burglar breaks into your house and gets injured, you may not ethically have done anything to harm anybody, but the broken letter of the law currently allows them to sue you and potentially take money from you by force. There are many ways to refine and improve our dispute resolution system, but it’s not the best the way it is now. Even going back to the 1960′s climate might be enough to make the world friendlier and give people more peace of mind about being sued. I don’t have any proof personally, but it’s just my opinion by observation that people nowadays are more terrified of becoming victims of lawsuit abuse than they were several decades ago and that’s not good for anybody (except of course for those who make their profits by suing).

        • Steph

          Yes, our system is broken. Juries frequently assign blame on the basis of feeling sorry for people, rather than on the basis of sound science. Emotions are easily manipulated.

          So I’m really enjoying reading such websites as Faces of Lawsuit abuse, CALA, Sick of Lawsuits, etc. It’s no wonder that ambulance chasing is despised by many reasonable, rational Americans–primarily those who work for a living. Just Google “lawsuit abuse” and read away.

          Well, of course, now we have many hungry new grads who each want a piece of the spoils. Perhaps the glut of looting trial lawyers we see lately is the reason Matt has so much time to troll the physician websites. Either way, his taunting is distasteful.

  • steph

    Getting back to the original post, I’m only a pharmacist, but I’ve found almost all of the hundreds of physicians with whom I’ve worked to be extremely intelligent, rational, and reasonable. What’s to stop a colleague from picking up the phone and saying, “Dr. So-and-So, can I make a suggestion? The test you’re ordering would pick up xyz findings, but I’d recommend Test A instead because studies show blah blah blah?” The physicians I work with seem to do this all the time, and we in the pharmacy do, too. I’m just certain that physicians appreciate the guidance and peer education. And I believe most modern physicians on the other end of the phone call would have no problem calling the patient back and saying, “Hey, good news–the radiologist/gastroenterologist made a great suggestion. She’s recommending a blank-scan [or no test] instead of the boop-scan we talked about. This will cost less/expose you to less risk.”

  • http://www.drpauldorio.com Paul Dorio

    steph:
    What’s with the “only?” I have very good friends who are pharmacists. Nothing “only” about you guys. You help me out, as an interventional radiologist, all the time!

    Anyway, you’re right about the phone call. And I do that all the time too. But calling doesn’t always make people happy. Most of the docs we call are fine, but you know you always get one or two who make a big fuss. That kind of reaction shuts off any possibility of a continuous phone call system because of the worry that business would be pushed away. Obviously, a component of what we do for people is business, even though, contrary to what Matt would like to make us think, much of each day is spent caring for patients in our own way.

  • steph

    Thanks, Dr. Dorio.

    I also like e-mail. Sometimes the phone is a really difficult medium. E-mail can feel less confrontational.

  • http://evimedgroup.blogspot.com Marya Zilberberg

    As a Pulmonologist, I hated being consulted for a bronchoscopy when I was in practice. And because I was not particularly politically savvy, I pissed off quite a few referring MDs by rendering my opinion as to the necessity of this procedure. Bottom line: more professional communication instead of knee-jerk procedure requests.

  • Aly

    Glad to see this analysis. I’ve also heard that lawyers think lawsuits are necessary (and obviously some are legit) because doctors refuse to police themselves. It’s very difficult to get a doctor penalized by the medical board, for example. Any truth to that?

    • http://drpauldorio.com Paul Dorio

      Aly,
      I’m certain that I am more “policed” than any other profession, despite what you might read to the contrary. I have read comments that other professions are policed better etc etc. Hogwash. Medicine is continually policed and scrutinized both within and without. Sure there are examples of cases where the drunk doctor wasn’t turned in sooner, or the patient-doctor relationship should have been exposed. But those examples involve a tiny minority of physicians. In fact, I would argue the opposite: that we in the medical profession are so policed that most of our day’s “work” is spent ensuring compliance. I would much rather spend my day caring for patients than following bureaucratic regulations, most of which have marginal use in improving patient and doctor safety, in my opinion. Having said that, I recognize that rules are for the masses and are a way to attempt to standardize practices. So I conform to every one.

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    With all respect to Dr. Dorio, I think that the medical profession has been lax on this issue. This vacuum is responsible for some of our difficulties.

  • Aly

    Paul, I have no idea if it’s true, thus why I asked. Just seems like it’s almost impossible to strip a bad doctor of his license. Thanks for the explanation.

  • http://drpauldorio.com Paul Dorio

    Well, DrK, I agree that there are aspects of “policing” in the medical profession which could be improved. But if you step outside our little scrutinous/scrutinized box, I think you might agree that we are particularly regulated. And THAT helps police the profession fairly well. Will there be flaws and is there room for improvement? Always and with every profession. But I think we also need to be fair in our appraisals and realistic in our assessments.

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    @PD, might you give just a few specific examples?