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Defensive Medicine Makes Us All Sitting Ducks

Defensive Medicine Quackery


Defensive medicine makes us all sitting ducks

Defensive medicine makes us all sitting ducks

“Defensive medicine” is the term applied to medical tests and procedures ordered by many physicians in order to protect themselves in the event of a malpractice claim filed by or on behalf of their patients.  

These tests and procedures are often not necessary and can lead to further testing and invasive biopsies due to the often high rate of “false positives” – incorrect indications of disease that isn’t there – at further risk and expense to patients.  

Despite this increased risk, many patients still labor under the mistaken impression that defensive medicine is actually good for them because they’ve been conditioned to believe that more is always better.  

Hopefully, you realize – if you’ve read anything here before (or even caught this site’s title) – that exactly the opposite is true.  

Defensive medicine contributes to the overuse and misuse of expensive medical resources to the tune of an estimated $210 billion annually, or almost 10% of annual healthcare spending.  

This represents, according to this report, the single largest cause of unnecessary spending in medicine that’s estimated at up to half of what we spend on healthcare.

Put another way, roughly 10% of every dollar you spend on health care – probably much more as a percent of your out-of-pocket co-pay and deductible spending – is wasted on unnecessary measures designed to protect your doctors, not you.

And cost may be the least of it, as these unnecessary hospitalizations and treatments often cause injury and even premature death, as I discuss in Our Healthcare Sucks.

Giving Quackery a Bad Name

The extent of this practice varies widely and is especially pronounced in high-risk specialties, where much of the wasteful spending occurs in medicine.

A survey about defensive medicine among six such specialties in Pennsylvania – emergency medicine, general surgery, orthopedic surgery, neurosurgery, OB/GYN, and radiology – found:

  • 93% reported practicing defensive medicine;

  • 43% reported using imaging technology (e.g., MRI and CT scans) in clinically unnecessary circumstances; and

  • 42% reported avoiding patients with complex problems for fear of litigation.   

A broader survey about defensive medicine by the Massachusetts Medical Society found that 83% of respondents said they have:

“Practiced defensive medicine and that an average of 18 to 28% of tests, procedures, referrals, and consultations, and 13% of hospitalizations, were ordered to avoid lawsuits…the findings…roughly mirror the experience reported in other states.”

Given the patient endangerment associated with hospitalization, the fact that 1 in 8 hospital admissions may be unnecessary – and done only to protect your doctor from feared litigation – seems especially callous and negligent.

And it’s far more deadly than any “quackery” practiced by alternative medical providers.

“First, Cover Your Ass”

This means one of eight hospitalizations by these doctors put patients in harm’s way to protect themselves. This is an explicit violation of the AMA’s Code of Medical Ethics and an obvious violation of their Hippocratic Oath to “First, do no harm”.

There’s plenty of harm going on every day in American medicine solely to placate doctors’ exaggerated fears of malpractice lawsuits, which are at all-time lows.

And even malpractice reform in states like Texas has done little to curtail these abusive practices. There’s a reason for that…ordering unnecessary hospitalizations, tests, and procedures happens to be quite lucrative.

Defensive medicine is often but a smokescreen to justify the ordering of unnecessary medical interventions even when they jeopardize the health of patients.

If that isn’t quackery, what on earth is?

In fact, it’s well beyond quackery, which is usually reserved for fake nostrums that don’t benefit patients, but seldom harm them either. If nothing else, Our Healthcare Sucks firmly establishes that there’s nothing harmless about being hospitalized in America.

Does any of this sound like these doctors are meeting their fiduciary duty to their patients?

The short-term consequences of these fraudulent practices are obvious – more spending and out-of-pocket costs for patients that could easily be avoided.

More difficult to assess are the longer-term effects of unnecessary exposure to high-dose radiation from CT scans, for example, as well as the risks of invasive biopsies and other procedures generated by false positive results from these unnecessary tests and procedures.

Radiation exposure from CT is not a trivial concern, especially for infants and children – but also for adults. A report in The New England Journal of Medicine calculated the typical radiation dose for an adult abdominal CT scan at 1,000 times that of a conventional chest x-ray.

According to the authors:

“1.5 to 2%…of all cancers in the U.S. may be attributable to the radiation from CT studies…a problem arises when CT scans are requested in the practice of defensive medicine (emphasis added).”

This same report noted results of another study that surveyed radiologists (who read, or “interpret”, CT scans) and emergency room physicians that found that 75%…

“Significantly underestimated the radiation dose for a CT scan…(and) about one-third of all CT scans are not justified by medical need.”

Defensive Medicine’s Cynical Underpinnings

As Dr. Kevin Pho, a popular online blogger, states:

“Perpetuated by the media, the common mentality is that ‘more tests must mean better medicine’…

“In fact, data suggests more intensive medical care is associated with worse outcomes coupled with an increasing degree of medical errors and cost…

“We need to say no to unnecessary tests (emphasis added).”

Other physicians’ reactions to this blog posting provide anecdotal evidence of how some physicians view this costly and potentially dangerous subject:

  • “Or, just say yes and improve your income. Patient feels better. You (the physician) feel better. Your family likes the new boat better. Your defense attorney feels better. The insurance company does not care, they just pass the rates along to the patient. So, why the fuss?”

  • “I will get a mortgage payment out of it, or maybe a nice dinner out with my wife depending on the insurance company. So, great, go ahead and make my day!”;  and, from a more responsible respondent…

  • “Many of these screening tests are expensive (especially taking into account follow-up for false positives), they are unlikely to be abnormal, (and) it’s not clear what actions to take to change the actual clinical outcomes.”

Rooted in Error

Of course, there’s a lot of gray area in such decision-making and it can be difficult for patients themselves to navigate when and how to refuse such testing. The point for now, however, is that defensive medical practices play a major role in medical decision-making that contributes to the overall poor performance – financially and otherwise – of current medical practices.

This practice of defensive medicine, of course, is rooted in medical error. Yet, despite medical obsession with malpractice liability, error rates continue to worsen or remain flat, according to the federal agency charged with monitoring this (AHRQ).

The data suggest that medicine is more focused on circumventing medical liability by avoiding complex cases or overusing expensive tests than on avoiding medical errors that cause malpractice liability.

A study of malpractice claims by five malpractice insurers found 39% of claims settled between 1984 and 2004 by these insurers did not involve medical error or patient injury, while the remaining 61% did. This undercuts the “frivolous lawsuits” argument, as the majority of claims weren’t frivolous.

Further, this study found over 25% of cases with “culpable medical errors went uncompensated, suggesting the present system might be erring far more on the side of medical defendants (doctors) than is generally appreciated”.

In other words, patients are the victims here, not doctors.

Little Malpractice Relief in Sight

Unfortunately, there’s little relief in sight. Significant tort reform remains elusive as lobbying – in this case, by trial lawyers – continues to overrule common sense and the public interest.

It’s true that malpractice is no longer a crisis, but these things move in cycles. Most increases in malpractice premiums are due to losses in their insurance companies’ investment portfolios, not actual malpractice claims. The time to address the problem is before it enters another crisis mode.

Not that there aren’t obstacles, especially when the profession is only interested in capping patient damages rather than changing how it practices medicine.

“No-fault” malpractice reform for physicians adhering to clinical “best practices” – combined with mandatory reporting of medical errors and intensified patient education – would represent the kind of balanced approach to both malpractice and patient safety reform Obamacare should have included.

Instead, we’re left with tepid industry self-policing that’s failed to make a significant impact on either problem. The dominant trend among patient safety experts of focusing on the organizational, or systems, approach to addressing the patient safety problem – as opposed to individual human error – can only be effective to the extent there are viable organizations involved.

This excludes many physician office practices, where the lion’s share of medical decisions are generally made. Indeed, physician disorganization is largely to blame for the unacceptable rates of medical errors that drive medical malpractice claims.

Until this underlying fragmentation of medical care is corrected, medical errors and legitimate malpractice claims will likely continue to grow, especially with the huge increase in patient demand accompanying Obamacare.

The 800-Pound Gorilla in the Room

And the continuing refusal of medical leaders to confront the underlying causes of this problem by reducing medical errors – instead of lawyerly defensive maneuvering that does little of substance – will only exacerbate the problem, not resolve it.

In fact, the experience in Texas, which enacted malpractice reform in 2003, is revealing. The now famous article in The New Yorker article about excessive medical spending in McAllen, Texas – with one of the highest rates of medical spending in America – notes malpractice reform has done nothing to reduce unnecessary medical spending.

Unnecessary medical testing and procedures continue to drive the region’s outsized medical spending spree even though malpractice lawsuits have declined dramatically.

Doctors get used to practicing a certain way and are loath to change their ingrained behavior even when the initial impetus for that behavior is removed.

Plus, there’s a lot of money to be made by over-utilizing medical services.

Healthcare Without Harm?

Healthcare without harm is something we all have a right to expect, notwithstanding the inherently dangerous nature of disease and the often invasive measures employed in its treatment. Errors can never be eliminated entirely, but the industry’s inability to significantly reduce medical error rates suggests the inadequacy of current industry responses.

What are needed aren’t more cynical defensive practices, but aggressive offensive measures to tackle medical errors in hospitals and office-based practices.

One business report found that hospital investments in “claims management” (lawyers) grew at almost six times the rate of growth in actual payments to claimants – the majority of whom were, indeed, harmed by medical error.

This money would be better spent in reducing errors and improving patient safety generally.

As long as defensive medicine remains the driving force in how doctors practice medicine in America, then patients will remain defined by doctors as the enemy – as potential legal adversaries – rather than human beings in need of their professional care.

Doctors may choose to blame lawyers and a litigious culture, but their response to date has been overly defensive to the point of paranoia – particularly with malpractice claims now at record lows and with “zero growth” projected in malpractice claims by industry experts.

And it is poisoning the doctor-patient relationship they need for their livelihoods – a true “no win” situation.

Doctors and hospitals need to stop playing the victims of overzealous lawyers and start paying greater attention to the needs of the real victims in this sorry tale – their patients.

Doing so could prove their greatest revenge against all those trial lawyers they so love to hate.

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