On the Defense and Driving Up Costs: Doctors’ Diagnostic Choices Dictated by Fear Not Fact

For decades, many physicians have been pushing for comprehensive tort reform on the national level. Malpractice claims in the US are twice those of other developed countries such as England, Canada and Germany. Payouts in a US claim can easily reach 3 million dollars or more, in Germany most claims are around 30K dollars or less. A survey conducted by RAND in 2011 estimates that 99% of American physicians in high-risk specialties such as neurosurgery will face a lawsuit at least once in their career—In Europe, that number is only 20%. All the while, the costs of healthcare in the US are skyrocketing and the Affordable Care Act has been ineffective in reducing costs. While there are many causes of the inflated costs of care in the US, the ACA only addresses a few and leaves others unchecked.

Recently, an observational study of the relationship between physician spending and risk for malpractice claims was conducted in the US and the results were published in the British Medical Journal in October 2015. In the study, hospital data for more than 24K physicians were sampled and the investigators found that the higher the resource use, the lower the risk for malpractice claims—in a nutshell, doctors who ordered more tests were significantly less likely to be sued for malpractice. This finding was consistent across 6 of 7 different specialties evaluated and was particularly pronounced in Obstetrics. Defensive medicine, defined as medical decision-making and care provided solely for the purpose of avoiding malpractice litigation, accounts for a significant proportion of healthcare costs in the US today. Physicians, while striving to provide excellent care for their patients are faced with the harsh realities of our litigenous society—many are always looking over their shoulders for the next “ambulance chaser” to appear. In medical school, physicians are taught to think like Sherlock Holmes. When a patient presents with a set of symptoms and physical findings, we develop a differential diagnosis (a list of possible etiologies) and then we work to eliminate the possibilities through logic and objective data. The role of diagnostic testing is to help eliminate or confirm a particular diagnosis and allows physicians to zero in on a particular cause so that therapy may be initiated quickly. In many cases, a diagnosis can be confirmed simply by talking to and examining the patient—the Medical History and Physical Exam—which is becoming a lost art.

When defensive medicine is practiced, the entire system is perturbed. Why would we order a test when it is unlikely to substantially change what we do—Think “fork in the road”. If a test is ordered, the result should point us one direction or the other.


So, just how can we expect to lower healthcare costs if we are playing defense in the clinics and emergency rooms of America? How does defensive medicine impact patients?

Data such as those recently provided by the BMJ suggests that the practice of defensive medicine is on the rise. It is also very clear that the over utilization of testing is a major contributor to the high costs of healthcare in the US. As physicians we are taught that the best time to order a test is when we have an intermediate index of suspicion or pre test probability of the presence of a particular disease state or finding—employing Bayesian statistics. If our pre test possibility is high then no testing is necessary—simply proceed with a therapeutic intervention. Conversely, if our pre test probability is determined to be quite low then no testing should be performed—simply move on to another diagnosis.

Defensive medicine and over testing effectively negates our statistical advantage when making a diagnosis. Multiple unneeded tests are ordered and sometimes these tests have false positive findings that may result in further testing and even unnecessary procedures. These procedures often are associated with complications—all of which could be avoided by more responsible and judicious use of diagnostic tests. Moreover, patients must deal with the psychological impacts that having a false positive test result often produces.

We must all work to continue to push for tort reform. Only by removing the motivation for frivolous medical lawsuits will we be able to better contain costs and limit testing to those tests that are clinically indicated. While physicians must be held accountable for their decisions and their actions (as well as their clinical judgment and thought processes), we must insist that there are more reasonable caps placed on damages. Those attorneys who repeatedly introduce ridiculous and frivolous complaints must be held accountable for the costs and waste that they place on the system. Until then, we will not be successful in curtailing costs and good physicians will continue to feel compelled to play defense in the clinic.




2 responses to “On the Defense and Driving Up Costs: Doctors’ Diagnostic Choices Dictated by Fear Not Fact

  1. Doctors, like every other professional (including lawyers), do make mistakes. When those mistakes are made, the unfortunate patient should be able to receive a full recovery for his damages- damages which can sometimes be quite expensive and extensive with permanent consequences. Therefore, arbitrarily imposing caps on damages that may be recovered is unfair to the patient who has been harmed as a result of the doctor’s mistakes. Contrary to what members of the general public and, in many cases, the medical profession believe, frivolous professional malpractice lawsuits are seldom filed. In my state (South Carolina), before a professional malpractice case can be filed, a professional in the same area of specialty as the Defendant professional must have reviewed the evidence and provided an Affidavit listing the specific duties of care from which the professional deviated in his treatment of the Plaintiff. This pre-filing requirement insures that there is at least some evidence of negligence on the part of the professional before the suit is filed. In my experience, often the real problem with healthcare is not that it is being driven by malpractice lawsuits, but that there are arbitrary controls placed on both the patient and the physician by health insurers who greatly influence the direction and extent to which diagnostic testing and treatment is given. Another factor is the cozy relationships between physicians and hospitals that provide the testing. Many physicians are actually associates (employees) of the hospital systems and are encouraged to utilize the costly diagnostic testing provided by for-profit hospital corporations. Business is business with for-profit hospitals, and when they buy incredibly expensive testing equipment, they are looking to turn a profit through its use. Tort reform consisting of damage arbitrary caps for patients harmed due to the negligence of a physician is unfair and inequitable. There may be some basis for considering limits on punitive damage awards which are designed to punish particularly egregious conduct on the part of a professional. For example, I know of a case in which a substantial punitive damage award was made by a jury against an anesthesiologist who, instead of properly supervising the administration of anesthesia to a patient undergoing an orthopaedic procedure, was on the telephone with his investment broker discussing the performance of his retirement account, when the patient went into cardiac arrest due to inappropriate anesthetization and died. Again, in my state (as in most states due to rulings by the United States Supreme Court on the issue of punitive damages), there is a detailed post-trial review of any punitive damages award to insure that the circumstances and the amount of the punitive damage award are fair and reasonable given the conduct of the Defendant. “Tort reform” are buzz words that politicians like to throw out in campaigns as meat to conservative audiences. But before such reforms are considered, remember the unfortunate patients who are harmed by the negligence of their doctors.

    • Thanks so much for taking the time to read and reply to my blog. I will have to respectfully disagree with many of your assertions. While I completely defer to you on knowledge of the law, I do believe that until we have meaningful tort reform, costs will continue to rise. For example, if you turn on the TV today, you are likely to see ads put forward by large law firms asking patients to call a 1-800 number if they are taking a particular drug known as xarelto. Xarelto is a FDA approved drug–safe and effective–for anticoagulation in the setting of atrial fibrillation and DVT. Like any anticoagulation drug, there are side effects–particularly bleeding. In some cases these side effects can be life threatening. However, the use of the drug is warranted in atrial fibrillation in order to prevent stroke. Direct to consumer marketing by lawyers is simply a way to generate cases and revenue for lawsuits against physicians who are doing what the preponderance of the data suggests is right for the patient. THIS is the type of behavior that continues to drive up costs. While reimbursement continues to decline, physicians must maintain Med Mal insurance with high premiums.

      Ultimately, patients suffer. There is no reason for the “John Edward-s” of the world to exist. These types of attorneys are self serving and have little real concern for the well being of patients. while I do agree with you that patients must be protected from poor decision making and bad outcomes due to negligence—I do not think that predatory law practices should be allowed to continue to “go fishing” for clients without some regulation and oversight.

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