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New Defensive Medicine Survey

“Every word that I write on every form is crafted with the idea that a malpractice attorney will challenge me to defend my practice.”

Just one of the quotes in the survey about defensive medicine published by Jackson Healthcare.

The survey of more than 3000 physicians showed that 92% admitted practicing defensive medicine and that, based on physician responses, the annual estimated cost of defensive medicine in the US each year is $650 billion to $850 billion – accounting for $1 out of every $4 spent on US health care.

You probably shouldn’t believe any of the statistics or quotes from physicians in the survey, though. Trial lawyers have a much better idea about why physicians order so many tests and why defensive medicine has no impact on the availability of health care in our system.

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  1. Oh, no! We HAVE to hand the lawyers a blank check! I mean, they’re the ones in Congress making the laws and makin’ laws takes lots of money and if we give the lawyers a blank check, they can send more money to the lawyers in Congress so they can make more laws!

    And our lives will be wonderful and we have all the laws we need and the lawyers will all have Porsches.

    • Only a fool thinks that a law degree means you have a similar political outlook related to tort reform. There are more physicians in Congress than there are attorneys who have represented Plaintiffs in a civil action.

      Although a law degree might make you more cognizant that without single payer, Congress cannot give or take away a “blank check” with regard to state law actions.

      I realize the Constitution isn’t much in vogue these days, but as far as I know it still hasn’t been repealed.

      • Eventually, as more doctors move to Texas and other states that offer some measure of protection to doctors, maybe more states will adopt some form of tort reform. At that point, market forces will have worked their magic.

        It’s a long process, but unreasonable to expect Congress to act proactively. Maybe, once Obamacare fully kicks in, Texas could go ahead and secede and set themselves up as the hospital ward for the North American continent.

      • Davey, we’ve had tort reform in some states for decades. How long do we need for “market forces” to work? Your post makes little sense.

        You want to see “market forces” at work? Look at the per capita distribution of physicians. The wealthier the community the more physicians. Regardless of any other factors. The market at work my friend.

  2. I had just read this post when I was called to see a patient in the ED that had an incidental finding on a CYA CT that was a nothing. I was called in for CYA, so the ED could document that it was noted and a specialist was consulted.

  3. Surveys are pretty weak info, but let’s assume they’re true. A survey of physicians would also indicate that if we had tort reform defensive medicine would decline.

    So how come when we enact tort reform the testing rate in those states doesn’t decline? Healthcare isn’t any cheaper?

    Reminds me of this article:


    “But since then, year after year, McAllen’s health costs have grown faster than any other market in the country, ultimately soaring by more than ten thousand dollars per person.

    “Maybe the service is better here,” the cardiologist suggested. People can be seen faster and get their tests more readily, he said.

    Others were skeptical. “I don’t think that explains the costs he’s talking about,” the general surgeon said.

    “It’s malpractice,” a family physician who had practiced here for thirty-three years said.

    “McAllen is legal hell,” the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

    That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down?

    “Practically to zero,” the cardiologist admitted.

    “Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

    The surgeon came to McAllen in the mid-nineties, and since then, he said, “the way to practice medicine has changed completely. Before, it was about how to do a good job. Now it is about ‘How much will you benefit?’ ”

    As long as physicians are paid for being conduits to services and products, rather than valued for their time and skill, “defensive medicine” (assuming you can define it), will exist, and costs will not decline.

    Another quote – remember, Texas got it’s much touted (by physicians, not the poor), tort “reform” in 2003:

    “The Medicare payment data provided the most detail. Between 2001 and 2005, critically ill Medicare patients received almost fifty per cent more specialist visits in McAllen than in El Paso, and were two-thirds more likely to see ten or more specialists in a six-month period. In 2005 and 2006, patients in McAllen received twenty per cent more abdominal ultrasounds, thirty per cent more bone-density studies, sixty per cent more stress tests with echocardiography, two hundred per cent more nerve-conduction studies to diagnose carpal-tunnel syndrome, and five hundred and fifty per cent more urine-flow studies to diagnose prostate troubles. They received one-fifth to two-thirds more gallbladder operations, knee replacements, breast biopsies, and bladder scopes. They also received two to three times as many pacemakers, implantable defibrillators, cardiac-bypass operations, carotid endarterectomies, and coronary-artery stents. And Medicare paid for five times as many home-nurse visits. The primary cause of McAllen’s extreme costs was, very simply, the across-the-board overuse of medicine.”

    • Tort reform does not take away the incentive for doctors to attempt to avoid lawsuits.
      Even with caps of $250,000 (which I have said before that I do not agree with), a physician still gets dragged through a multi-year long lawsuit and, if found liable, is place on the national practitioner databank which bumps malpractice insurance rates for 10 years and which may affect licensing and credentialing.
      You can misquote all of the Texas examples you want. As I’ve told you multiple times before, tort reform is one of many aspects that physicians consider when determining where to practice. When Texas made its environment more physician-friendly, it is no surprise that more physicians applied for licenses in the state.

      I don’t think we’ll ever know what fosters a culture of more defensive testing in one community than in another. I don’t recall Gawande’s article addressing that issue, either.

      • “(which I have said before that I do not agree with)”

        Then why are you always celebrating Texas? That’s the centerpiece of their reform. Hell, caps are the centerpiece of EVERY tort reform movement. If you don’t agree with them, why are you always pushing it?

        “You can misquote all of the Texas examples you want.”

        I misquoted nothing. You can read the article yourself – that’s why I linked it.

        “I don’t think we’ll ever know what fosters a culture of more defensive testing in one community than in another”

        So quit telling us it’s whether or not the state has caps. You’re speaking out of both sides of your mouth.

      • Matt: I oppose all tort reform. I am reserving rights for an aggregate lawsuit against the entire lawyer profession. It is history’s biggest criminal syndicate and needs to be deterred. While waiting for such a claim, all lawyers should be on a database. They should all be boycotted by all service and product providers. The lawyer is a rapacious, vicious predator, out to plunder all productive entities, especially if male.

        I would like to see the entire hierarchy of the profession, around 15,000 people, arrested, tried and executed for insurrection against the constitution. There would be no lawyer gotcha charges of collateral corruption. The sole evidence at these trials would be their own writings.

        Then real reform would be enacted in an Amendment, excluding the lawyer from all benches, all legislative seats, and all responsible policy executive positions.

  4. The validity of the survey is highly questionable when it’s clear the creators of it had clear bias. Hell, when you’re bold-facing the results that “prove your point”, then the survey is invalid IMO. And the definition of “defensive medicine” they used from Appendix B is complete BS. What do you think happens when the “definition provided to survey respondents” leads with “Defensive medicine is common in the US with rates as high as 93%”?

    C’mon WC you think you can spoon feed this crap to intelligent people and it’ll fly?

    • I am providing you and everyone else with another source of information in the “defensive medicine” debate.

      Some are of the opinion that defensive medicine doesn’t even exist. Some are of the opinion that defensive medicine exists, but amounts to only a small percentage of medical spending. Some believe that defensive medicine not only exists, but is a significant driver of costs in our health care system. I fall into the latter camp and if you read this blog regularly, you already know that. If you want to label me as biased about defensive medicine and its negative effects upon American health care, I’m guilty as charged.

      The next problem is defining a source for information. Suppose you were doing a master’s thesis on defensive medicine. Where would you look for your information? Would you go to those who have a vested interest in maintaining the status quo – lawyers or indirectly even hospitals? Would you go to those who govern the practice of medicine – administration and government? Would you go to those who are actually practicing and even *teaching* defensive medicine – doctors and medical schools? Where is the least biased source of information? Don’t forget that sometimes the lines between these different interests blurs. Ultimately, it is your choice about what information you believe is trustworthy or not. There is no definitive text on the subject.

      When I see a source of information on a topic that interests me, I present it. In this case, I presented information both pro and con in the argument. Before publishing the post, I went to http://www.justice.org, did a search for “defensive medicine,” and tried to pull a previous article that AAJ published which argued that defensive medicine doesn’t exist, but the article was no longer available. The only article that discussed numbers was available only to AAJ members, so that’s why I chose the newspaper article.

      I think that the most important information in this survey is contained in the quotes used in Appendix A and throughout the survey. If we look into the mindset of people who admit practicing defensive medicine, maybe we can a handle on how to fix the problem – if you believe that the problem exists. I could make the same arguments over and over again on this blog, but when those arguments come from thousands of other physicians in multiple other specialties, the concepts become more believable – in my view, anyway.

      You can choose to swallow whatever spoonful of pablum you wish. I’m giving you more information with which to make that choice.

      • WC, you are providing information, in the broadest sense of the word. But it’s not really useful information, merely other’s opinions. Like all polls, it has flaws. And given that these are conducted with a particular goal, it’s got some very large flaws.

        The hard data shows that even after the “reform” you want is enacted, costs don’t go down. All the surveys of what physicians MIGHT do is undercut by what they HAVE done.

        Defensive medicine may exist, and it may not. Given that physicians really can’t agree on what is or is not “defensive medicine” with regard to any particular procedures, discussing it is rather pointless.

      • You’re talking in circles again. Obfuscation at its finest.
        What “reform” is it that I want enacted? And where is the “hard data”? Enlighten me.
        I have consistently stated that the only way to make costs in medicine go down is to force patients to have “skin in the game.” Free market principles. Where’s the hard data on that?
        And if we ought not rely upon the opinions of the physicians engaged in defensive medicine, do also enlighten me as to what data sources we should use to determine the scope of this problem.

      • Ironic that you would use the word “obfuscation”, because the whole concept of defensive medicine is exactly that. Every physician: “Defensive medicine is rampant.” What about X test you did? “Completely necessary”.

        You have repeatedly stated your support for tort reform. The only tort reform that presently exists legislatively is damage caps (or health courts, which is damage caps dressed up).

        The hard data on the fact tort reform doesn’t affect costs. It was cited above. Look at the cost of healthcare in states both before and after tort “reform”. Or compare the cost of healthcare in states with it and without it. You’ll find no difference.

        You and I agree – all people need to have skin in the game in order to bring costs down. Where we disagree is that capping the damages of the poor will have an effect.

  5. just came back from an urgent care where the boyfriend lost a tussle with a trailer after he yanked on it. Was having pretty severe but random back pain in his left lower back…..no neurological, abdominal or urologcal symptoms. the doc said no need for exposure to uneccesarey radiation..left with a medrol pack, some relaxants and pain pills. Common sense said either a sprain or a tear…either way, some meds and some rest. No ct, mri crap.
    That’s the way it should be.

    • I agree that this is the way it should be.
      Now let’s suppose that by some freak occurrence, the doctor was wrong and your boyfriend wakes up paralyzed tomorrow from the waist down. Would he forgo a lawsuit because the doctor was practicing proper medicine?
      Wouldn’t a plaintiff attorney argue that his acute severe back pain warranted an immediate MRI?
      If we want to practice medicine “the way it should be,” we are going to have to accept that additional patients are going to be harmed through a delay in care or through a lack of exhaustive testing for every complaint.
      Until we come to accept that fact, defensive medicine will not go away.

      • “Wouldn’t a plaintiff attorney argue that his acute severe back pain warranted an immediate MRI?”

        Only if a physician had first testified to that being the case. An attorney cannot argue facts not in evidence.

      • Oh.
        And I’m sure that no plaintiff attorney would solicit such an opinion from a potential expert.
        By the way, a statement that acute severe back pain warrants an immediate MRI is an opinion that goes into evidence, not a fact.

      • Again, without the physician to testify to it, there is no argument.

    • update…no paralysis but is the only person I know who gets crabby on vicodan and hates them. :)

  6. I’m a little confused. Let’s assume the survey is correct. If most doctors practice defensive medicine and defensive medicine is supposed to prevent lawsuits then:

    Why are doctors concerned about lawsuits?
    Why are malpractice premiums so high?

    These surveys seem to actually undermine doctor credibility. Because it’s pretty clear that defensive medicine doesn’t work for its intended purpose. So why do doctors continue to do it?

    If something bad happens will the fact that you did everything right and ordered every test prevent a lawsuit? And while testing may hurt access to care, it helps parts of the medical profession. After all, lots of people are employed and make good money off of that testing and evaluation. If you eliminated lawsuits I doubt that defensive medicine would go away. It would be redefined as the standard of care.

    • Read the series I posted last year to answer your first question.
      No one wants to be dragged through 4.5 years (on average) of a malpractice lawsuit when there is little disincentive for ordering extra tests. Insurance premiums increase. You might not get credentialed at a hospital or might not get insured.

      Why are insurance premiums so high? They fluctuate based on insurance company reserves and predicted liability. Also, there are aren’t too many “nonprofit” insurance companies that I’m aware of.

      With a majority of lawsuits based on failure to diagnose, failure to timely diagnose, and failure to consult, what do you think physicians will do in order to avoid that liability? Order as much diagnostic testing as quickly as possible and engage in “consultorrhea.”

      Showing that every test was done may prevent a lawsuit and definitely helps in ones defense if a lawsuit is filed.

      Defensive medicine has taken many generations to develop. It will take many generations to go away … unless there is a “game changer” – which I think is coming.

  7. ” Also, there are aren’t too many “nonprofit” insurance companies that I’m aware of.”

    Aren’t all the physicians mutual companies nonprofit?

    “Showing that every test was done may prevent a lawsuit and definitely helps in ones defense if a lawsuit is filed.”

    This doesn’t make any sense in relation to other claims by physicians that there are more lawsuits than ever and more defensive medicine than ever. Which is it?

    ” It will take many generations to go away … unless there is a “game changer” – which I think is coming.”

    I agree. Single payer will do that.

  8. WC-
    You are so right about “skin in the game.” There are a lot of patients, I believe, who want the doc to be the boss, but have learned behaviors about medical professionals being “crooks” because of what they must pay to be insured.

    Instead of being involved in their own care, they are more concerned many times with making sure they are *getting* what they pay for even if it isn’t warranted, and it’s still not enough. Then, there you are, forced to be defensive in your practice as well.

    There is no trust between the doc and patient, so a step by step approach doesn’t fly. Just wait. If OC remains as it is, those who thought they had it bad will be begging to turn the clock back.

  9. I do not know a single MD who does not on occasion practise “defensive medicine” solely out of fear of a lawsuit. Whether this fear is misperceived or not, it is fear nonetheless and has impact.

    • That’s great. Let us know when we have some legislation that will address that and then it will be worth exploring more. What has been proposed to date has not had any effect. So for now, there’s not much point in discussing it.

      • My God you are a looney Matt. Lets just not discus something that affects us all. Good way of solving the problem is to just brush it under the rug and just say every idea to fix it is crap.
        Medical courts are a possible solution – although I know you will blabber on that every industry will want it’s own courts too but I say give it a try and see.
        Another one is do away with being paid “only if we win or get a settlement” – loser should have to pay something too – prorated to what they can afford.
        Finally, in the absence of getting medical courts, expert witnesses need to be officially certified by the governing system – ie the state or federal courts(and their credentials renewed regularly) – and should undergo vigorous screening and training to analyse cases. They should be practising at least part time in their field and should only be allowed to testify in their immediate scope of practise. They should be paid by the hour at a set rate – none of this career expert witness crap. Those who testify in “questionable ways” (ie grossly incorrect for the sake of saying what the lawyer wants them to say) should have their boards and or licenses suspended. I recently reviewed a case where the “expert” had not practised EM for 20 years, was never boarded, and works 20 hours a week as a PMD but makes 500,000 bucks a year testifying in 100-200 cases per year. The guy was a complete idiot and did not know modern emergency medicine from a hole in the ground.

      • Lunacy is discussing it in the context of the proposed tort reform after decades of that not affecting it in the least. I don’t think every idea to fix it is crap. I just think the only one that’s ever made it to a legislature – caps – doesn’t work. And decades of experience bear this out. I’m sorry you feel the evidence against your solution is crap, but those are the facts.

        Medical courts are a “possible solution”? They’re not proposed except to dress up caps, and you can’t get around the Constitution with them. And of course there’s no evidence they’ll actually save any money. Frankly, I don’t see how they could. Even putting aside whether physicians should be entitled to such special treatment. So tell me, if it’s such a great idea, how do you get around that?

        You want to do away with contingency fees? That’s fine. Tell me, how do the poor, or even middle class, get representation in time consuming, high cost litigation? Don’t you physicians pay your attorneys on a contingency fee when you sue the health insurers? And you’re our wealthiest profession! You seem to favor litigation by the wealthy for the wealthy.

        You want to regulate yourselves as expert witnesses, by all means, be my guest. It’s the only proposal so far that you’ve made which doesn’t hurt the poor or shift costs from insurers to taxpayers. You guys want to regulate your own, go for it. That’s a fine idea.

      • Also, it makes no sense to start your discussion based on a survey. 92% of doctors think they should be paid more, too, I’ll bet. And be more appreciated by their patients, etc. etc. BFD. It’s like having a national discussion on curfew times based on a survey of teenagers as to whether they should be later.

        “Defensive medicine” remains largely undefinable in anything but the most abstract. We can come up with a definition, but applying it to individual treatments and reaching agreement among physicians is largely impossible. I’m not saying it doesn’t exist, I’m just saying the hard data isn’t there to tell us the extent, or the drivers of it. Yes, I know what you claim the drivers are, but when we’ve given you the relief you claim to want to reduce it, it doesn’t go down. So clearly either you’re misinformed or you’re misinforming the public.

        Yet you want to skip all the hard work of identifying the problem clearly and start using “defensive medicine” to justify “solutions”. Solutions largely promulgated by liability carriers with their own ends in mind. Ends that have nothing to do with the public or healthcare delivery and savings, or for that matter – YOU, the physician.

        That’s why I find the defensive medicine discussion largely pointless at this juncture. And with single payer moving closer, it’s going to be moot before too long anyway.

        Your time and money would be better spent reforming the payment model than pushing for caps yet again and trying to limit what one side to a lawsuit can contract for with their lawyer.

  10. half the comments on this thread. big shocker there.

  11. Anyone who doesn’t think defensive medicine is pervasive can come hang out with me for a shift.

    Also, I think “retarded medicine” should be called out too…Ordering tests that just make no sense whatsoever. For instance, a urine drugs of abuse screen was ordered on an agitated, demented elderly lady w/ a history of the same who lives in a nursing home and has a history of multiple admits for agitation. Hi, I’m guessing the underlying cause of this is not her snorting rails off her roommate’s mirror tray or something.

    The other funny example is the doc who would ultrasound everyone’s legs who had leg pain and a (+) flu screen to rule out DVTs. Yo, guess what, everyone with influenza has leg pain. Another doc would do a U/S for DVT rule-out on people who had (-) d-dimers and chest pain.

    Hate retarded medicine.

    • I can off the top of my head think of a patient who had both a positive flu swab and a DVT. Maybe you can take the initiative and write a note on the chart stating the patient doesn’t need an ultrasound and you’ll take responsibility for missed DVT? If your answer is anything but “yes” the buck doesn’t stop with you and your opinion on the matter carries no weight.

      Also, do you happen to know which D-dimer assay your hospital uses? Different tests have different sensitivities/specificities and unless yours has a 100% sensitivity, someone could have a negative D-dimer and a DVT. Although I do take issue with your doc ordering a D-dimer without any intent to use the result to guide their further management.

      • Okay, everyone with flu and bodyaches that extent to the legs gets a LE doppler too. Sounds like a reasonable use of healthcare dollars.

  12. Your response confirms that you are working with the appropriate level of responsibility assigned to you.

  13. Matt: I oppose all tort reform. I am reserving rights for an aggregate lawsuit against the entire lawyer profession. It is history’s biggest criminal syndicate and needs to be deterred. While waiting for such a claim, all lawyers should be on a database. They should all be boycotted by all service and product providers. The lawyer is a rapacious, vicious predator, out to plunder all productive entities, especially if male.

    I would like to see the entire hierarchy of the profession, around 15,000 people, arrested, tried and executed for insurrection against the constitution. There would be no lawyer gotcha charges of collateral corruption. The sole evidence at these trials would be their own writings.

    Then real reform would be enacted in an Amendment, excluding the lawyer from all benches, all legislative seats, and all responsible policy executive positions.

    • Are you with the Bar Association? I’ve told you, I’m not paying my dues!!

      • I am one of the owners of the law. And you law technicians have criminally converted it. It is time the public took it back by self-help. Come the next major terror attack the payback against the lawyer traitor will be massive. There will be lawyer concentration camps and mass executions of internal traitor judges. Even the Supremacy will not be able to help.

        Matt should move on from this discussion. He knows nothing about it. The effect of defensive medicine is expensive. If you could get rid of the lawyer traitor, you could cut the health care by half, improve quality and outcomes, and give top of the line coverage to all the uninsured. You could actually reduce medical errors. These are maintained by the lawyer. Every medical mistake is the fault of the lawyer. It could have been prevented but for the cover up of prior similar error. The hospital has a duty to continue to exist. Lying, violence against lawyers and judges, and the shunning of plaintiffs by all health care providers, even to the death, has full moral and intellectual justification. I would support a direct action group formed by relatives of patients to violently suppress history’s biggest criminal syndicate, the American lawyer profession.

  14. It is difficult for me to understand why some commenters argue that physicians do not practice defensive medicine. Isn’t one purpose of these lawsuits to change physician practice? One can be sued for not ordering tests, but there is usually no penalty for ordering them (although some managed care groups track risk adjusted test ordering, and won’t continue to employ those who are high outliers, one isn’t an outlier if we all do it). The cost to a physician of defending a suit is huge even if one does not loose. One will lose their good experience discount due to the defense costs, insurance rates are thousands of dollars higher annually for years after successfully defending a suit. One will need to continue to pay overhead without the ability to generate income for a couple weeks or more for court and deposition time.
    Defensive practices are somewhat self perpetuating. If everyone has a low threshold for ordering a test when does it become the standard of care? Even if defensive medicine didn’t reduce the risk of a suit it is difficult for a physician not to react defensively to the numerous reports about suits that seem to us to be unjust. Suits depend upon competing experts making opposite claims and the lawyers, judges, and juries don’t know enough medicine to identify which expert is accurate and truthful. The plaintiff lawyers believe their experts, perhaps because they don’t know enough medicine to know better, and risk large amounts of their own money on these suits. When they lose they may believe physicians they accuse are crooks, that the physician is getting away with malpractice that caused a bad outcome. Sometimes I think wrongly accused physicians are the only ones who know the truth, and the patients and their lawyers are misled by experts that only the accused physicians seem to know are wrong. Somehow we need to find a way to protect patients from malpractice, to compensate them fairly when it occurs, but to also protect physicians from unjust accusations, and to provide incentive for safe effective science-based medicine that is in the best interest of our patients, without going broke paying for unneeded excesses.

    • I don’t think anyone here is arguing they don’t practice it. I think the point is that it’s nearly impossible to define, and you can rarely find agreement among physicians on what act or procedure is or is not defensive medicine.

      The other position is that it’s a pointless discussion simply because all the proposed “fixes” have been tried to no effect. Or they’re more expensive than the cure or simply unconstitutional.

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