A lawyer tries (unsuccessfully) to take down Skeptical Scalpel

A trial lawyer named Max Kennerly has taken issue with a piece I wrote called "Can defensive medicine ever be stopped?" It appeared last week on KevinMD.

On his blog, he he says defensive medicine is a "myth" and accuses me of many wrongs, too numerous to detail here.

I will address a few of them.

He read my post but apparently did so selectively. He failed to note that I agreed with him that tort reform did not reduce the cost of medical care in states that have enacted it. This was documented by a paper from the National Center for Policy Analysis which I cited.

He went on to criticize three brief examples of defensive medicine that I mentioned in my post—about abdominal pain, a wound infection after colon surgery, and chest pain.

Mr. Kennerly writes, "a young girl with lower abdominal pain gets an ultrasound for appendicitis (among the least invasive, least expensive, and most helpful tests in history — remember this funny GE ad for their portable ultrasound?)."

He says he is "a trial lawyer for injured people," but his knowledge of medicine seems rudimentary at best. Apparently he advocates obtaining a portable ultrasound on every patient with abdominal pain who presents to an emergency room. With 7 million visits per year, abdominal pain is the most common complaint presenting in emergency departments in the US.

A conservative estimate of the average cost of an abdominal ultrasound in a hospital is $400. If every patient received one, it would amount to a cost of $2.8 billion dollars per year. That may not seem like much to a trial lawyer, but it is to me.

In addition, ultrasound is not accurate enough to rule out appendicitis as this CME article from the American College of Emergency Physicians points out. Here's a quote: " "Unfortunately, its [ultrasound's] poor sensitivity in comparison to CT does not allow it to be utilized as a good 'rule out' test, necessitating additional testing if the ultrasound result is not positive for appendicitis."

Oh, and lots of luck defending yourself against the likes of Mr. Kennerly if you misdiagnose appendicitis with the GE portable ultrasound machine he posted a link to. What, no radiologist read the study? And you used a portable machine instead of the gold standard $40,000 state-of-the-art machine in the radiology department?

Another of his criticisms of my examples reads as follows: "a surgeon calls up an infectious disease colleague to confirm he or she can drain an E. Coli-infected post-operative wound by draining it, without antibiotics."

As I stated in my post, my point is that surgeons have far more experience in treating wound infections than infectious disease specialists. For a simple wound infection, a consultation with an ID doctor is completely unnecessary, yet many surgeons do it for defensive reasons. Mr. Kennerly thinks that is just fine. He proposed that the surgeon should get "a quick informal consultation from an expert." He should know better. Informal consultations are very risky and should never be done. If the ID consultant didn't see the patient and the outcome was not perfect, you can bet Mr. Kennerly would happily file a suit against him.

In his best lawyerly fashion, he twisted my third example to meet his needs. Here's what I wrote: "A young man with chest pain arrives in the ED. After taking a history and examining the patient, the ED MD is 99.99% certain that the patient did not have a heart attack or a pulmonary embolism. But he’s a little short of breath. He remembers a case of a fatal PE with only minimal shortness of breath, orders a blood gas and CT angiogram of the chest." Note that I said CT angiogram, a test which costs well over $1000.

Here's what Mr. Kennerly wrote: "Is it such a terrible burden on the health care system to run an electrocardiogram and normal blood labs on a person with substantial enough chest pain and shortness of breath that they brought themselves [sic] to an ER? The cost of each is trivial, and the risks are non-existent. Dr. Scalpel is advocating for the equivalent of a mechanic saying, 'I don’t need to look' when your brake light comes on because the mechanic is 'pretty sure' it’s just the sensor." Note that he said EKG and lab tests, neither of which I mentioned.

So Mr. Kennerly, while saying that defensive medicine is a myth, suggests that doctors should never rely on their clinical judgment but rather order numerous expensive tests instead.

This is a good example of what we are up against in medicine today, and furthermore, it shows why costly and wasteful defensive medicine will persist for the foreseeable future.