• There’s much more to “defensive medicine” than the perceived risk of a malpractice suit Friday, February 25, 2011

    Doctors are afraid of being unjustly sued for malpractice, the story goes, and so they order tests and procedures for patients even though they believe them to be medically unnecessary. That way they can say they tried everything, in the event something goes wrong and the patient (or his/her surviving family members) files a lawsuit.

    This would be the definition of “defensive medicine,” which is always used to indicate unnecessary procedures that waste money and add to the cost of health care. Just how many procedures meet this definition, and how much is spent on them, is impossible to ascertain with any certainty, despite several studies that claim to do so.

    In part that uncertainty is because there’s a fine line separating a doctor’s fear of being second-guessed and a legitimate interest in practicing a different kind of “defensive medicine”: defending the patient’s health by making sure an underlying factor or contributing cause isn’t overlooked. There don’t seem to have been any attempts to measure the lives saved or impact on patient health that resulted from procedures doctors ordered despite thinking they were unnecessary.

    Dr. Jesse Pines

    To the extent that unnecessary “defensive medicine” exists, the perceived threat of malpractice suits may be just a minor factor. A thoughtful essay on TIME.com by Dr. Jesse Pines, director of the Center for Health Care Quality at George Washington University, and Dr. Zachary Meisel, emergency physician at the University of Pennsylvania, addresses the subject. Among other things, the authors hypothesize doctors may be interested in shielding themselves from second-guessing, not in the event of a lawsuit, but in the event they are held accountable for misdiagnosis by their peers:

    …let’s for a moment talk about some of the other motivators for overtesting, like having to stand up in a forum called a “morbidity and mortality” (M&M) conference and talk about mistakes. Dreaded M&Ms, which are held regularly at hospitals as a postmortem of failed medical cases, are much more common than relatively rare malpractice suits. Once a doctor has presented an M&M, she will probably never make that same mistake again — but she may start ordering more tests on her patients for minor symptoms. Of course, M&Ms are never held to explain cases in which all the tests a doctor ordered come back negative.

    (Notice the reference to “relatively rare malpractice suits.”) Pines and Meisel also point to a cultural difference that may lead younger doctors, in particular, to put greater reliance on CT scans and other radiology tests: “new doctors can’t function without them.”

    Lately, radiology tests have become a crutch: doctors in training are no longer taught how to distinguish patients who need testing from those who don’t. A decade ago, a surgeon would spend time interviewing and carefully examining a patient to help decide if he or she needed a CT. Now, many surgeons, especially the younger ones, won’t see a patient until the CT is complete. Testing has become more of a reflex than a higher-level decision….ordering a test — cost aside — takes less effort than spending the time to think about whether it’s really needed.

    The authors believe that explains why a recent study showing one-third or more of some kinds of radiology tests were ordered for “defensive” reasons (in that the physician thought they were not medically necessary) also showed that younger doctors were less likely that their elders to characterize the procedures as “defensive.” Pines and Meisel posit that new doctors are likely to consider the tests “the standard way to make a diagnosis” rather than something done to cover one’s backside. (The study in question has some issues that call the results into question, not the least of which being the self-selection of the doctors who reported, but that is the subject for another post.)

    There are sound reasons to eliminate truly unnecessary medical imaging; not only would it save money, it would also spare patients the risk of overexposure to medical radiation, which can increase the risk of developing cancer. But that comes back to the question: what is necessary? As Pines and Meisel point out,

    In fairness, CT results can be often better than even a senior surgeon’s medical opinion. It also makes sense for patients: you want your surgeon to be darn sure before they operate on you.

    Even though they say worry about malpractice suits is only one of the factors that lead to unnecessary testing, Pines and Meisel advocate for several measures they think will decrease the number of suits filed, or at least the amount paid to victims of negligence. Those measures include a cap on non-economic damages, raising the standard for malpractice for physicians in some specialties (such as emergency medicine) to gross negligence, and taking malpractice case out of the hands of juries and putting them in the hands of medical tribunals. We disagree with these remedies because they are anti-consumer; in various ways they are unfair to the poor, the young, the elderly and victims of the worst forms of medical negligence, and they reduce accountability for negligent acts.

    And those measures address “unnecessary” testing only to the extent to which those tests are related to the threat of lawsuits. If the goal is to reduce unnecessary radiology tests, Pines and Meisel offer some suggestions that go to the heart of the issue:

    • 1) Developing “better tests that don’t require expensive imaging,” for instance, a simple blood test that would rule out problems without resorting to an MRI. This may be easier said than done, but it seems a worthy goal.
    • 2) Learning more about what types of patients really benefit from imaging, and making that information more easily accessible. “When evidence does exist, doctors often don’t apply it because it’s hard to remember in a busy practice or hectic ER. Testing-decision rules should be integrated through real-time computerization, so doctors can see the evidence every time they consider ordering a test.”
    • 3) Measuring the rates at which tests are ordered by particular doctors and hospitals and making that information public, to “rein in overtesting.”
    • 4) Changing reimbursement practices so that doctors are paid “per episode of care, instead of à la carte, for services: if a doctor gets a fixed price for diagnosing and treating a condition, she stands to lose if she tests unnecessarily.”

    Of course, the object should not be to reduce testing for its own sake; there are harms caused by undertesting just as there are by overtesting. Whatever standards are developed for the “right” criteria for testing, they will surely change over time as technology and knowledge evolve. And no doubt there will always be what are, in hindsight, “unnecessary” tests ordered…and what are, in hindsight, necessary tests that weren’t performed.

    At any rate, don’t fall for the canard that expensive, risky, unnecessary tests performed in the name of “defensive medicine” are solely the result of frivolous malpractice suits or unjustifiable jury awards…or the corollary, unstated, assumption that patients injured, crippled, disfigured, left sterile or killed by malpractice don’t merit compensation.

    –J.G. Preston

  • It’s common courtesy: Ask before recording calls–or risk a suit
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  • Why the stories you’ve read about doctors performing “unnecessary tests” aren’t entirely accurate
  • Case study: reducing malpractice payouts, not by capping damage awards, but by reducing malpractice
  • You’ve paid $3 million to settle malpractice suits? Welcome to Texas, podnah!

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