Monday, December 16, 2013

Defensive medicine is more of a problem than you think

You may have missed this when it first appeared.

Experts from Harvard and the University of Southern California say assumptions made by some analysts that defensive medicine is not an important facet of the high cost of healthcare may be wrong.

Those assumptions were based on data showing that malpractice reforms instituted in some states did little to reduce healthcare spending. 

According to the report from the National Center for Policy Analysis about an article in the wall Street Journal, defensive medicine ("ordering some tests or consultations simply to avoid the appearance of malpractice") is just as common in states with low as it is in those with high malpractice risk. In fact, about 2/3 of doctors in both the low and high risk states admitted to practicing defensive medicine. 

My experience is that the 2/3 figure is probably a very low estimate. Just about every physician I know has  ordered a test or consult strictly to "cover his/her ass" if something were to go wrong. I am certain it happens tens of thousands of times per day in the US.

I can cite many examples of defensive medicine. Here are a few.

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.

A young girl comes in with lower abdominal pain, no GI symptoms, no fever. The pain improves over a couple of hours. Could she have appendicitis? Very doubtful, but yes, it is possible. Will she get a CT scan or an ultrasound? Yes. People who get sent home from EDs and return with appendicitis often have complications. Complications = lawsuit (delay in diagnosis).

A surgeon readmits a patient with a wound infection after a colon resection. The wound is opened widely and packed. The culture comes back "E. coli sensitive to every antibiotic." The surgeon knows that the treatment of a wound infection is drainage without antibiotics unless there are systemic signs of infection (fever, elevated WBC, tachycardia). "Just to be safe" he asks an infectious disease doctor to see the patient.

In my opinion, defensive medicine is ubiquitous and not going to go away soon. Healthcare costs will continue to rise. 

What can be done about it? If you believe the NCPA article, tort reform is not the answer. Then what is the answer?

I think reducing defensive medicine would take a massive culture shift that is unlikely to happen any time soon. Patients would have to be educated about expectations. 

For example despite what the so-called "never events" list says, some complications, like infections, are not 100% preventable.

And it would require a whole new generation of physicians with a different outlook, which would not be easy to accomplish either. Students and residents learn defensive medicine from their role models.


gretchen kromer's blog said...

Getting patients more actively involved in their own health care might help too. Many patients assume a passive role in relation to doctors. If something goes wrong, it's the doctor's fault.

Skeptical Scalpel said...

Gretchen, that is an interesting point. Are you aware of any study suggesting that patients who are more involved with their care are more tolerant of complications or are less likely to sue? I'm not, but I would be happy to see such a study.

gretchen kromer's blog said...

Not quite the same thing but there are studies showing that more involved patients tend to have better health outcomes, This in itself might reduce the number of lawsuits

Skeptical Scalpel said...

Thanks for the link. More engaged patients might cut down on lawsuits, but if you believe the paper I cited in the post, that won't have any effect on the amount of defensive medicine being practiced.

bigjimricotta said...

I agree that it is more than 2/3 that practice defensive medicine. I think it is more like 9 out of 10 that knowingly practice defensive medicine. The other one in ten is either to pompous to admit it or does not know they are doing it. I practiced defensive medicine myself. The examples you gave on CT for abdominal pain or pulmonary embolism are spot on. Everyone who comes to the ER with abdominal pain gets a CT scan, and the patients usually expect it because they saw it on TV, read about it , or cousin Eddie the plumber said they need it. And every doctor has heard of that one unusual case where someone got burned for not getting a CT scan. The lawyers will then get an expert who will say it would have been obvious on the CT scan had it been done. I think the real problem with medical malpractice is that we have lay people as jurors. While I mean no disrespect to a lay person looking at a medical malpractice case, I do not feel I would be a good juror trying to figure out litigation regarding nuclear physics or some architectural design problem. You could take a normal EKG and have one expert say it is normal and another saying it is an acute MI--would a lay person know the difference. Same for a CT scan--one expert says it is obvious acute appendicitis, while the other could say it is normal. The juror is going to believe the expert who makes a better impression. And I agree that the money that is spent on defensive medicine is much higher than what is stated in the press. It is a cultural problem in this country--something goes wrong--first thing people say is "you should sue"

Skeptical Scalpel said...

You are absolutely right about the court system. The jury is not made up of our peers. It about whose lawyer is more clever and how persuasive and likeable the experts are. Forget about the science or the facts. Good luck convincing anyone it needs to be changed. The lawyers for both sides have not reason to want the system to change.

gretchen kromer's blog said...

For patients who sue, poor communication is often a major contributing factor, according to

Is part of the problem that doctors simply don't have enough time to discuss complicated issues with patients?

The TV program "Need to Know" had an episode on the US malpractice situation. It included discussion of the system in Denmark, where malpractice lawsuits don't exist.

Skeptical Scalpel said...

Gretchen, thanks for the links. The "Need to Know" program was particularly interesting and quite relevant to the post.

bigjimricotta said...

I think Gretchen as a good point. Having good communication with the family certainly helps. If there is a complication, and you show a lot of concern, the family may not sue you. But that is not foolproof. Over twenty years ago, I had a patient who died of a pulmonary embolism after varicose vein surgery. He got SQ heparin and it turned out had HIT-heparin induced antibodies. He was one of my favorite patients, as I had taken care of him a number of times prior to the vein surgery. He worked a a local designer clothing store and would bring me ties at Christmas times. I went to and cried at his wake and was really upset that he died. About 6 months later, a request for records from a local high powered law firm came to my office. Nothing ever happened after that as I have been told years later that they had the case reviewed by an honest expert and there was no malpractice. It may have been some friend of the family or who knows that suggested that they try to see if they had a case to sue me. I still think of this patient over 20 years later around holidays, I still have some of his ties in my closet.

Skeptical Scalpel said...

Bigjim, thanks for the story. It illustrates your point very clearly.

Anonymous said...

Several studies have showed that coagulation tests are costly, unnecessary, and even when abnormal, due to excess testing, are probably lab error (statistics). Still, they continue to be ordered.
This is my first year of practice, I haven't ordered one single time them, and hadn't had any trouble. Eventually, 1/1,000,000, a patient that could have had a coagulation disorder identified will bleed excessively during my surgery. Yet, I won't start to order, because I think one isolated event should not dictate changes. If some level A trials show that it's not worthy, why base decision on level H - "remember that case?"
Another surgeon in my city use a penrose drain in all cholecystectomies, open or laparoscopic, because he recalls one case that the drain prevented choleperitoneum - the patient had a pancreatic cancer, which was diagnosed subsequently.
We have to accept that we can't predict which patient will have complications, and some of them will have bad results. Patients should acknowledge that in health care, as in any other aspect of life, things can go wrong.
Surely this way of thinking can lead to suing, but there is no sue-proof way to do medicine. I refuse to practice medicine guided by the fear of a lawsuit instead of the best scientific evidence available.
There is a very interesting chapter on the statistics in leonard mlodinov's the drunkard's walk.
Also interesting is a table defining evidence levels in Schein's Commom Sense Emergency Abdominal Surgery - the whole book is worth reading.
By the way, why do these rare cases, when they happen, they do very close to each other?


Skeptical Scalpel said...

Excellent comments. I agree 100% with the coag study comment. Unless there is something in the history to suggest a bleeding problem, there is no indication for ordering coag studies preoperatively.

A drain after every cholecystectomy? That is absurd. In most cases, Penrose drain will not keep up with the bile or blood anyway. Risk of infection, too.

I have Schein's book. I agree it's a very well-written source.

I wish I knew why the rare events happen the way they do.

Anonymous said...

The author obviously has drunk the Koolaide dispensed by the insurance industry. Please keep in mind that the plural of anecdote isn't data.

Skeptical Scalpel said...

I don't understand your comment. Are you saying the National Center for Policy Analysis report is anecdotal? Did you read the link? I was simply adding my own opinion, which is the point of blogging.

And what does the insurance industry have to do with this? The report is saying that tort reform does not lead to decreased testing and costs. How does the insurance industry (malpractice or health) benefit from this information?

Brian said...

My wife, about 60 years old, went to the ER with extreme sharp abdominal pain. Ultrasound of the abdomen was negative, oxymorphone reduced the pain, and a CT was ordered. Enlarged lymph nodes along her aorta were observed, consistent with a return of lymphoma. Her annual scans had been clean for 14 years including one 6 months before this event. Was the CT scan defensive or appropriate?

The Mule said...

Tort reform focused on medical malpractice was passed in Texas in 2003. The article in an insurance industry publication looking back on the last ten years might prove interesting to all of you.

Michael Jones said...

In my opinion, a large part of this problem is due to physicians being worried about lawsuits. As they should be, especially around our country's metro areas.

Also, hospitals and the corporations that run many of them, profit greatly from defensive medicine. I would be willing to wager a beer that the amount of profit generated by defensive medicine far outweighs the potential costs of paying the lawsuits that would result without it. It's a convenient situation for the share holders in these companies. I could be wrong about that, but I'd be surprised if it's been studied because who would have an interest in analyzing that?

Skeptical Scalpel said...

Brian, I can't answer your question. It does illustrate the superiority of CT scan over ultrasound at least in your wife's case. The question really is, did the finding of the lymphoma recurrence 6 months sooner than it would have been found by annual scanning make any difference in her outcome? If you think it did, then maybe she should have been getting follow-up scans every 6 months instead of yearly.

Mule, thanks for the link to the story about tort reform in Texas. It is worth reading.

Michael, you raise a good point about who profits from defensive medicine. tests ordered defensively are profitable for hospitals. Unnecessary consults would be profitable for the doctors being consulted. I agree it would be an interesting research project but difficult to study. Who is going to admit that they order tests and consults for defensive purposes?

Sue said...

I think if medicine were not for profit, it would help too. I used to work for a not for profit health care agency. We didn't do things 'routinely' that would waste money.

Skeptical Scalpel said...

Sue, you have a point. But it is well-known that most doctors don't know how much anything costs nor do they care. That's a big problem.

Sue said...

That's very sad. Maybe something can be done about that..

Anonymous said...

I think with the very high deductibles that are becoming more present(as high as 12K in some plans), patients will start to become aware of the costs of tests. As long as insurance was paying, no one really cared. I am afraid that with the very high deductibles, the pendulum may swing too far the other way and we will not order a test on someone who really needed it. My stress echo/nuclear cardiac exam was billed 16K by my hospital to my insurance company---seems quite high for a 3 hour test. Interesting report tonight on Greta Van Susteran on Fox about hospitals paying insurance premiums for low income patients-----( does anyone think the hospital is doing it out of the kindess of their heart??) Would be interesting to see how many of those patients then come in for MRI's, and megaworkups.Sorry,this may be off topic a little but was watching Greta while writing this.

DD said...

Our society can be overly litigious, but I am not sure "defensive medicine" is just fear of lawsuits.Few providers practicing today would make a definitive diagnosis and treat a patient without the benefit of a single supporting lab or other diagnostic test. As I have learned from actual practice and from watching re-runs of House, diagnosing an illness is not an exact science!

I would not want to be the one who missed the atypical PE, or sent a young person home with appendicitis (this happened to my brother at ten years old--after several days of illness, my parents took him to the community hospital ED where a general surgeon quickly made the correct diagnosis and saved my brother ) As for the ID consult--let the specialist convince the patient that taking IV antibiotics, when it is not indicated, can cause more harm than good.
But our country does face an over-utilization problem that causes cost to go up. So is over-use the result of greed or just fear of lawsuits. I site a great article by Dr Atul Gawande (New Yorker 2009) called "the Cost Conundrum" available at Dr. Gawande raises some excellent points; one that is compelling shows that high healthcare cost does not necessarily = better outcomes.

Anonymous said...

Speaking for me, I'm more involved in my care. I can pretty much tell when someone has an attitude, and that I think is the major issue in suing. I'm not looking to sue due to gag clauses. I'm going to tell as many others about the care I received, and drive $$$ away from them. Get others to say, is this the type of care you want?

As for medicine, I've gone through five figures of stuff, all because we didn't completely, fasting test, the very same items I said I was at risk for, and are proven complications of my surgical/medical history. Guess what? A couple of items were low (one didn't register it was so low) and another handful are low normal, another couple are high. Put it all together and you can figure out the picture. The docs haven't (well not all of them) but a couple have. Wow!! An involved patient actually could have prevented thousands of dollars being used, and I had peer reviewed medical literature that agreed with my recommendations. Sorry gang, simple case of docs not knowing how to read bloodwork and correlate it with symptoms.

I have tried to speak to docs recently about costs. I say I pay for legitimate care but I can't afford the other stuff. So oddly enough, I am the one who is attempting to drive that but I have doctors that just don't want to do it. Makes you believe in blacklisting or just plain 'can't read a medical paper'.

Skeptical Scalpel said...

I agree that the high deductibles will get the attention of people after the shock wears off and someone explains to them what "deductible" means.

DD, it appears that over utilization is more than just a fear of being sued if you believe the link I cited. There's also demand from patients. Everyone who twists a knee wants an MRI. That may change with the higher deductibles too.

Last anon, it's good you're involved in your care. My experience is that too few are.

Anonymous said...

While I am sure there are cases of over use, there are still cases of massive lack of medical understanding. I have had high calcium and high PTH levels for over 5 years. During that time I have had scan after scan looking for a bad parathyroid nodule. Through my own research, I recently discovered the problem and had my bad parathyroid removed at the Norman Parathyroid Center in Florida (I live in Georgia).

It seems that none of the doctors (3 MD;s and 2 Surgeons) I saw in Atlanta knew that the scans would not show the problem if the parathyroids are in the right place behind they thyroid gland. Thus the lack of knowledge from multiple doctors resulted in pain and suffering for over 5 years. Will I sue? No. Why? I know that medical science is not perfect and I am sure that my doctors did all they knew how to do.

I was once told by a lawyer that happy people do not sue. I wonder what would happen if the medical profession focused on making patients happy like my doctors did/do instead of being in an arrogant rush to see more patients. I suspect most of the defensive medicine would disappear.

I also agree that more patients need to understand they are in charge of their health not the doctor. In earlier times this was a hard position to take because the doctor had all the knowledge in the doctor-patient relationship. With advent of the Internet that is no longer necessarily the case. The doctor has to know about many patients, the patient only has to study one. Hopefully the next generation of patients will be better than the previous ones and improve the situation for all.

Skeptical Scalpel said...

AP, thank you for commenting. Parathyroid disease can be tricky. It is well-known that making patients happy reduces the likelihood that they will sue. I wish more people would take charge of their health, including eating properly and exercising.

Anonymous said...

I have a question, what if a provider saw one of your diagnosis on a scan but doesn't tell you and then 3 years later you get another scan. Then all of the sudden another provider said that they did comparisons of this scan from 3 years ago, and nobody tells you about this diagnosis that they saw on the scan 3 years ago and you have limited options and it is making you sick.

Skeptical Scalpel said...

Anon, if what you say is true, you should have been told about the findings on the the test from 3 years ago. Without more details, that's all I can say.

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