Jeff Segal, MD, JD, FACS
A lot has been said and written about defensive medicine. Some pundits have stated, “If I’m a patient, I want you to practice defensive medicine.”
This is where the misunderstanding begins. There is universal agreement that doctors should do what is reasonable to keep patients safe. Period. Doctors agree. As do patients and attorneys.
But, defensive medicine is different. Defensive medicine has a different purpose. It includes tests, referrals, and procedures focused primarily on keeping doctors out of the courtroom.
Some will argue “Wait a minute. Shouldn’t a doctor do everything possible to prevent a problem?” Here’s where an analogy helps.
Tens of thousands die in auto accidents every year. This is a national tragedy. The easy solution is to ban driving and go back to horse and buggy days. Of course that would be ridiculous. Our GDP would revert to that of a Fourth World country.
How about mandating that every driver wear a helmet and flameproof clothing? It works for NASCAR and Indy drivers. They can ram a car into a wall at 180 MPH and often walk away with few or no serious injuries.
Now, mandate that the helmet and flameproof clothing must be replaced weekly and you have to pay for it.
That’s analogous to defensive medicine. Most of the time wearing the helmet and flameproof clothing will do nothing; just add cost. On rare occasion, it will indeed keep you safe. And, on occasion, the extra equipment could cause harm (eg: perhaps the helmet will keep you from hearing a oncoming ambulance). Is it worth adding an additional $5,000 per year, for example, to make driving safer? How about $10,000 per year? And what if some of the new tools create new harms?
Defensive medicine imposes a friction cost on our healthcare system. The simple solution, which has bipartisan support, is to provide safe harbor immunity for doctors who follow doctor-developed guidelines.
We would add to that. Allow qualified immunity for doctors who consciously deviate from such guidelines when it makes good clinical sense for the patient. Just document why the deviation occurred. This would give physicians the latitude to do the right thing for patients 100% of the time, and not be penalized for doing so. There would be no such thing as cookbook medicine.
If we could get these ideas over the finish line (couldn’t resist one more racecar analogy) we could greatly improve healthcare for everyone.
1–More than 90 percent of the Pennsylvania doctors surveyed on the impact of rising malpractice insurance premiums profess to engage in defensive medicine — a catch-all term that includes everything from ordering unnecessary tests to passing off complicated patients. . In particular the process of airing and resolving claims through litigation is destructive for all concerned while the market and regulatory dynamics of malpractice insurance drive premiums into crisis cycles with pernicious consequences. Virtually all the physicians who responded to the survey said they sometimes or often engaged in at least one of six forms of defensive medicine procedures that in many cases were likely to add to health-care costs.
Of course, as you point out, defensive medicine is about ‘defense’ and not ‘medicine’. It wastes money and exposes patients to risks of tests they don’t need. How does one ‘defend’ this?
Actually the courts and tort system is an industry that consumes and transfers hundreds of millions of dollars to employees of it, every year. This includes the custody industry, court reporters, judges, ALJ, arbitrators,(they are rarely used in malpractice cases because lawyers don’t make enough money doing this), and many other employee classifications.
So there is a vested interest in keeping the status quo. Most personal injury attorneys detest each other and won’t speak a civil word to another if they meet on the street. But they band together brilliantly to support their industry and maintain it, by fiercely lobbying legislators, etc.
In fighting this battle, you have to understand that you are not just fighting plaintiffs’ attorneys. You are also fighting a deeply entrenched industry that has been thriving ever since Abraham Lincoln was practicing law. Yes, Mr. Lincoln did serve as an attorney for a number of medical malpractice cases. I bet most of you didn’t know this!
I’m not saying that it is impossible to fight this industry. All I’m saying is that it is one of the most powerful and well connected in the World. Every lawyer is part of it, even those who defend you.
i think if patients who sue doctors had any idea what they would go through in order to see the lawsuit through, they probably wouldn’t do it. On the other hand, it’s like the lottery. At the same time, doctors want to avoid the lawsuit at all costs. But once someone is sued, it changes their entire practice to even more defensive medicine.
The higher the cost of premiums and the higher the likelihood of getting sued in your county, the higher the chance people will practice defensive medicine. We order so many MRI’s for migraine patients because the one in a 1000 risk of a brain tumor. Should we spend $2M of the insurance company’s money or $1M of our own (+ $1M of our malpractice insurance co’s) in a lawsuit. That’s what it comes down to.
I so agree with you. One of the most glaring examples of this I have witnessed was when we took my mother-in-law to the Emergency department with syncope that resulted in her having been burned by a stove. The hospitalist was taking a look at her chronically swollen left leg, and without asking any questions, ordered doppler tests to rule out DVT. When I objected on the grounds that her leg had been edematous for 3 years due to radiation therapy that had compromised her lymphatic system in that area, my arguments fell on deaf ears– he went through with the doppler study anyway! That despite the fact that he could have easily documented what the physician daughter-in-law and previous medical record would have supported and avoided a test that ultimately delayed her getting treatment for her burns!