Defensive medicine accounts for 20 percent of MRI scans and x-rays

Defensive medicine accounts for 20 percent of MRI scans and x raysIn the first, known prospective study, Pennsylvania orthopedic surgeons admitted that almost 20% of the imaging studies they ordered were for defensive purposes.

All of the previous data that hinted at the rampant practice of defensive medicine relied on surveys or other forms of retrospective data.

In this study,

A total of 72 orthopedic surgeons agreed to participate, submitting information on a total of 2,068 scans.

Of these, 396 — 19.1% — were listed as primarily defensive.

About 70% of these were conventional x-rays and 25% were MRI scans.

But the MRI scans accounted for about 75% of the defensive costs, Miller and colleagues estimated using Medicare reimbursement rates.

As regular readers of KevinMD.com know, defensive medicine is controversial.  Physicians swear that most doctors practice it.  Plaintiff attorneys question that, and argue whether states that have enacted tort reform impact defensive medicine rates.

I’ve written previously that the costs incurred by defensive medicine are probably overstated. A study in Health Affairs last year pegs the number at $56 billion, or 2.4% of the nation’s total health costs, while the CBO estimated last year that tort reform, in guise of malpractice caps, would save about $55.6 billion, mostly by curbing defensive medicine.

Although saving tens of billions of dollars shouldn’t be discounted by health policy experts, I continue to urge tort reform supporters to stop using costs as a reason to enact malpractice reform.  The numbers aren’t there yet.  Instead, approach it from the patient point of view, and emphasize that the current system does injured patients a disservice.  The data supporting that is significantly stronger, and the argument more compelling to patients and political decision makers.

Back to the study, which was conducted in Pennsylvania, traditionally viewed as a malpractice-unfriendly state to practice medicine.  Repeating the same study in a state that has enacted tort reform, like Texas, would be helpful.  That way, we can determine whether tort reform has any impact on defensive medicine rates, and perhaps, contribute more evidence supporting physicians’ point of view.

 is an internal medicine physician and on the Board of Contributors at USA Today.  He is founder and editor of KevinMD.com, also on FacebookTwitterGoogle+, and LinkedIn.

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  • http://advocateyourself.blogspot.com Cheryl Handy

    Arguably, docs (who assess pts/make clinical decisions through a prism of defensive medicine) have lost objectivity, stopped practicing for pts’ benefit & perceive every pt as a potential lawsuit. Those docs must really distain/distrust pts.

    • Med/Peds Doc

      You must not be a practicing doctor. Every single patient is, unfortunately, a potential lawsuit. It is pure and simple reality…probably the most dissatisfying aspect of our profession. I would dare say every doctor has been the target of, or known someone who was the target of, a frivolous lawsuit. It is not disdain for our patients, it is pure distrust. You could do everything by the book and provide excellent care to a patient with a terrible problem only to be sued b/c the patient or family is not satisfied with the outcome. Distrust is a learned behavior. One lawsuit or threatened lawsuit or observation from afar as a colleague defends their actions totally changes the way you approach patients. We are taught from the beginning to write hospital and clinic notes in a way that you could defend your actions in court…b/c the potential is there for EVERY interaction.

      • http://advocateyourself.blogspot.com Cheryl Handy

        Med/Peds Doc

        Good charting is important for clinical reasons, including transfer of care (both within & beyond the treater’s facility). The medical schools are teaching young students to distrust pts generally if they are teaching that the purpose of charting is to defend actions in court.

        If docs distrust nearly every patient, then clinical judgment is no longer based on true assessment and diagnosis. That increases cost of medical care to patient and pts are not even receiving care from a unbiased practitioner. If doc doesnt trust pts, he isnt an effective clinician. Why not just be a researcher in a lab?

        • Med/Peds Doc

          I agree with your statement on good charting in regards to patient care…that is its primary purpose. To be more clear, I was taught that every note you write or dictate should show the clarity of your thought processes and should stand alone. It is the only thing you have to defend yourself in a court of law. It is only rational to be taught of the utility of our notes in regards to good patient care as well as defending our actions in a court of law. It is, unfortunately, reality.

          And to be a little more detailed, I am not sure distrust for patients is what I want to convey. But the pure patient-physician relationship you speak of is probably impossible to have thanks to insurance companies, the government, and, yes, lawyers. I would have to recount to you the long list of experiences I have as to why I cannot blindly enter a therapeutic relationship without concerns of what any given patient may accuse me of if dissaisfied with my care.

          • http://www.ServantLawyership.com Kathleen Clark

            Regarding a pure patient-physician relationship being impossible, “thanks to insurance companies, the government, and, yes, lawyers”: do physicians have no responsibility for this? Will we ever get to safer care and general improvement in healthcar practices in this conversation of finger-pointing? I’ve asked physicians before, on this blog and other places, if we could include in this “tort reform”, “defensive medicine” conversation physicians’ dsclosure policies. Are some lawsuits that are referred to as “frivolous” brought about because there has not been any disclosure and patients are left with no choice but to go to court to get answers? How can we answer that question when it never seems to be part of the investigation. When I ask that of physicians, including a past president of the AMA, I get no response or an angry response. How can we have this conversation and create change until all the stakeholders/participants accept responsibility for their part of the problem. There is evidence that physicians who are sued are more likely to be sued a second time while distracted and upset by that litigation. Therefore, expanding the conversation, the responsibility, for our system, as it is, will help physicians. I think, perhaps, it will help physicians a lot more than caps on damages. If we could shift the conversation from defensive medicine to working together, physicians, lawyers, patients, hospitals, and insurance companies, we can shift the outcome. Yet again, I propose a survey that asks physicians, in addition to the usual questions, do you hold disclosure conversations with your patients as a general practice? If so, how many of the patients you’ve disclosed to have sued you? Can you estimte in qualitative terms how much stress, time, ill health and energy you have saved yourself by disclosing to your patients rather than waiting for the lawsuit to be served against you? Of course, there will be formulations of better questions, but, you all get the idea.
            If physicians think this would not be helpful, why not? I’m still out here waiting to have this discussion. Thank you all. I am on the run.

      • Matt

        “Every single patient is, unfortunately, a potential lawsuit.”

        So is every person you contract with, every person in every car around you, every person you come in contact with.

        A lawsuit is merely a means of assigning liability and damages when the parties cannot otherwise agree. That system, in some form or another, will exist no matter what. And you will not like it no matter what.

        • horseshrink

          “A lawsuit is merely a means of assigning liability”

          I disagree vehemently.

          Lawsuits may be as matter-of-fact to an attorney as listening to lungs is for a doc. However, from my own experience, I can say that the emotions around a lawsuit are powerfully corrosive in the world of a person who signed up to be helpful.

      • Matt

        ” We are taught from the beginning to write hospital and clinic notes in a way that you could defend your actions in court…”

        Is that a bad thing that you’re writing notes in a more precise, clear way, so upon later review it’s obvious what actions you took?

        • horseshrink

          You’re right. We should be writing clear notes, regardless of the motive.

          One of the anti-malpractice pearls I recall from a presentation during residency: Imagine how every note will look projected large upon the wall of a courtroom.

        • Tracey

          No, as a seasoned RN , it is sad to know that charting counts more than your care. Every week a new paper, procedure, etc comes out. Its way too much. If you want to get it all finished, your patient care will suffer (and this is especially true when our pt:staff ratios are way over) and all you hear is “At least you have a job”. And as far as ordering tests to avoid a lawsuit, hey that is what this profession has come to. I’ve had many a patient in the hospital that had a minute annoying problem unrelated to what they were there for and as a competent nurse i’d assess it and go from there. Well if a doctor isnt there within the hour and the problem isnt solved or treated , mind you there isnt a problem half the time, then they cop an attitude and cry “Sue” . Its disgusting what goes on.

  • John Ryan

    Despite reports like this, our national leaders don’t think tort reform will help reduce medical costs. They have their own surveys, likely done at some academic center.

    • http://advocateyourself.blogspot.com Cheryl Handy

      But it is the docs who are increasing medical costs by ordering unnecessary tests. Not patients. We pts arent dumb. We can tell when docs dont trust or even like us. And I am more likely to sue a doc who I know doesn’t like or trust me.

      • John Ryan

        I don’t see the relevance to my comments. No one is accusing patients of ordering unnecessary tests. It is likely doctors are ordering tests which may be unnecessary so they don’t get sued. It doesn’t matter whether this is an effective way to avoid getting sued or not; many docs think it is. So it happens. And if you ignore this reason, as the health care reform did, you miss a chance to reduce costs.

  • paul

    this subject is like vaccines and autism. the people that need to be convinced will never be convinced.

    • http://advocateyourself.blogspot.com Cheryl Handy

      Convinced of what? That we pts need unnecessary tests? Who needs to be convinced? Patients?

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

      I think you will have a hard time convincing people that they need to be exposed to unnecessary risks and expenses just to make you feel secure. Real malpractice in defense against potential malpractice is a hard sell, indeed.

    • paul

      the two people replying to me apparently think i believe defensive medicine is a good thing.

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

    If doctors expose patients to unnecessary risks and unnecessary expenses for no other reason than to assuage their own paranoia, whose fault is that? The irony is that this kind of selfish and unprofessional behavior is a form of malpractice in itself. Yet I get the impression we are supposed to see the doctors as the “victims” here.

    It seems the answers here might be a little self-serving as well. This is hardly a double-blind study, and no doubt these surgeons realize the advantage of exaggerating the impact of malpractice on their imaging practices. I doubt many physicians will admit they order MRIs because they are getting kickbacks or have part ownership in an imaging lab, but that’s clearly part of the problem as well.

    http://www.aconsumerfraudlawyer.com/html/links/mri-scamming.html

    “Levin co-authored a study that found about $16 billion in unnecessary imaging was recommended by doctors who made money performing the tests themselves.”

    • Med/Peds Doc

      I do not disagree with you though on owning a stake in an imaging center where you refer patients. In my community, this situation is very rare or does not exist. Physician ownership of surgery centers is similar. Our profession should have a system to audit such situations and discipline physicians who refer to their own centers inappropriately for monetary gain.

    • horseshrink

      Overdetermination. One action often has multiple determinants.

      Yes, there are docs who self-refer. I make no apology for them.

      Yes, where that variable doesn’t exist, docs commonly order imaging reflexively the cover their arses.

      It’s not paranoia when the threat is real.

      And yes, Virginia, it is.

      Docs are imperfect. It’s impossible to avoid mistakes. Combine that with the incredibly potent intermittent variable reinforcement of lucrative litigation legal lotto, and you get the following from the AMA:

      “Physician advocacy groups say 60% of liability claims against doctors are dropped, withdrawn, or dismissed without payment. … An average of 95 claims were filed for every 100 physicians … greatest incidence of claims are general surgery and obstetrics/gynecology. Nearly 70 percent of physicians in those specialties were sued, and over 200 career claims were filed for every 100 physicians. … Average defense costs per claim were $40,649, ranging from a low of $22,163 among claims that were dropped, dismissed or withdrawn, to a high of over $100,000 for tried cases.” http://www.ama-assn.org/ama1/pub/upload/mm/363/prp-201001-claim-freq.pdf

      Live in our world awhile. Lawsuits suck. They leave docs with a perpetual Damocles sensation.

      Don’t know what you do for a living, but consider what it might do to your view of the world to know that the people you serve are likely to sue you.

      • http://advocateyourself.blogspot.com Cheryl Handy

        I am an attorney. People hate my profession. I understand the risk of being sued. I have also represented docs in lawsuits and injured pts in lawsuits.
        Injured patients are unlikely to sue a doc they like. As a puppy can sense when they are not liked-pts can too. Defensive charting is transparent. CYAing makes for internally inconsistent charting & plaintiff attorney’s gold mine.

        Docs need to return to simple concept of developing pt-doc relationship. Worrying about being sued will become a self fulfilling prophecy.

        • horseshrink

          I agree that the most powerful mitigator of malpractice risk is a meaningful physician/patient relationship. This does not grant immunity, though. And even with the best of physicians, abrasive interactions with patients will occur.

          Yes, litigation should be available for egregious malpractice cases. I would want that last resort available to me and my family, too.

          However, 95 claims per 100 docs? Res ipsa loquitur. That’s a LOT, and I don’t think the medical profession can singularly be blamed for that, nor can this be simplified into a mere problem of physician/patient relationships.

        • doc99

          I’m sure you’re a competent attorney, Ms. Handy. You probably handle lawsuits for a living. For you, the courtroom is where you live and the hospital or doc’s office is a potential nightmare stressor. Imagine if you will, that stress magnified at least an order of magnitude and that’s what an OB feels everytime he manages a difficult labor and delivery, hoping one that the infant is healthy and two that he won’t get that summons and complaint five years down the road. A successfully defended malpractice suit is a true Pyrrhic victory. The defendant doctor is left stressed, suspicious, out of income for the time lost from his office, and out of love for the hardship his own emotional state has wrought on his family.

          “Another victory such as this and I am undone.”
          Pyrrhus of Epirus

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

        Live in our world for a while, where the people who are supposed to help you are often grossly incompetent and unethical and can kill you or a member of your family. Try staking your life and your health on a game of Russian roulette with a medical profession that treats you as nothing but a cash cow, and which has been trained to see you as a potential enemy. You act as if the only people affected by malpractice are doctors, a common failing of physicians in debates like this, particularly those who think getting killed or injured equates to winning the lottery.

        On the other side of the coin there is a patient or a patient’s family whose life has been destroyed, but that is apparently not as worthy of mention as the relatively trivial amount of money it costs to litigate a malpractice case.

        You seem to feel that any risk you face, however slight, is justification for abandoning medical ethics and putting your patients at risk, as well as essentially defrauding them by ordering expensive tests they don’t need. The fact we have so many doctors who can so casually expose their patients to unnecessary risks solely to save themselves a trivial amount of money is one of the reasons we so desperately need tougher malpractice legislation, not so-called “reform.”

        • horseshrink

          Very bitter. I’m sorry for your experiences.

          They leave you with a highly focused, narrow view of an immense profession.

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

            My views are based on reality, not bad experiences. Your profession kills and injures hundreds of thousands of Americans each year, yet when doctors talk malpractice, it is 99 percent of the time from the perspective of a the doctor being sued. It is as if these hundreds of thousands of victims don’t even exist.

            If you don’t view patients as potential opponents in a malpractice case, what possible justification for this behavior could there be?

        • Med/Peds Doc

          You obviously have a very skewed view of our profession. The vast majority of physicians, NPs, and PAs are good people and providers. The maiming and destruction of patients you credit to us is vastly overstated.

          It is all in how you define injury to others. Is the 85 y.o. female who presented with a heart atttack, was determined only to be a candidate for IV blood thinners, received the IV anticoagulants and bled into her abdominal cavity causing death…is this our profession injuring someone? Or is it our profession trying desparately to help someone who has a known and unfortunate poor outcome after IV blood thinners? She was going to die from her heart attack anyway. Am I noble in my attempts to help her or is she part of the hundreds of thousands of patients we doctors injure or harm every year?

          I’ve got an idea, let’s do away with health care completely to eliminate all of the harm we cause. Do you think our society would be better off?

          • Med/Peds Doc

            The above comment is addressed to PH.

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

            I don’t know what percentage of medical practitioners qualify as “good people” vs “bad people.” But the fact remains there are a tremendous amount of abuses in this system and most of the “good people” remain silent about it, or attack people who point out the abuses, as you are doing here. That doesn’t strike me as the behavior of good people.

            As for the number of people killed and injured due to medical error every year, most studies that have addressed the issue are likely underestimates, for two obvious reasons:

            1. The studies are based on hospital self-reports of errors. Not all states require reporting of medical errors and even when they do, it is normal for hospitals to cover them up.

            2. They are only based on errors that occur in hospitals, and not those that occur outside of hospitals, where most medical care occurs. They also don’t cover people who are injured in hospitals but later die of their injuries outside the hopsital.

            Regardless of the actual numbers, the reaction of the medical profession as a whole is telling. It has not been to aggressively attack these problems, but to aggressively attack people who point them out.

            You present a false dichotomy between continuing our current broken, corrupt and abusive system over doing away with health care altogether. We can certainly create a health care system that is far more humane, less exploitive and less prone to destructive errors than this one is. Getting rid of the culture of cover-up and those who participate in it would be a good start.

        • elmo

          Honestly payne do you think us docs are not also fathers, mothers, husbands, wives, children of patients and patients ourselves? As a parent I first hand saw a dedicated group of doctors/hurses/staff over the course of months save my child from certain death. I owe them a debt that words cannot describe. I am a firm believer in the patient safety movement as espoused by Dr. Leape, that stated the 1999 IOM numbers you have quoted are based on retrospective data from two states going back to the early 1980′s. I am not saying they are wrong, I am saying treating a statistic as gospel as done by lawyers and the lay press is not getting to the heart of the matter. If you want to read another take on medical errors based on bias in retrospective data gathering (mining) please read the below reference. I guarantee this JAMA reference is not quoted out in the world. Even Dr Leape emphasizes most medical errors are based on system errors not individual MD screw-ups. Basic, simple steps that could be done at the national level to minimize errors are not, such as a national EMR or a national system were individual EMR’s that talk with one another or through a central clearinghouse. These are relatively simple steps that aren’t being done because simply the software vendors have payed off congress. I am sorry for your pain but my “experience” as a father of a patient is much different than yours. Horseshink happens to be correct that your bias is based on your “experience”. Just like mine. Given the same recurrent universal negativity of all of your posts on this website I suspect this is something that colors other aspects of your life and interactions with others. That is a truly sad way to live life.

          ref: JAMA. 2001 Jul 25;286(4):415-20.

          Estimating hospital deaths due to medical errors: preventability is in the eye of the reviewer.
          Hayward RA, Hofer TP.

          • MedPeds Doc

            PH,

            There are improvements that needs to be made in our current medical delivery system, no doubt. No reasonable medical provider would deny that. But honestly, after reading your recent bitter diatribes on this thread, I can only conclude that you have developed significant delusions as to the severity of outcomes related to medical errors. One can certainly point to a single terrible outcome related to a medical error, but as a whole, our system would have imploded long ago if as many patients as you report were being so severely harmed.

            Or maybe your expectations for the delivery of medical care are unreasonable. I see it in my practice everyday. People get used to seeing a medical problem solved in a one hour TV show. Many complaints I have reviewed at local hospitals and many complaints of malpractice I have reviewed as part of Medical Review Panels of physicians in my state boil down to one simple fact…people have unreasonable expectations as to what our, or any, health system can deliver within it current design.

            And BTW, I do not have enough time to explain to you how much time and effort is put forth in explaining to patients that they do not need an antibiotic, a drug to help them lose weight, etc, etc. We doctors fight that battle daily and then get criticized in our community and on the internet for “doing nothing” for any given patient. We are obviously damned any way you look at it…you say we harm by doing too much pharmacotherapy but I could find someone arguing the opposite for their viral URI or expanded waistline.

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

            What you call “recurrent negativity” and “bias” I call “balance,” which is presenting a side of the story that usually isn’t being presented here. In this case, it is the fact that malpractice is real and has real consequences for its victims. Attacking my character or the way I approach life, which you know absolutely nothing about, is a cheap shot and does little to advance your case. It also doesn’t alter the facts an iota. But I am used to character assassination in lieu of reasoned debate in these exchanges.

            I’m also not interested in anecdotes about doctors saving lives. I am not aware of anybody anywhere who denies that they sometimes do. I’m glad your child was saved. I can just as well present to you tens of thousands of horror stories of unbelievable abuse suffered by patients that sound like something out of the Gulag, or of patients being blacklisted and their medical care destroyed when they complained. Go to any online chronic pain support group and drink your fill.

            I do not treat statistics as gospel and made that quite clear. The figures (which I didn’t cite, but everyone knows them) are estimates and subject to questioning, as I also made clear. I gave reasons why I felt they were understimates. It would be nice to see my reasoning being challenged rather than my motivation.

            Conspiracy theories about software vendors bribing Congress are interesting, but there is a lot of resistance to adopting electronic medical records and other life saving technologies by doctors and hospitals themselves. If the medical profession were united and willing to adopt a singular EMR platform, I am certain they could do so without any interference from Congress. The fact that they can’t, or won’t, is the result of market failure arising within the system itself.

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

            @ MedPeds Doc

            You make the exaggerated and unsubstantiated claim that every patient is a potential malpractice lawsuit, and call my opinions delusional?

            Let’s do a reality check here: You see thousands of patients every year, right? You see tens of thousands of patients in the course of a career, right?
            Now, how many times have you been sued? A thousand, ten thousand times?

            Get the picture? The risk, overall, is actually minimal, but you are literally treating tens of thousand of patients as potential litigants to protect against what is typically a once in a career event. You have adopted a hostile and bigoted view towards your patients based on an experience with a handful that you may or may not have even had. The error in this kind of thinking is obvious to any reasonable person.

            In doing so, you are violating medial ethics, and exposing all those patients to excess costs and unnecessary risks which could even lead to death. You can accuse me of exaggerating the problem of malpractice all you like, but even one injury or death due to defensive medicine is too high a price in the mind of any civilized person.

            BTW, when you try to rationalize this kind of distorted logic to us patients, it doesn’t exactly come across as a ringing endorsement of your profession, particularly not to anyone who sees patients as individuals, and not some malignant caricature.

            The fact we are even debating this is thoroughly depressing to me.

          • MedPeds Doc

            PH,

            Every patient encounter is a potential malpractice case, unfortunately. A local OB was sued because a very healthy neonate was born with a scalp bruise–> big head plus small birth canal = chance of bruise. First day in the Nursery we are taught to differentiate between types scalp bruises. Lawyers in my state review charts on colon cancer patients (if such patients call their 1-800 numbers) to see if they were offered appropriate colon cancer screening. Thus, we have to carefully document every time we offer them colon cancer screening that they do not desire it. I have 10 more frivolous cases/threats of cases I can recount if you like. These are best examples I can give you that every interaction has the potential for eventual litigation…it is unfortunate reality.

            Now you are making false assumptions. I hope that patients do not ever believe I am treating them a certain way to protect myself. But clearly writing in capital letters in my note that patient does not desire colonoscopy for whatever reason is defensive medicine but does not harm patients. I trust this was not a distraction to them during our encounter. I constantly strive to treat patients with respect but know in the background that there is always a chance of litigation. I guess you will have to take my word on that one.

            I reject your statement that I have violated any medical ethics and refer to my above example to illustrate how defensive medicine exists but at no cost to the system or the patient. You assume all defensive medicine involves more tests, and that again, is a false assumption. I can honestly say that I cannot remember ordering an imaging test I did not think was warranted…except for once. And this was when I family memeber commented that they hoped I was correct about their mom and not missing anything. He said “I would pay for it.” I asked if the MRI of brain would make him that much more comfortable, and he said it would. So I ordered it. Was I right or wrong to give in? You will certainly judge me. I can live with my decision.

            No one has yet to bring up the emotional and physical toll that is caused to a MD when they are sued, rightfully or not (most cases). It is devastating. I worry every day that I have made the correct treatment decisions on my patients’ behalf…that is exhausting enough. Many OB/GYNs are giving up OB early (at the expense of the community they work in) because they cannot deal emotionally with the potential of malpractice claims. A topic for another thread.

          • elmo

            Payne:
            No character attack was made nor intended. Simply an observation as to your recurrent theme on this website. Apparently I am not the only one. Your offense taken and response is a little much. As for my child, the disease was a death sentence 30 plus years ago. Now the survival rate is greater than 90% thanks to the professions you vilify. This isn’t an anecdote rather the medical truth. Lastly, the fractured nature of our medical care is a major problem with medical errors and we all know it. I an actively involved in patient safety at my own hospital and see the results.

      • http://www.ServantLawyership.com Kathleen Clark

        Horseshrink: I am an attorney, writing about, speaking about, holding professional development sessions about, and using nonadversarial, voluntary practices in medical error situations. I asked the AMA if I could design and administer (or even just design) a survey for them that included questions about physicians’ responsibilities before litigation, i.e. was there disclosure, offer of compensation, apology. I never received a response. One physician associated with the AMA, who I wrote to on a separate occasion (after reading one of his statements about litigation), wrote back to me, calling medical malpractice litigation “jackpot justice”, but did not repond to my suggestion about a survey. I wanted to start a conversation with him about these issues, about everyone taking her/his share of responsibility for the litigaiton process; what I received was “jackpot justice”, throwing blame back on me, the lawyer among lawyers. What does it say that no physician/association of physicians even responds to this suggestion, including right here in Kevin MD, that no physician is even willing to have the conversation?
        What is your opinion?

        • horseshrink

          As a profession, physicians are sworn to “first do no harm” to attorneys. By design, there’s no reciprocity of beneficence by the legal profession.

          Thus, the medical profession is fated to feel more victimized by the legal profession than vice versa. Doctors accidently hurt attorneys. Attorneys hurt doctors on purpose.

          As an attorney, you ask for trust and cooperation from a group with little incentive to trust you.

          The image that comes to mind … when an attorney advocates physician apology for conflict resolution … is of a boxer who is advised by his opponent to let down his guard … “and I won’t hit you as hard … promise!”

          That said … I do firmly believe earnest apology must be available to use with some degree of safety. Through the course of human history, apology has proven a critically healing event for the injured – and the injuring.

          Can an attorney successfully nurture this among physicians? Do so and the Catholic Church may canonize you!

  • jenga

    Paul, I never seen it put any better than your short statement.

  • http://EmrgncyMD@att.net George Hossfeld MD

    As a practicing emergency physician of 32 years, I can speak to this with almost 100,000 patient visit experience. In my practice, in Cook County (Chicago) IL, we are sued every 4 years on average. I have consulted on many cases as an expert witness and the fact that a malpractice jury consists of a jury of the plaintiff’s (not the doctor’s) peers leads to all kind of ridiculous cases. Many of these will be successful since most juries feel that a bad outcome implies bad medicine. The Illinois State Medical Society recently polled members regarding their use of diagnostics for defensive medicine and found ~ 28% of all x rays, labs, CTs, MRIs, and consults were done primarily for defensive medicine purposes. You can make whatever accusations you want about doctors, but I have never met one who didn’t go into medicine for altruistic reasons. This view of every patient as a potential plaintiff is a learned one and very sad to most of us. It is reality, however.

    • http://advocateyourself.blogspot.com Cheryl Handy

      Dr Hossfeld-

      According to Med/Ped Doc, distrust of patients starts when docs first learn to chart, That has zero to do w what docs learn through time & everything to do w how docs indoctrinate young docs to distrust pts. How sad.

      It’s a vicious cycle: docs distrust pts & that makes pts distrust docs. If med treatment goes south, why not sue doc who didnt even trust or like the pt?

      Someone has to stop cycle. It can’t be legislated through tort reform. Forget attys & govts. Cycle of distrust must stop b/t pts & docs. If docs stop distrusting pts & show concern for pt, that would be a great beginning. What about it? Too hard? Doesn’t matter?

      • horseshrink

        Is your profession willing to remove all those hungry, oversized ads that loudly encourage litigation?

        You ask a lot (too much?) by expecting us, unilaterally, to stop being nervous about Damocles sword.

      • Med/Peds Doc

        CH,

        “According to Med/Ped Doc, distrust of patients starts when docs first learn to chart, That has zero to do w what docs learn through time & everything to do w how docs indoctrinate young docs to distrust pts.”

        Please re-read my original post. This is nothing close to what I said. You have taken 2 different thoughts of mine and melded them into one to try to make your point. This is what you are taught to do in law school, I guess.

        I said that we are taught from the beginning of our clinical rotations that our charting is the only real way we have to defend ourselves in court. Our “distrust” of patient encounters (or probably more acccurately our defenses that do not allow us to fully trust any patient encounter) are learned over a period of time based on our experiences. Please do not attribute things to me that I did not say.

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

      It is estimated that Ct scans cause an additional 29,000 cases of cancer every year, If 20 percent of those scans were ordered solely for defensive medicine purposes, we are looking at 6,000 people developing cancer every year just so doctors can avoid what amounts to a once or twice in a career risk of being sued for malpractice. In other words, they are willing to commit malpractice to avoid being sued for it, with no evidence that they are in fact minimizing their risk.

      That is a peculiar form of altruism.

      http://blogs.wsj.com/health/2009/12/14/how-much-does-a-ct-scan-raise-the-risk-of-cancer/

      • horseshrink

        Scylla and Charybdis for those who must make the decisions.

        Easy target for criticism for those who don’t.

      • Jack

        IF the CT scan risk is true then it would have already been pulled from use because that mean it cause cancer in 4% of patients that have been exposed to these type of radiation.

        I really like to see support of this information. WSJ didn’t even list the papers that it wants to quote.

        Watch “The Vanishing Oath”. It talks about doctors and the current medical climate seen from our eyes. Maybe if you/government make our jobs easier, we can spend more time taking care of you.

        http://www.crashcartproductions.com/vanishing-oath/

  • http://advocateyourself.blogspot.com Cheryl Handy

    horselink-
    The ads are unprofessional & an embarrassment. No atty should encourage litigation. And there are too many unethical, dishonest attys. No. I don’t expect docs to make all the changes. We need the extra (troublemaking) ppl to get out of the exam room.

    The pt/doc relationship worsens as more entities, people, govts come between pt & doc. Attys, insurance companies, govts have all forced themselves into pt/doc relationship. The more that relationship can exist (w/o interference from others who survive financially only because we distrust each other), the better outcome both pt & doc will have.

    Medicare, managed care, ObamaCare all interfere w pt/doc relationship. Medical reform – IMHO, the focus must be on creating an atmosphere where docs can practice medicine without interference from govt, insurance companies, attys. It wouldn’t be that hard.

    • Med/Peds Doc

      CH,

      Bravo. Full endorsement of this entry.

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

      It would be nice if competent, ethical doctors could practice medicine without interference from third parties. But that would first require that the medical profession address the hundreds billions of dollars in fraud that occur in the system, eliminate the epidemic of unnecessary surgeries, scripts, procedures and irresponsible prescribing of drugs like antibiotics. There would have to be real efforts to address the egregious rate of medical errors and the appalling body count they produce each year. Aggressive enforcement against abusive treatment of co-workers, nurses and patients is desperately needed and practitioners with personality disorders who can’t control their own behavior need to be driven out of the system.

      Unfortunately, the medical profession is notoriously ineffective and unwilling to police itself. There is a code of omerta among medical professionals where they are required to remain silent about abuses. When honorable doctors and nurses do speak out, they often find themselves ostracized by their colleagues and blacklisted by potential employers.

      So long as these problems remain, outside interference remains a necessity.

  • horseshrink

    Nicely said. Unexpected and welcome common ground.

    But, the children of IBM’s super computer, Watson, may obviate physicians and make all this wrangling moot. (… tongue in cheek (hopefully))

    Then bureaucrats. politicians, and insurance gnomes could attach their marionette strings to medically practicing computers. I’m trying to figure out how attorneys would deal with malpractice claims, though. Who would the defendant be?

  • http://advocateyourself.blogspot.com Cheryl Handy

    Patients:
    Suing a doc will not make doc accountable or patients safer. We can start making doc/pt relationship better by letting doc practice medicine. If you have insurance probs, you call insurance instead of bugging doc’s staff. If you are unhappy w care, don’t run to an atty-talk to the doc. Stop expecting govt to get you free medical care. Don’t waste medical resources by going to ED for a “runny nose.”. Take some responsibility for your own health.

    Patients & docs should talk about tests. Ask why tests are being done. Ask if defensive. Docs have had govts, insurance comp, attys attempt to marginalize their profession. That makes pts commodities. Both are wrong. Pts/docs should be allies & not suspicious of one another. Once trust breaks completely down, govts, ins companies & attys win.

    If pts continue to expect free medical care whenever they want it, we are going to be left with horrible medical care. Medical care is not free & it comes with risks. Every treatment has risks. Every medicine can be a poison.

    • horseshrink

      Yup.

    • Guest

      I tried to talk to my doctor several times about the problem, but the doctor won’t talk to me. Their office has no procedure for handling complaints.

      No, I’m not going to sue.

      Doing my part…

      • Jack

        Then it’s time to change offices. Every physician office should have a procedure for handling complaints. You have a right to an explanation. If you don’t then time to change doctors.

        BTW, thank you CH. It’s nice to hear some attorneys still have people’s best interest in heart. Only if we can get more politicians………….

        It’s really too bad that people who wants things to get better often have the least support. Medicine has too many powerful special interest group interfering the physician/patient relationship.

        • Guest

          Thanks, but I was unofficially terminated (no letter, just a rude verbal dismissal). I found another doctor, who diagnosed me correctly. It’s a bad, progressive disease. I’ve tried contacting the problem doctor’s office by letter and phone to discuss the rudeness and the missed diagnosis. Outcome? More rudeness from staff – on the advice of the doctor’s attorney, maybe? There don’t seem to be any non-punitive options that could make everyone feel better, which is what I wanted.

          “It’s really too bad that people who wants things to get better often have the least support.” Yeah…

  • http://advocateyourself.blogspot.com Cheryl Handy

    Med/Peds DOc

    Med/Peds Doc said “[w]e are taught from the beginning to write hospital and clinic notes in a way that you could defend your actions in court…b/c the potential is there for EVERY interaction.”

    According to your post, you were “taught from the beginning” to chart in a defensive manner. Presumably, you were taught by someone with more experience that pts are not trustworthy. The logical conclusion is that “teachers” are instructing “students” to be distrustful of patients. I learned basic logic in undergraduate school.

    If that is not what you meant to say then okay. I just used your own words. Physicians would be much better clinicians if they met each pt w a clean slate & presumption that each pt is trustworthy.

    • MedPeds Doc

      CH,

      Not necessarily the only conclusion…but yours is one conclusion. Another conclusion could be my teacher taught me to document my thoughts and actions well enough to defend myself in court and that thoroughness will naturally lead to a note that accurately documents events for consultants who see that patient and allows good continuity when care of that patient is passed to another provider. This goal would be independent of whether I trust a patient or not. Again, distrust is something that is a learned behavior as we get biased by experiences.

      I should probably back-up a bit. When I first used the phrase “distrust for patients”, that was probably a bit strong. I should have framed better a “healthy lack of absolute trust in patients.” 95 lawsuits per 100 docs will lead to that “healthy lack of absolute trust.” If there are 95 crimes per 100 US travelers to Mexico, you will not travel to Mexico or travel extremely carefully.

      • Guest

        I don’t see anything wrong with the charting. In my field, we also have to keep thorough records of our work and it has nothing to do with distrust.

        What’s so much worse is the way that learned distrust can lead to defensive scans, and sometimes downright meanness toward the patient. I have a somewhat rare disease that took a long time to diagnose. There were a few defensive scans along the way. Imaging is not that helpful for some diseases, but my experience has been that doctors can be incredibly nasty toward a patient with a still – uncertain diagnosis after an expensive CYA test turns out to be normal.

  • http://www.ServantLawyership.com Kathleen Clark

    Dear Med/Ped Doc: Do you always practice disclosure, have a continuing conversation with your patients? Even when you are assured that you did not make an error? Do you talk to the patients and explain the process, give the patient an opportunity to ask questions and be heard? Do the physicians you mention who have been sued always practice disclosure with their patients?
    There are so many statistics that the medical community cite about “frivolous” lawsuits. Are they really frivolous or are many of them patients looking for answers they should have gotten from their physicians?
    I don’t know the answers, but as long as physicians and their insurers NEVER address these issues, we are working with only half the information we need to have this conversation.
    Speaking of Texas, read Atul Gawande in the New Yorker (about two years ago) on the most expensive medical care in the country: McAllen, TEXAS.

  • Matt

    So what’s the solution? We’ve tried damage caps and that hasn’t worked.

    • http://www.ServantLawyership.com Kathleen Clark

      Statutes that provide for damage caps, higher burden of proof, early expert evaluations, and the like have been enacted after consideration of half of the responsibility for medical malpractice litigation. The half that is still to be addressed is the physicians’ responsibility for litigation; by that I mean, what did the physician do to immediately disclose, apologize, reengage with patient, improve patient safety for future patients, and repair broken relationship. If the physician, for whatever reason, did not disclose, meet with the patient/family and waited to be served with a complaint, then the physician bears some responsibility for litigation. This is NOT to say the physician was negligent in treatment of the patient; rather, it is to say the physician may very well have been able to prevent litigation. When will that become part of the conversation? When will the conversation expand from blaming patients and attorneys to the responsibilities of all the parties that bring about litigation? This is NOT about blaming anyone. This is looking fairly at the responsibilitites of ALL parties/attorneys.

    • http://patientsafety-advocateyourself.blogspot.com/ Cheryl Handy

      “sorry works” legislation.

  • http://www.ServantLawyership.com Kathleen Clark

    Just turned back to something I’m reading. “The practice of wisdom can also help with the management of difficult, contentious problems of public policy without falling back on cliches and stereotyping.” Charles Halpern: Making Waves and Riding the Currents: Activism and the Practice of Wisdom.

  • http://www.ServantLawyership.com Kathleen Clark

    You can criticize and stereotype me as much as you want. I’m still hoping you’ll answer my question.

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