Don’t look to immunity to lower health care costs

Before we can address the macro issues of lowering costs, we must address our culture of over-testing

This may come as a great shock to many readers, but I am not in favor of sovereign immunity for physicians as a way to decrease defensive medicine and lower health care costs. There is no reason why a physician who is truly negligent should be totally let off the hook. No, I’ve said it before and I’ll say it again, the onus is on emergency physicians to stop ordering needless – even harmful – tests.

Physicians tend to justify over-testing by saying, “It’s good medical-legal practice,” but it’s crippling the system, or worse. In the United States, we order perhaps 10 times as many head CTs on children as they do in Europe. In case you haven’t been to Europe lately, there are not a lot of dead kids laying around. Supposedly, we order these CTs for malpractice purposes, but as far as I’m concerned, the ordering of CT scans on the heads of children, unless they have tremendous indication, is malpractice itself. No one ever thinks of the 30-year impact of shooting radiation at 150 times the dose we would give for a chest X-ray at a child’s growing brain.


Or take the examination of a child’s abdomen. Lighting up children with 450 times the radiation of a chest X-ray to determine whether they have appendicitis seems ludicrous to me. To see emergency personnel and surgeons then decide that the child needs a second CT scan borders on lunacy. Whatever happened to the days when, under clinical suspicion, we just took them to the operating room and removed the appendix? There was about a 10 to 11 percent miss rate with this technique. Today, even in the best of hands, there is a 5 to 7 percent miss rate with CT scanning. About the worst thing that can happen with an unnecessary surgery is that the child will never get appendicitis again in their life. More common sense, more repeat examinations and less testing is the way to go.

 What we need is a true change in the paradigm of how malpractice is determined and measured. This should not be an intellectual freak show played out in front of 12 people who are not smart enough to figure out how to get out of jury duty. This should be presented to professionals in the field who actually determine whether reasonable things were done in the care of a patient. A way to do this would be for the legal and medical communities to come together to set up standards and measures under which no legal action could be taken. Take for a example a child who is hit on the head. Under a medico-legal agreement, the fact that he did not have a positive neurological examination could mean that the patient could be cleared on clinical grounds. These kinds of standards would go a long way towards reducing unnecessary tests which have a zero or negative affect on health care in the United States.

Of course, there is one problem with setting up standards of practice between the medical and legal communities. Medicine changes every day and what constitutes the standard of care is a constantly shifting sand. What was acceptable two years ago is not acceptable today. The legal system, on the other hand, moves in geodesic time. Its inability to adapt to the needs of the public is legendary. Remember, it took 20 years in some states to stop mandating silver nitrate in the eyes of newborn babies to prevent gonorrhea long after the proper antibiotics had been developed.


The truth is that there is a small amount of malpractice in the country. Whether those cases are ever properly evaluated and compensated is hit-and-miss at best. There is no question that a medically-driven system which used true health care professionals to look at the quality of care would be a much better way of handling the problem. The Europeans, Australians and New Zealanders have done a much better job over the last 30 years of getting a handle on this situation and a good first step would be to study what has worked, and what hasn’t. Then again, not to end on a note of pessimism, but we now live in a culture dominated by the lottery mentality. No one wants to look at the true cause and effect of any disease and no patient wants to take responsibility for any aspects of their own health care. To move to an intelligent dispute resolution system would be nothing short of a miracle.

Greg Henry, MD, is the founder and CEO of Medical Practice Risk Assessment, Inc. Dr. Henry is a past president of ACEP and has directed an ED for 21 years.


  1. Shant Garabedian on

    Dr. Henry,
    Ever since I subscribed to EPM I have been eagerly reading your articles sometimes in amazement as to why someone with your foresight is not helping our “leaders” make some tough decisions for the betterment of us as a whole. I even make copies of your articles and hand them out to my EDP’s who insist on “lab-ing” and CT-ing everyone that walks in through the doors. The claim is the fear of malpractice, but my feeling is that they no longer have the skills to practice Emergency Medicine. They are relying on a blood test or imaging study to make the diagnosis for them instead of using these handy tools to support the diagnosis that they have formulated after examining the patient. To make matters worse, our patient have now become so accustomed to getting CT’s and blood tests every time they have a minor complaint that when they don’t receive the tests, they feel like they’ve been wronged or not taken seriously. I had a mother of a spunky one year old the other day that even knew the lingo, like “I want a CBC to check his White count”. Even after sitting and explaining to her that an elevated WBC would still not change my approach or treatment, she still wasn’t convinced. In the end, I didn’t order any tests, she felt OK, but called back a few hours after discharge saying she’s returning because her child’s fever went back up!!! We are dealing with uneducated/fearful/impatient folks who also do not have decent primary care providers. Their “PCP’s”, some of whom may be non-physicians are just as quick to order a blood test, a scan, and write an unnecessary script as my EDP’s. Also, the end of life issues you raised last month are so very true. Everyone wants everything all the time, but no one wants to pay for it, no matter what the costs are. Keeping an essentially lifeless body indefinitely on life support makes absolutely no sense. I always say to my patients’ families: the Quality of life is what’s important, not the Quantity”. Just existing doesn’t cut it. It’s no different that nursing home patients with severe dementia with foley catheters who we aggressively treat with high power antibiotics every time they get a UTI or even pyelo, thinking we’re “saving” them. At some point something is going to kill all of us, whether an MI, Stroke, Infection, Trauma. It’s got to be something. We as a people need to understand that and accept it. We can’t all “live” or I guess “exist” indefinitely and expect someone else to pick up the tab. I would love to see how some of these “families” who say “do everything” to grandma with dementia would react when they actually would be responsible for a bill of over $100000. I bet they would be more prone to ask more questions and weight their options. I am not saying we have to be inhumane. People take these things to exaggeration, no different than the 79 y.o. doc who wrote to the editor saying that Dr. Henry should not be discussing these things, and should leave it to the ethicists. He apparently survived sepsis and is still functional. This doctor was running marathons before his sepsis. He sounds like he was quite fit. My 87 y.o. father takes no meds and goes shopping by walking everywhere, everyday. Would I get aggressive with him with an infection, absolutely. But I also have taken care of a five year old, who unfortunately sustained hypoxic brain injury at the age of two, who now is living on a vent, has tubes everywhere, who is being indefinitely “sustained” while he has absolutely no quality of life and is not expected to do so anytime soon, at the cost of millions. I can’t understand that at all, when the millions spent on that one child could be spent on improving preventative services to the poor “healthy” children in our under-served areas.
    I’m sorry for writing so much, but I honestly do appreciate you comments and hope some connected politician will use your knowledge, experience, and insight to their and our advantage.
    Jackson, TN

  2. Patrick N. Connell, MD, FACEP on

    After 29 years of full-time ED practice, I have re-located to Honduras where I work in a very busy clinic ministering to the underserved. Working in an environment without CT and the panoply of testing available in the US demands that one resurrect basic skills often lost over the years: ie, history and physical exam! You listen to the patient, examine them in detail and then you gotta come up with a treatment plan. You can’t defer making a decision by ordering tests. You need a consultant: look in the mirror! You are it! Thank God for internet.

    It is interesting to work where your bond with the patient is the strongest and most effective part of the therapeutic process. When the patient recognizes that you truly care and are really listening to them, and that you will assist them in any way possible with very limited resources, you have found the essence of our honorable profession.

    I do agree with Dr. Henry’s comments about the absurd overuse of tests in the context of the “entitled states of America.” As the push for universal health care mushrooms over the coming years, the medical profession needs to be in the forefront of designing the future. And we need to do this by emphasizing the basic values of our calling. Can we do this? Can we let go of the wallet issues that seem to dominate much of the current discussion?

    When all the players are at the table of universal health care, each with their vast self-interests at heart, can we take the high road?

    Part of taking the high road is to deal with medical negligence in our own house. We have too long been perceived as protecting our own. And much of this perception is true. And you all know it. It has to end. A “no-fault” system that addresses mistakes and implements remedial action is needed. If a doctor has a knowledge deficit in a certain area, and is otherwise careful and competent, then the solution is fairly simple. If a doctor has behavioral issues or psychological issues related to overwork, burn-out, or personal issues, the remedies are more complex but generally workable. And there will be a few who are non-remediable and we must deal with them.

    Ultimately, we need to advocate just compensation for the injuries we cause outside of the adversarial legal system that exists today. And we must insist on fair and impartial system to determine whether or not there has been negligence.

    If you read this far, thanks for listening. A final comment: in the US, the good doctor addresses the patient’s pain and gives him opiates. In Honduras, the good doctor addresses the patient’s pain, and gives him NSAIDS and vitamins. The patients in Honduras seem to do better with this approach.


    Patrick N. Connell, MD, FACEP
    Honduras, Central America
    Maricopa Medical Center, Phoenix.

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