There's No Such Thing As Defensive Medicine

At least, not in the sense that doctors, their insurers and their lobbyists contend.

The argument behind "defensive medicine" is that doctors are so fearful of being sued that they order unnecessary medical tests in order to avoid the possibility of being incorrect in a diagnosis. From a legal perspective this makes little sense, given that doctors dictate the standard of care. If a doctor can meet the standard of care defined by his own profession without prescribing the "unnecessary" test, there's no malpractice suit. Sure, it can be a bit more complicated than that if you have disagreement as to the standard of care. But if 99% of the doctors in a particular legal jurisdiction would not order the test, even in the unlikely event that an expert witness would assert that a violation of the standard of care had occurred, a plaintiff would have a hard time arguing that they're all falling below the standard of practice for that region.

Doctors' lobbies also like to assert that malpractice litigation is a "lottery" which has nothing to do with the question of whether or not malpractice actually occurred. If doctors truly believe that, then they wouldn't be ordering additional tests - as by their own claims the quality of their treatment (poor, good, great, phenomenal, or "defensive") has nothing to do with whether or not they will be sued. It would be nice if, on this issue, the lobbyists would decide which horse they want to ride. (But if nobody ever calls you on it....)

Further, there is no evidence that any tort reform measures have had any impact on so-called "defensive medicine". As it becomes harder and harder for patients - even those severely and clearly harmed by terrible doctors - to sue their doctors, you would expect that levels of so-called "defensive medicine" would decline. The fact that it doesn't suggests either or both of the following: First, "defensive medicine" is not so much about malpractice, as it is about being right. That is, a doctor is being perhaps excessively cautious in prescribing additional testing that the doctor does not believe to be necessary, but would rather be 99.999% sure in a diagnosis than a mere 99.9%... or 95% or 90%. Kevin MD apparently believes this to be the case, even as he continues to blame lawyers for this excess of medical caution:

Often, defensive tests are phrased like this: "I don't think that your headache is anything to worry about, but 'just to be on the safe side' (or 'just to be complete', or 'just so we're not missing anything'), let's do a CT scan to rule out a tumor." Patients will then be appreciative your thoroughness and completeness. It's really quite a positive-reinforcing phenomenon.

So the doctor is rewarded by the patient's gratitude, and the patient's being impressed by the thoughtful, complete care. The doctor bills for the services through the patient's insurance company, profiting from the supposed "waste" of defensive medicine. The insurance company agrees that the tests are medically necessary and thus pays for them. And, like everything else that is wrong with the world, all of this is somehow magically the fault of trial lawyers. Second, even if it is partially motivated by fears of liability, those fears are either exaggerated or irrational. If by objective measure the chances of being held liable for malpractice, and the maximum payout for any successful malpractice claim, go down, to the extent that "defensive medicine" is truly inspired by fear of litigation it too should decline. The fact that it does not means either that doctors are not responding rationally to the realities of malpractice litigation, or that one has nothing to do with the other. Over at DB's Medical Rants, a commenter claims,

A personal example: appendicitis. I was nearly alone among surgeons in my community, in wanting to see the patient before deciding if a CT was needed. Virtually every other would hardly take a call from the ER if the study hadn’t already been done. I felt that in the vast majority of cases, the diagnosis could be made on clinical grounds. And yet, in seeing a patient and diagnosing appendicitis, and recommending surgery absent a CT scan, I always felt a bit “out there,” and always felt the need to let a patient know it could be ordered and that in fact most would order it. It was, I’m happy to say, a rarity that a patient requested it after my full explanation. What’s the point? You tell me. I can’t figure it all out.

From a malpractice standpoint, the point would be that doctors are prescribing tests which have nothing to do with potential liability. The fear here is what? Ordering an appendix surgery on the basis of a physical examination and blood tests, but having it turn out that the patient's appendix is healthy? In what state would a lawsuit over such a misdiagnosis be economically viable for a plaintiff's law firm? What type of damage award might the patient expect? (Dare I venture, none and none?)

In Dr. Centor's "rant" preceding that comment, trial lawyers are somehow held responsible for the lazy practice of medicine:

As I consider defensive medicine, what I see (and admittedly I cannot quote a study) is testing prior to a careful history and physical. Why? Because one can always defend a test result, and the history and physical are not considered as definitive. Most patients who come through an Emergency Room in 2006 have a CT scan (I am being a bit hyperbolic here, but not overly hyperbolic). Ask any radiologist, internist or family physician about the number of unnecessary CT scans in ERs and they will all tell stories.

Let's see.... The doctor charges for the consultation (apparently without actually performing any service beyond referring the patient for testing), the doctor gets to see many more patients per hour by avoiding the time-consuming tasks of taking a thorough history and performing a physical, the lab charges for the tests requested, and the doctor charges again to tell the patient the test results... and with some doctors, the test is performed by a clinic in which the doctor holds a financial stake, such that the doctor profits further from the administration of what is argued to be an unnecessary test. Yet somehow it is the fault of trial lawyers that doctors don't bother to physically examine their own patients? It is defensive medicine to not physically examine a patient?

Dr. Centor asserts in relation to defensive medicine, " physicians and lawyers probably cannot have a constructive discussion on this point because we do not share a common understanding of vocabulary." If that's true, it would appear to be because as far as doctors are concerned, defensive medicine is something that is done by "other doctors," but rarely if ever by themselves. It is responsible for billions of dollars in medical costs, as long as you don't ask for any of those claimed costs to be supported by evidence. It is supposedly driven by tort litigation, even though its claimed prevalence is independent of "tort reform" measures which limit patient access to courts and suppress malpractice litigation. And any unnecessary or redundant testing is passed off as being "defensive medicine" even though an awful lot of that testing is actually documented as being the result of self-referrals (doctors administering the tests themselves, or having tests done at facilities in which they hold a financial interest), or within the context of clinics which need to maintain a level of appointments for their high-cost medical medical imaging equipment which would otherwise operate at a loss.

Dr. Centor gives the example of stroke patients getting "both an MRI and a CT of the head for routine strokes" where no useful additional information is likely to be obtained through the second test. He gives no evidence that the double-testing is in any way related to defensive medicine, or has ever helped a physician facing a malpractice suit over the inadequate treatment of a stroke victim. But such redundant testing would be extraordinarily profitable for the facility administering the tests.

I guess the problem is one of language - until doctors can articulate what "defensive medicine" is, when it occurs, how to recognize it, what it costs, and how it actually relates to the tort system, and why tests which could as easily (or more easily) be explained by other factors should be included within the definition, then no, they're not likely to reach any significant level of agreement with trial lawyers.