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March 13, 2006

Defensive Medicine

One of my least favorite detours in the health policy debate is the inevitable stroll down Defensive Medicine Avenue. The trajectory is something like this: Conservative Bob brings up malpractice suits. Communist Klein notes that the entire costs of medical malpractice -- lawyer fees, settlements, insurance premiums, everything -- are .46 of one percent of health spending in this country. Ouch. ConservaBob, reeling, throws his hail mary: defensive medicine.

Defensive medicine, henceforth DM, denotes otherwise useless procedures ordered by doctors afraid of lawsuits. Health wonk Kate Steadman, who thinks it bull, reviews the literature here. Health professional Shadowfax argues the other side here. Young physician Graham Walker stakes out the middle ground here. I fall closest to Kate, but I think the whole conversation is a red herring.

DM exists, to be sure, but it's not caused by lawsuits. It's caused by patients. If you define DM as procedures that wouldn't be ordered in a perfectly logical world, there's plenty of it. But the reason most of these tests are run has little to do with the abstract possibility of a lawsuit that the doctor is insured against anyway. They're done in order convert probabilistic diagnoses into virtual certainties.

Most malpractice suits relate to care gone wrong -- an incorrectly amputated arm, say. They're not the issue. The suits in question ask why a doctor didn't order X test or procedure. That procedure, in retrospect, was necessary. The overwhelming majority of what's considered DM are these procedures, tests and treatments that are likely unecessary but, if they aren't, will catch or cure something deadly. When they're ordered preemptively, conservatives call them defensive medicine (and when they catch something, we simply call them "treatment"). But they weren't ordered to fend off a lawsuit, they were ordered fend off death.

We have a medical system largely run off physician say-so, and physicians are human. Since they're not responsible for the macro (the medical budget) but the micro (the individual), they treat for certainty, not savings. Treatments a computer program would, on the merits, deny, they approve. If conservatives want to kill DM, the way to do so is easy: rationing, bureaucracy, spending caps. HMO's have taken us some of the way, it wouldn't be hard to go the final distance. But what conservatives hate isn't DM, but trial lawyers, and so we get trapped in an endless, ancillary argument over medical malpractice. It's a red herring that distracts from a more important conversation and it should be treated, and discarded, as such.

(Cross-posted at Tapped)

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Study: Aspirin, Plavix Combo Harmful

Posted by: CHARLES | Mar 13, 2006 5:17:24 PM

It doesn't take a long memory to recall how early, often and simplistically the Republican/Conservative politicians and policy thinkers have raised the 'nanny government' label as a rebuke to liberals, progressives and Democrats. Yet these same conservatives who claim to support small government and federalism seem to want to intrude the federal government into deeply personal and local situational issues in medicine (and other social issues) - far more intrusively and impersonally than a helpful and concerned grandmother. They want command and control medicine, top down.

Thanks Ezra for the slapdown on malpractice reform (read: insurance company bailouts) and defensive medicine.

Posted by: JimPortlandOR | Mar 13, 2006 5:33:37 PM

What is the deal with these spammers posting links to Fox News articles? I'm starting to see them all over the place. Where are they coming from? And how do they get through, when other spammers fail?

Posted by: Neil the Ethical Werewolf | Mar 13, 2006 6:22:21 PM

Terry Schiavo is a good example of a doc who failed to practice defensive medicine -- which wouldn't have helped one iota -- and still lost a malpractice suit. Her infertility OB (!!!) failed to check her potassium when she was not vomiting and lost the malpractice suit since her potassium was low when she had been vomiting. If he had tested, he could have said, "See, it was normal when I checked" and gotten off, but since he hadn't ever tested, he was on the hook for nearly $1M (would have been $50K less if he'd been in a state with a MICRA type cap, not nothing as my fellow liberals are prone to claiming).

It's hard to tell what is defensive medicine and what isn't. A lot of uselss testing is due to consumer preference, too. The U.S. Preventive Services Task Force doesn't recommend yearly physicals or routine "bloodwork" (i.e. yearly metabolic tests and blood counts), but how many people get them anyway? There are a lot of reasons why docs order it, even though the number of false positives far exceeds the number of true positives. CYA, customer satisfaction, and convenience all play a role and it's hard to assign a percentage to each.

In the office where I used to work, I was always being warned that I was risking malpractice by doing Paps on 16 and 17 year old women since I'm an internist instead of a pediatrician. In the current office, they are always warning me that I'm risking malpractice by prescribing more than 3 months of meds at a time. Both of those beliefs are B.S. -- neither is risky for the patient and neither would be likely to cause one to lose a malpractice suit should something go wrong -- but that's the culture of the practice. Unfortunately, there is lots of magical thinking about how to avoid malpractice out there.

Posted by: J Bean | Mar 13, 2006 6:38:52 PM

Unfortunately, there is lots of magical thinking about how to avoid malpractice out there.

We can add to that the pervasive, baseless belief that malpractice lawsuits are a huge, HUGE problem whose costs ARE SPIRALING OUT OF CONTROL. Whether this is true is less important that whether doctors think this is true.

What is missing from the debate, though, is anything of the psychological dimension to practicing medicine. If a doctor is struggling to find a diagnosis, will the idea of missing something that later produces a lawsuit cross her mind? Sure. But is that really the reason for ordering diagnostic tests, or is it the difficulty of finding the diagnosis? Or, in the case a "slam-dunk" diagnosis where they still order likely "unnecessary" tests, is the problem really a fear of lawsuits or the fact that for all the science involved, medicine is really an art, and every student and young doctor is told of times that an enterprising doctor doggedly orders more tests in the face of opposition and is proved right?

Three years ago I was suffering from temps up in the 104-105 range, extreme lethargy, chills, sweats, and this lasted for several weeks. I ended up in the ER a couple of times. They tested me for TB, did a bunch of X-rays, EKG (I had some breathing problems as well) and some others. They didn't test me for West Nile, even though my symptoms matched West Nile symptoms. Same with spinal meningitis. The physicians discussed these conditions with me, but "felt" (that's the word they all used) they weren't necessary. I guess I found the only 3 doctors in the whole country that aren't consumed with malpractice worry and practicing defensive medicine with every patient.

BTW, I had Mono. Finally went to an infectious disease specialist who figured it out. And you don't want to have Mono as an adult.

Posted by: Stephen | Mar 13, 2006 7:11:02 PM

I think you're right about defensive medicine being patient-driven. One example is the misuse of antibiotics. Patients will often demand antibiotics for viral infections (antibiotics don't work against viruses and this misuse only accelerates the evolution of antibiotic resistance unnecessarily). Too often, either the doctor gives in, or the patient shops around until they find a doctor that will prescribe antibiotics.

Posted by: Mike the Mad Biologist | Mar 13, 2006 7:56:41 PM

Defensive medicine for the most part isn't about doing tests to make an elusive diagnosis. Sometimes you just have to go down a few blind alleys before you get headed in the right direction and sometimes you can't make a diagnosis until a medical problem has had some time to completely evolve. Mono is a good example of that. It's a casual term for a couple of viruses that may have a brief, flu-like course or may have a more extended course and it won't be at all obvious at first that the course will be more than any other viral illness.

However, there is a tremendous amount of "routine" testing that is strictly for CYA and customer satisfaction purposes. The yearly physical and it's associated tests are just one example. People come walking into clinic all the time with twisted ankles that have mostly or completely recovered and ask for x-rays "just to make sure" it isn't broken. Women without uteruses get yearly Paps to rule out vaginal cancer even though it's a rare cancer that is even more rarely detected by Pap smear. I could go on and on.

All of this unnecessary testing is driven by a combination of forces and it's hard to figure out how to stop it.

Posted by: J Bean | Mar 13, 2006 8:36:04 PM

All of this unnecessary testing is driven by a combination of forces and it's hard to figure out how to stop it.

And that is the best assessment of the range of problems with which we are faced in our healthcare system.

Though I might quibble with the idea of "all of this unnecessary testing." At what point is it unnecessary? There are many tests done that are negative, are all of them unnecessary? Under the rubric of negative test results, we need to be precise when defining which tests were valuable if only for ruling out a particular condition, and which actually were ordered for no reason other than to shut a difficult patient up or as a CYA exercise. In about a month, my wife will go in to get a quad-marker test done. I hope to God it is negative. But even with the possibility of both false negatives and positives, it is, to me, anything but an unnecessary test.

Posted by: Stephen | Mar 13, 2006 9:20:43 PM

Defensive medicine is driven by multiple factors, and I hope I haven't given the impression that I believe lawsuits are the only motivation. I can't tell you how many "therapeutic" x-rays I have ordered on a sprained ankle or sore back, ordered only because the patient wanted/expected an X-ray. So for sure, there is a patient-driven component. And yes, much of the diagnostic testing we order is because we (and patients) want to "know" what the problem is or rule out something bad. Whether that's good care or defensive is for the epistomologists to argue.

But lawsuit phobia is also a significant element -- a huge one. And doctors are not comforted by the knowledge that we are insured, not when our liability limits are usually $1 million per case and the awards are commonly in the multi-million range. Furthermore, when you are sued, it is a black mark on your employment record. It can cost $100,000 to successfully defend a case. You "win" a couple of cases like that, and you may just be out of a job. And if you lose, you have become much less employable. And then there is the fact that getting sued is just a traumatic experience. It's a really personal thing which has a terrible impact on you. You go into medicine to try to help people, and here you are being called negligent or incompetent by all these unfriendly people. Win or lose, a malpractice lawsuit is a terrible thing to go through, and doctors are highly motivated to stay out of court at all costs.

I am not trying to argue that malpractice is the cause of the health care crisis. Not by a long shot. But it's a problem -- the system sucks up too much money, awards too few actual victims of injury, and punishes too many doctors who did not make a mistake. Reforming the malpractice system ought to be a bipartisan issue. Alas, that does not seem to be the case.

Posted by: shadowfax | Mar 13, 2006 9:26:51 PM

By the way, I'm not ConservaBob. I am a liberal physician in a practice of 35 doctors, about 80% of whom are (were?) strong democrats. But seeing the things we are getting sued for, and seeing the 700% increase in our malpractice insurance has gotten us pretty motivated to change the liability climate. Don't belittle us by assuming we are republican trolls.

And I take issue also with the contention that "Most malpractice suits relate to care gone wrong -- an incorrectly amputated arm, say." This is demonstrably false. Most lawsuits are due to BAD OUTCOMES, which may or may not be due to bad care.

For example, we were recently notified of a suit. In 1995, a baby was dropped on his head. The mom brought him right in to the ER. The ER doc noted no signs of trauma and the kid looked OK neurologically. He had not (apparently) lost consciousness. So he watched him for a bit, and very quickly the kid started to go downhill. He was rushed to the CT scanner and found to have an epidural hematoma and from there went to neurosurgery. He now is disabled. Why the parents chose to wait 11 years to sue us is a mystery, but they allege that the 45-minute delay in obtaining the CT is the cause of the child's disability.

We are going to have a tough time defending this case -- it's a very sympathetic defendant. We feel like our doc actually did a good job, and it's pretty darn likely that this kid would have had a brain injury no matter how quickly we got the CT scan (the nearest trauma center being over an hour away). Win or lose, this will be big money loser for us. If we lose, it will be a multi-million dollar loss.

Posted by: shadowfax | Mar 13, 2006 9:41:41 PM

I don't think you're a conservabob, shadow, that's why I linked to you (I quite like your blog, actually). My problem with your comments is that there's no effective way to separate them out from other reasons to do those tests. The question isn't whether you're scared of lawsuits, it's whether that fear is motivating unnecessary medicine. You say yes. Quite a few doctors I know say the opposite. The studies I've seen (including the one you link to) look to me like the problem is relatively minor.

Does it exist and should there be malpractice reform? Sure, but not tort reform. The entire malpractice system should be changed, but to help patients and doctors, not cap damages, punish victims, and satisfy Republican constituencies.

Posted by: Ezra | Mar 13, 2006 10:26:25 PM


The reasons given for tort reform, however, are that our system is being crippled by malpractice cases and we have to do somethign about it ASAP. You even admit that's not the case -- the financial impacts are very small. Tort reform, in the way of caps on damages, will only make it more difficult for patients to get proper reimbursements for their injury. You also admit this. So why should tort reform be the answer?

I agree the system is broken and needs fixing. But limiting damages and making it more difficult to sue clearly benefit one side over the other.

Posted by: Kate | Mar 13, 2006 10:50:39 PM

One of the reasons that it is hard to sort out how much cost is due to defensive medicine is because it is hard to even define the meaning of defensive medicine. The Down's syndrome screening that Stephen mentioned is a reasonable and appropriate test even if it is negative most of the time. Saliva testing for "hormone balancing" or chiropractic "subluxation" testing is utter crap. A comprehensive metabolic panel for a perfectly healthy young woman is useless, but a CMP for a sick, barfing, diabetic in the ER is absolutely mandatory. Two of those tests are appropriate, two of the tests are for money making, but only one test is defensive medicine, IMHO.

The article that Kate linked to is an example of an attempt to quantify a phenomenon. The experiment failed to detect the phenomenon, therefore, in Kate's interpretation, the phenomenon doesn't exist. That, quite simply is bad reasoning on Kate's part. Defensive medicine exists as do global warming, the safety and efficacy of childhood vaccines, and the holocaust, no matter how many people claim they aren't there. Heck, while I was typing out my first post above, my most risk-averse colleague stopped by to talk about his malpractice phobia.

Posted by: J Bean | Mar 13, 2006 10:59:38 PM

Let me also say that I don't want to come across as attacking Shadowfax or any other physician.

I did notice, Shadowfax, that the problems you mentioned are really more about the insurance companies than lawsuits. Sure, lawsuits are bad, but the insurance company caps the liability. The insurance company raises your premiums year after year, even if their award payments go down. And is it not true that some of the pressure for more testing comes from malpractice insurance companies? There's some greedy lawyers out there, and some greedy/stupid people as well. But I've just described the actions of every malpractice insurance company in existence, and they are the ones being protected by the GOP. If your colleagues are defecting from the Democratic party over this, it's because they are buying into unsubstantiated propaganda, and frankly, I expect more from physicians.

Posted by: Stephen | Mar 13, 2006 11:39:22 PM

I haven't read through all the comments but what seems to be missing is a simple statement of the real business of insurance. That is, making money. A study was done by Richard Nixon's staff and more recently by the OMB on the costs of insurance - the premiums. It is driven primarily by the ups and downs of the bond market. The service of insurace provided is just a way to raise money for investment - not unlike banks offering interest on your savings to get your cash to invest for their own profits. When the bond market goes down the premiums must go up to cover the locked in profit margins. Sure docs are afraid of malpractice suits - just as we are all afraid of screwing in our professions and losing our credibility and employment. And they should be because there are some really bad docs out there.

I tend to think that one of the big factors in malpractice suits is the impersonalness of medical care these days. For example, women going to see obstreticans leading up to a birth often get a carousel of doctors thrown at them. Then, at the big moment, the birth, they may be attended by a doctor they've never even met. When a woman in the middle of birth feels uncertain of her surroundings the birth stops - this is true in all of nature as well. Then the doc orders up a caesarian... a procedure that is too often used - shall we borrow the word - frivoulously. When a person as a patient knows the doctor personally, has a relationship with them, they are much more forgiving of lapses in treatment. Yet when the doctors are arrogant and impersonal we are more likely to bring suit. I wonder sometimes, if the insurance companies weren't in the middle, if we would sue at all. If the idea of a group taking care of each other, amish-like, might disappear medical lawsuits altogether. The best insurance in the world is a congregation of friends who take care of each other. Insurance could be an enlargement of that - more true mutual companies rather than for profit companies. I wonder what would happen if we outlawed all but true mutual insurance - where the group covered owns the company and the only purpose of premiums is to cover claims - rather than to create an profitable investment pool with a major scrape going to the shareholders.

Posted by: Ed D | Mar 14, 2006 9:15:55 AM

where the group covered owns the company and the only purpose of premiums is to cover claims - rather than to create an profitable investment pool with a major scrape going to the shareholders.

E.g. A universal pool of government-provided insurance effectively owned by The People. Sorry, couldn't resist!

Posted by: Adrock | Mar 14, 2006 10:04:40 AM

Shadowfax, your paragraph on chest pain in that article Ezra linked to hit home for me. In August of last year, I admitted myself to the ER with a general description of "chest pain." (I had called my doctor that afternoon, but he couldn't see me and it got so bad, I started flipping out, so I went to the ER.) It started the Monday after a weekend of little sleep and a lot of partying. I had thrown up from too much booze on Friday night and partied at a wedding (with tons of foolish dancing) Saturday night. I let it go two weeks before I had that panic attack. The ER doctor ordered blood work and a chest x-ray immediately and observed me for 3 hours, the pain went down a bit during that time.

Here's where defensive medicine comes into the story. The ER doctor wanted me to do a stress test and something else, so they scheduled it the next day. I probably didn't need either of those but I played along. Fast forward a week later and I see my doctor and his answer was that I have nothing wrong me save for being fat. Frankly, while I appreciated the honesty, I didn't feel that was a proper reason for all of a sudden having bad chest pains, so I also asked him to order some upper GI tests, also proved negative.

In the end, I personally think both docs got it wrong. I think I had a bruised rib/chest muscles maybe combined with medium case of heartburn. I've lost 20lbs since then, but still have mild uncomfortableness in the same areas. I hear it takes a while for ribs to heal. I don't really know. But I do know that those upper GI tests and stress tests are expensive, one in which I asked for and one in which I didn't.

I know its just an anecdotal case. But it shows a case of DM and maybe a case of docs just not listening to their patient. Afterall, I came clean with what I did the weekend before the symptons shown. I barely go to the doctor, but this was something I've never felt before, was mildly debilitating (I couldn't work without thinking about it), and really freaked me out.

Posted by: Adrock | Mar 14, 2006 11:03:35 AM

I think your case, Adrock, actually shows the opposite. You had symptoms potentially indicating a cardiac event. The doctor did the tests that one would do for a cardiac event. They came back negative. But that doesn't mean they weren't necessarily in order to protect against your lawsuit, they were to protect against potential health consequences.

Posted by: Ezra | Mar 14, 2006 11:14:20 AM

A stess test performed on someone with negligible risk of heart disease is not indicated. In that situation, a positive test is more likely to be a false positive than a marker of heart diseaes. I'd have to know more details of Adrock's case than are worth going into here to be certain but if he is young and the ECG was normal, the test was probably wasteful. Whether the doctor ordered the test from legal fears or diagnostic uncertainty is impossible to say. Might be a combination of both.

Posted by: quietstorm | Mar 14, 2006 11:56:01 AM

quietstorm:Whether the doctor ordered the test from legal fears or diagnostic uncertainty is impossible to say. Might be a combination of both.

Which is exactly my point. In my example the CMP is in one case a vital test and in the other case ordered for defensive medicine or patient satisfaction or patient reassurance or sloppy, unthinking, one-size-fits-all medicine or some combination of all four. Kate and Ezra make the claim that this doesn't actually happen or if it does, it's negligible while those of us who work in the field feel that it's actually a pretty significant cost. Teasing out the difference between valid, albeit frequently normal, tests and defensive/sloppy/satisfying unnecessary tests is not easy and I don't believe that Kate has linked to a study that does a satisfactory job.

Posted by: J Bean | Mar 14, 2006 3:15:36 PM

Hey, thanks for the positive comments. With regard to the effect malpractice is having on the system, I think we are maybe talking at cross points here. Malpractice and defensive medicine are not responsible for the 45 Million uninsured americans or many of the other health care ills out there. Nobody (except perhaps incurious george) believes that and I am happy to agree with Ezra and Kate that the malpractice crisis is a small element in the gargantuan health care crisis. On a less-macro scale, it remains a problem. Take our practice. We lost a third of our physicians (11 of 31) in 2003-04. Five of them left the practice of medicine. During that time our malpractice premium quadrupled. Ed D is right that much of that is driven by macro-economic factors like the bond market and beyond our control, but I also believe that restoring rationality to the liability climate would help to control costs. But from the simple pragmatic position of trying to run a business and trying to staff an ER, it is a big problem.

Personally, I am not a huge fan of caps on non-economic damages. They (probably) would work, but they are troublesome on many levels and would require a big fight to enact (a fight we recently lost in Washington state). I would prefer a system of health courts where judgements on causality and standard of care are made by medical professionals and patient advocates. They have similar systems in some states, and they work well. In the super-politicized environment that exists, such a solution is but a happy fantasy. Oh well: I can dream.

Posted by: shadowfax | Mar 14, 2006 5:00:06 PM

Oh, Adrock,

Not knowing your age I can't comment in detail, but I will tell you that if you are over the age of, say, 35, the care you describe is pretty typical of any ER workup for chest pain. It can be pretty variable. If I saw you with a low risk profile for heart disease and what you describe as an atypical presentation for heart pain, I would likely observe you for five or six hours, get 2 EKGs and 2 blood tests and a Chest X-ray, then discharge you with a referral to your primary care doctor. The stress test was probably overkill if your risk profile is low, but that point is very debatable. Practices vary widely. At some places, like where I trained (Johns Hopkins), every single patient 35 or over who utters the words "chest pain" is automatically admitted to the hospital.

This can be pretty frustrating for the patient, who often has an idea of what is actually causing the pain. But I've seen too many patients with atypical stories rule in for heart disease -- with something common and bad like heart disease, you just can't play the odds. If I estimate your likelihood of it being the heart at <5%, that's one in twenty, and I'll see 20 chest pain patients in a week.

So it can be maddening, and sometimes "defensive," but that's one subject ER docs will agree on: the evaluation the atypical chest pain patient is the biggest challenge in emregency medicine.

Posted by: shadowfax | Mar 14, 2006 5:11:07 PM


Again, your comments point out how the problem is malpractice insurance companies, not malpractice. You agree that malpractice awards are not as large or common as we are led to think. But your premiums for the insurance quadrupled. The problem is not macro-economic factors like the bond market or even the performance of mid-cap Asian pizza technology companies. The problem is the complete lack of meaningful regulation for malpractice insurance companies, coupled with business plans that view investments as their primary focus with premiums serving only as backup cash infusions if the investments turn sour. You don't pay higher premiums due to doctors' mistakes or greedy trial lawyers, rather you are paying for the mistakes of some idiot in their investment division who apparently can't pick good stocks. And while you are losing your doctors, they are just hiring more idiots.

Posted by: Stephen | Mar 14, 2006 7:43:40 PM

And nobody in this thread has mentioned one of the problems of healthcare and that is the cost and physicians must bear some blame.

So, shadowfax, how much was line 31 on your 1040 this past year?

Posted by: Fred Jones | Mar 15, 2006 4:39:10 PM

This is so sick...
Afghan Man Faces Death for Allegedly Converting to Christianity

Posted by: marty | Mar 21, 2006 5:01:35 PM

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