Defensive Medicine #3


If we equate ordering too many tests with “defensive medicine,” here’s another reason that physicians practice defensive medicine: patient perceptions

Some patients have significant misperceptions about the way medicine is, or should be, practiced. Even if these patients have no basis for their misperceptions, all they need to do is complain about an emergency physician and the doctor will hear about it. There is a constant dynamic tension in the ED: administrators and hospital boards want patients to be happy, but physicians know that patient happiness doesn’t always flow from proper medical care.

Evidence-based medicine often gets thrown out the window in the face of patient satisfaction surveys. The Ottawa Ankle Rules may have a 100% specificity for detecting fractures, but if a patient didn’t get a dose of therapeutic radiation for their sore ankle and writes a letter to administration stating that they went to another hospital and actually got their ankle x-rays done, woe to the ED physician who didn’t order x-rays at the first hospital. Especially in competitive markets, any physician who doesn’t keep patients happy isn’t going to be around very long.

Hit in the head with a whiffle bat and not a scratch on the patient’s noggin? If the patient wants a CT to “make sure” there’s nothing wrong, even despite your lengthy description of the likelihood of no injury, you’re faced with ordering a test or getting another black mark in the “rude, uncaring physician” column.

If you’re a hospital physician, you have the choice of ordering other tests and keeping the patient or family happy versus having someone from Utilization Management leaving you nastygrams in your mailbox and voice mail messages at your office about why you are ordering so many tests.

If you’re in business for yourself in a private office, you’re faced with ordering a test or losing a patient to another physician who will order the test just to keep the patients happy.

In each scenario, ordering excessive tests sometimes becomes a “Hobson’s Choice“: make patients happy or have less patients. Defensive medicine becomes a “defense” of your livelihood.

Medical practice managers have the right idea with patient satisfaction, but are implementing it in the wrong way. “Have it your way” may be OK for hamburgers, but it isn’t always OK for medical practice. In medicine, the customer is not always right. Giving people the allusion that patients are always right just throws fuel on the fire. Just yesterday a parent left angry from the ED because I didn’t do blood tests on her healthy 7 week old daughter to make sure she didn’t have “that superbug infection.” I tried to explain it to the mom and she just tuned me out because I wasn’t going to give her what the kid’s grandmother thought she needed.

How do we get past this type of “defensive medicine”?
Doctors need to learn how to better communicate with patients. But some patients need to accept that doctors have more experience with medical issues than the media, the patients, or the patients’ Aunt Millie and her anecdotal stories. We have to develop trust. Unfortunately, with companies switching health plans, specialist offices on every street corner, families moving from one town to another, doctors moving from one job to another, and families losing insurance, many times the doctors and patients aren’t together long enough to cultivate that trust.

I actually had a defensive medicine #4 post planned, but these posts seem to rile up so many people that this one is going to be it.

So if we want to make a dent in the practice of “defensive medicine” and reign in healthcare costs, this whole communication/expectation/trust thing is where I think we need to start.


  1. If a patient wants a test, and is willing to pay for it, how is that “defensive medicine”? In every other area of commerce, the provider is happy to sell more to the consumer. And isn’t that what many physicians are clamoring for – more free market?

  2. I understand when a physician doesn’t want to order unnecessary tests, but the idea of “guessing” and being all wrong isn’t too much fun either. At least for the patient.

    I had a doc that continued to put me on more meds as things got worse. “Let’s just see,” she said without really doing any diagnostics. Finally I was tired of it all and went to someone new. Of course I hate needles and tests, but it wasn’t long before the new doc had things narrowed down and I was off most of the meds.

    What bothers me most are the little things. Like cutting off a bandage to look at a wound without taping it back up again and leaving me with it bleeding all over until a nurse comes in. Yuck.

    Or not checking the list of medications they have already put me on to make sure none of the new stuff will cause a reaction. It’s happened more than once and the doc finally got the picture after he was called on-call a few times and I ended up in the hospital.

    I’m not slamming docs. I’m dating one actually. I give them kudos for everything they have to go through.

    I think it’s those few people like the crazy superbug infection mom that make a mess of things.

  3. Matt,
    Your posts are exhibiting troll-like characteristics.
    How many patients do you know of that whip out their platinum Visa card and plunk down several thousand dollars for a “superbug” workup? I forgot, you’re a lawyer. You wouldn’t have the basis to answer that question. For the record, we’re not talking about business law and multibillion dollar corporations. We’re talking about plain old everyday Americans. Many don’t earn as much as attorneys.
    Unlike attorneys, emergency physicians can’t refuse patients because they can’t pay us. Federal law requires that we evaluate every patient that comes to us seeking medical care, and that we treat every patient with an emergency medical condition even if we never get one penny for it. Even if I don’t get paid for seeing patients, I’m proud of being an emergency physician and being able to make a difference in people’s lives. We are the “safety net” that tries to provide some semblance of health care to those who can’t afford it. Maybe we don’t do the best job of it all the time, but there are a lot of dedicated docs out there doing their best.
    Even outside the emergency department, most patients don’t directly pay for their testing, either. If they are fortunate enough to have insurance, the insurance company pays for the testing. If they don’t have insurance, sometimes the testing doesn’t get done unless the patients come in with cash in-hand. Sometimes the testing gets done and then the patients get sticker shock when the get the bill. Then we hear about how soaring medical costs sent another person into bankruptcy.
    Free market? Too many outside forces working against that happening.

  4. I’m sorry you feel that way. But even if their insurer pays for it, is it defensive medicine if they requested it? You didn’t answer the question. I didn’t realize you were restricting it just to ER docs in discussing this issue, who obviously have different issues with respect to being able to charge people.

    You can insult me if you want, but the fact is I represent those same people that come see you, and I know far more about their financial condition than you, I’m sure. I even represent doctors with their business issues. I work in a town of 3000 people, no multibillion dollar corporations unfortunately. I bet you make more than me, in fact. Given that physicians make on average 50% more than attorneys, there is probably a very good chance of that, so spare me the “rich attorneys” line.

    But back to the point, I’m still struggling to see what the point of all this defensive medicine discussion is? What are you hoping to achieve with trying to identify or shed light on this issue? I thought you wanted a free market, but evidently I was wrong. That seems to be what most docs want.

  5. Matt, you answer questions just like a lawyer! After reading your posts I visualize a rooster with his feathers all ruffled up…
    The point of all of this defensive medicine posting is just that…defensive medicine. When supposedly intelligent humans won’t take the advice of a medical professional and will only be sated with tests..”because granny said so..” then they have just set up an “us or them” type of scenario. The MD has seen similar cases and understands the mechanism of the disease process. Yet here we have somebody that hasn’t had a drip of medical training demanding/insisting on tests. And won’t take the advice of the person that they came to for ..advice.
    Matt put yourself in the MD’s place. If I came to you to do estate planning and then demanded a 100% gaurantee that what you advise will make me a rich retiree..wouldn’t that be expecting too much? Wouldn’t outside factors have a bearing on my/your investments for my retirement?
    The same for the MD; how does the MD know if the patient is really telling the truth about his condition.
    Oh hell, I’m gonna quit…now you got me all lathered up and I still have 2 hours left to care for patients. See ya!

  6. Matt–

    You need to read up on biostatistics: people shouldn’t get a “blood test for a superbug infection” if the odds that they have the superbug infection are too low–it ends up putting them at risk for false positives, which creates unnecessary follow-up testing, stress, and wastes the already over-burdened health care system.

    It’s the same reason full-body CT scans for “screening” are worthless. To get technical, if your pre-test probability approaches 0%, even a test with 99% specificity only increases your probability of true disease a small amount.

    Most non-medical folks do not understand this–I certainly didn’t until I learned about it.

  7. “Matt put yourself in the MD’s place. If I came to you to do estate planning and then demanded a 100% gaurantee that what you advise will make me a rich retiree..wouldn’t that be expecting too much? Wouldn’t outside factors have a bearing on my/your investments for my retirement?”

    That’s a little different than what I’m saying. If you came to me with a house and a couple cars and $50,000 in retirement accounts and insisted upon having a complex trust set up, I’d first counsel you against it, telling you the expense wasn’t necessary. If you still insisted on it, I’d give it to you after clearly explaining why you didn’t need it.

    Likewise with the full body CT. If I want it, and you tell me it’s worthless, and I still want it, so what? If I or my insurer are willing to pay for it, what’s wrong with that? I’m not saying your opinion isn’t valuable – it is. But if granny said that’s what works and they insist on it – what’s the problem?

    My larger point though is what does discussing defensive medicine, which is a difficult thing to define anyway, lead us to? If we all agreed on what it was, what actions would we take from there?

  8. Personally, I would just like honesty. Tell me what is available to help make a diagnosis, and then tell me what your experience and education tell you about how I am presenting, and the tests or procedures we are talking about, and then let me decide.

    If you tell me that you “could” order a ct scan but that the likelihood of it showing anything significant is really small, then I am not going to have a ct scan. On the other hand, if you tell me I need that CT scan, then lets get it over with. I come to you for your experience and some where we patients and physicians) have lost sight of that.

  9. Cathy,

    I think we all wish medicine worked like that. Here’s what would happen in that scenario:

    -You opt for the CT scan. It may or may not find a very rare condition, but probably won’t, because that’s why it’s rare. Your insurance pays for it, contributing to escalating costs. Premiums go up over time (because that’s what they always do.) Your lifetime risk of cancer increases, as a few recent excellent studies have shown. CT scans specifically increase cancer risk in young females, but they do so in everyone because it’s a dose of radiation.

    -You listen to the evidence and make the call not to have the CT scan. Several months later you find you have metastatic cancer/an AV malformation/something moderately harmful but not fatal. The doctor and you were both practicing evidence-based medicine. But there’s a huge chance that you (the patient, not you in specific) will decide to sue the physician for malpractice. Premiums go up even more.

    The problem is that even if the physician truly believes the evidence does not call for a dose of radiation, and you choose to make that call, he in no way is protected from liability. I would practice medicine like that in a heartbeat if there was some protection granted to physicians who explained the risks clearly and the patient opted out of the exam.

    Thus, you’re getting that CT whether or not you want it or not, because it’s the only way the physician can protect himself from a jackpot award. Until liability is reasonably shared, patients will only be indulged in more tests, not less. And costs, as always, go up.

  10. What case are you referring to where the patient, after being fully informed about the risks and benefits of a CT, declined it and subsequently was sued and his insurer paid a “jackpot award”?

  11. Matt,

    My example was exactly that: not an anecdote, an example. It is based on the unfortunate premise that that it is nearly impossible to get a patient to sign away their right to sue for malpractice, as the law apparently assumes that a patient can never full give informed consent.

    This was related to me by two lawyers who work in health-related law. I didn’t train in law as you obviously did. Lexis-Nexis confuses me about as much as turning on a computer does my dearly loved mother, so I’m relying on their word and can’t cite precedent.

    Since you’re a lawyer, what do you know about this? I am annoyed I can’t find the actual cases involved and have to rely on the word of someone else. I’m happy that patients are protected, but feel it’s too harsh in assuming that a patient can’t participate in the situation I outlined (ie, the patient signs a waiver explaining they declined the exam.)

    “Jackpot” refers more to my feelings on malpractice awards in general — I wish, strongly, that the emotional appeal of both sides could be removed from the equation. But can you honestly say the prosecutor wouldn’t blame the doctor for not explaining it adequately, and suggest the patient was bullied? I’m insulted to think that my ability to reason as a patient is worth so little. Then again, I wouldn’t sue.

    I don’t often comment on blogs, so I’d be interested to know your specialty. My personal disclaimer is that I’m neither a doctor nor have any relatives in the health profession. I’m just trying to be an educated consumer.

  12. “It is based on the unfortunate premise that that it is nearly impossible to get a patient to sign away their right to sue for malpractice, as the law apparently assumes that a patient can never full give informed consent.”

    You’ve mixed and matched two concepts which aren’t designed to be compatible. Someone absolutely can give full informed consent, or at least sufficient to win a lawsuit, and many physicians have won informed consent cases and there are ample cases reflecting that. The law will not allow someone to completely waive their right to compensation for someone’s negligence up front, though. For an example of successful IC cases, when you’re on lexis, look under case law for any state, and type “informed consent” and “medical malpractice” and that should bring up the cases.

    ““Jackpot” refers more to my feelings on malpractice awards in general — I wish, strongly, that the emotional appeal of both sides could be removed from the equation. But can you honestly say the prosecutor wouldn’t blame the doctor for not explaining it adequately, and suggest the patient was bullied? I’m insulted to think that my ability to reason as a patient is worth so little. Then again, I wouldn’t sue.”

    I understand your feelings, but if the award all goes to cost of care, even if it is in the millions, is it truly a “jackpot”? Beyond the economic award, how do you divorce emotion when you’re considering the value of someone being unable to pick up their children, or have sex with their wife?

    Another thing – it isn’t a prosecutor in a med mal case. Prosecutors handle criminal cases. Private attorneys (for the most part) handle civil. Basic difference – civil cases involve money damages or equitable orders. Prosecutors represent the state and are jailing people.

    You say you wouldn’t sue, and hopefully you’ll never have to. But if you’re uninsurable as a result of medical malpractice and facing mountains of medical bills, how are you going to pay for them? What if you can’t work?

  13. Matt,

    Every day I ride the subway, which is heavily festooned with ad pictures of kind, empathetic-looking lawyers advertising their services. Many are looking for worker’s compensation cases, but most are looking for malpractice…at least, I’m going to have to assume so, because they encourage anyone who had a heart attack, stroke, or long operation to contact them. They’re not asking for symptoms or problems.

    Having worked in a hospital in a position where I saw patients frequently, I know all too many people who had a perfectly normal course, with a subsequent issue that is standard for their operation (hernias after abdominal incisions, the rarer PE or DVT, etc). These incidences are extensively discussed by doctors up front and are known to happen with perfect care. Some are obviously more annoyances than tragedies, but the latter do happen. I have seen patients who had that 1-in-1000 incident with competent care walk about, unhappy with their luck but understanding everything was done. I’ve then had to deal with them after they’ve called one of these subway lawyers and turn into angry, bitter patients who want money and deny that they ever were counseled about potential risk.

    I’m obviously leaving aside actual malpractice, which I know happens and am not trying to defend. What I see today is a mentality in society of three parts: first, a denial that medicine, subject to our wildly varying and frail bodies, is imperfect; second, that if a medical treatment is not perfect, it must be the fault of the doctor (and not in any way caused by failure of treatment, errors of omission by the patient, or simple bad lifestyle choices); and finally, third, that if a medical bad outcome occurs the patient deserves compensation. I can’t tell you how many sane and otherwise well-meaning friends have advocated suing over slights that were essentially self-inflicted.

    Malpractice doubtless occurs. Doctors are human and therefore there are surely bad ones running around. I don’t advocate eliminating the right to sue because I do believe it’s an important way of correcting that particular wrong.

    Where I think the system errs is in deciding when genuine malpractice occurs, and when a regrettable event occurs. If the doctor genuinely tried his best, in accordance with reasonable guidelines, then a regrettable event occurred. That does not mean the patient deserves compensation, any more than I deserve compensation if I have a natural stroke or am diagnosed with late-stage cancer tomorrow tomorrow. We all want to blame our problems on someone else. Sometimes we are just unlucky.

    This is where emotional appeal bothers me. I would like to see fair malpractice law practiced. But I think that given a case of genuine malpractice, and a genuine bad outcome that could not be prevented, juries will award each equally. When you see a crippled child, you want to help them, and hired-gun experts can be awfully persuasive in convincing you that the doctor is to blame. The problem is that the latter type of case affects good doctors and promotes defensive medicine.

    Thanks for your explanation of waiving legal rights and informed consent. I have been looking for something that clear for some time and have always wondered if I had the correct explanation. It’s nice to have something that delineates the difference.

  14. “I can’t tell you how many sane and otherwise well-meaning friends have advocated suing over slights that were essentially self-inflicted.”

    I agree with you. You don’t know how many times I’m asked “can I sue for that”, and how much time I spend explaining to clients why their expectations are out of wack. The tort reformers campaign to make people think that everyone who is rearended gets a million dollars has been effective. But it’s just not true. Saying “I ought to sue” and actually filing suit are two vastly different things.

    ” When you see a crippled child, you want to help them, and hired-gun experts can be awfully persuasive in convincing you that the doctor is to blame.”

    Yet juries find for doctors 3-1 v. plaintiffs. So obviously it’s not THAT effective. And remember – there are defense lawyers there too, with their own experts. And they are very good lawyers.

  15. Again, for my own learning, where does that 3:1 number come from? I’ve always wanted to see a citation.

    I’m glad to hear that lawyers practice discrimination in filing suits (which I do believe, although the subway advertising has been a bit discouraging). However, the NEJM reviewed 1500 closed malpractice claims and found 40% had no identifiable medical error or injury (“Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” 5/11/06). Even assuming some bias on the part of the reviewers, we can probably assume around 1/3 of the malpractice litigation was essentially frivolous.

    The study does point out that compensation for these claims is much less frequent and less payout than that for actual errors. But lawyers cost money, and so does the malpractice insurance that covers them. Furthermore, a lawyer losing a single case mostly means he doesn’t get paid. A doctor simply having a case filed against him can ruin his ability to be covered or have hospital privileges, both of which can destroy his livelihood (disclaimer: I know settlements count, but I’m unsure how/if settlements show up and am happy to be corrected). When 1 of every 3 cases is frivolous, and the consequences are defensive medicine and increased health care costs, the system seems off-kilter. I’d like to know if there are any drawbacks other than loss of revenue to malpractice lawyers. You seem to be taking the time to answer questions honestly, so thank you.

    On my current reading wish list are two items: I’d love to see any credible studies actually finding that malpractice affects health care costs, and a NEJM-style comparison of claims filed in states with different types of malpractice reform (Texas, obviously; any state requiring outside review before filing, etc). Many physicians talk about both of these issues, but I have yet to find any direct examination of them. Could someone point me in the right direction?

  16. Addendum:

    Good point about the experts. One of the more interesting suggestions I heard advocated for experts to be chosen from a neutral pool of practicing clinicians, thereby excluding those august physicians who essentially live off providing expert testimony that does not follow current guidelines. It seems like a bit of a stretch for that to be set up, as I’ve noticed any time you have two or more doctors gathered, you’re likely to see multiple differing opinions except on the most basic medicine.

    Which is why I’d love to have inarguable clinical guidelines — the idea being to stop lawsuits such as the two that both awarded the plaintiff, only one was for not administering tPA and the other one was for administering it.

  17. I hit submit too early (sorry, WhiteCoat, for clogging up the board!) and meant to finish…

    …Those “inarguable clinical guidelines,” for reasons I just explained, are just a pipe dream.

  18. Kevin,
    You can fill up my blog all day if you want. Your posts are very insightful.
    Matt is right about the 3:1 ratio for the most part. OB/gyns fare a little less well. A good source to find this info is Medical Economics magazine ( One short article from 2001 showing some data is here:
    Can’t get consent to absolve people from negligent acts. Consent of your knowledge that an airplane could crash would not absolve the airline if the pilot was flying drunk.
    Here’s a Texas article showing how malpractice caps have increased the number of physicians in Texas

  19. “Even assuming some bias on the part of the reviewers, we can probably assume around 1/3 of the malpractice litigation was essentially frivolous.”

    I don’t know that it’s all frivolous in the sense that it was filed simply to try and make a quick buck. Frankly, anyone who has ever dealt with an insurer, and I know the doctors have, knows they’re not in the business of PAYING if they can afford it, legit or not.

    I would bet med mal has a lot of cases that are filed and dropped midway through discovery. The typically short statute of limitations plus the time it takes to get the records, get them reviewed, etc. means a number of cases get filed simply to preserve the statute from running while you work it up.

  20. A woman sues her physician for “Failure to Diagnose Breast Cancer” alleging among other things that her life expectancy was shortened by the doctor’s failure. Ten years have elapsed and this woman has had a great outcome and is cancer free. Her physician wants to file suit, alleging her “Failure to Die in a Timely Fashion.”

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