[NPInfo] Defensive medicine

Thu Sep 27 07:47:34 PDT 2007

I somewhat disagree. I think many of us do order tests "[un]aware that we
are doing it," but also there are those of us who don't do so. I agree w/
respondents who do a lot of talking, documenting, etc. Me, well I have
something of a specialized practice--likely more liable because I am
blending homeopathy (widely derided by mainstream medicine) with primary
care, but perhaps less liable because I have the luxury of time. Studies
have consistently shown that rapport and discussion, honestly accepting
patients' concerns even when they seem a bit silly, and addressing that
forthrightly, these actions are associated with fewer legal actions. I have
lots of time for that, because I charge cash only. 

I read all the cases gone bad in Clinician's Review, and various other
places, too. Read carefully, one sees that a lot of those end up in the
defendants' favor. A lot of cases get dropped. A lot of cases settle not
because the clinician admits some guilt, but because the insurance company's
attorneys favor settlement as the least expensive option--and of course
unless you're independently wealthy, you end up using their lawyer, assigned
under your policy. So insurance becomes its own misfortune. And of course,
one could argue that laws that require malpractice insurance amount to a
full-employment laws for plaintiff attorneys (the concept of civil justice
notwithstanding!).

Reform has to come from many directions. Consumers have to be educated--and
clinicians and industry need to stop promising miracles and perfect
outcomes. Legislatures need to gain control of both runaway health care
market forces and nonsense suits. The legal profession needs to clean up its
act (too many attorneys = a hunger for new business), both interms of ethics
and supply. 

e.d.

-----Original Message-----
From: npinfo-bounces at nurse.net [mailto:npinfo-bounces at nurse.net] On Behalf
Of Jeffrey Hazzard
Sent: Wednesday, September 26, 2007 10:28 PM
To: NP Info
Subject: RE: [NPInfo] Defensive medicine

  Sue,
     Thank you for your thoughtful reply.  To quote myself, "It is killing
us."  I wrote that very deliberately.  I meant it literally and
figuratively.  I am aware of all the things you mention.  I don't have
answers.  We need some liability to keep us honest.  We need some protection
to keep us cost effective.
      I challenge you that you are conducting more needless tests than you
are aware.  Defensive medicine is so ingrained in us that we are not aware
that we are doing it.

           Jeff (St. Petersburg tonight)

Sue Wiers <sgwiers at hotmail.com> wrote:
  Wow. What is the malpractice suit rate in Florida compared to other
states?

I am not naive enough to believe that I will never be sued. However, I
honestly do not find myself constantly considering lawsuit potential of my
clinical decision making. I am sure that I will not be so cavalier when I do
get sued.

I do have a rather elaborate system for following up on concerning or high
risk situations so that people do not fall through the cracks. I do not use
medications off-label and do not prescribe antibiotics over the phone (I
once heard it said, that the phone is not a diagnostic tool). So, I do take
measures to protect myself and provide appropriate care. However, I don't
believe that potential lawsuits greatly influence my daily clinical decision
making. I try to follow what the standard of care dictates, clinical
guidelines, etc.

Another factor in this is insurance reimbursement. I cannot imagine many
insurance companies paying for annual stress tests in otherwise healthy
adults, with few risk factors for CAD, just because they have reached a
certain age. Our office is heavily based on managed care. We treat all
patients equally regardless of insurance, but cost-containment, quality of
care, yield, etc. are all always considerations for us. If we didn't, we
would be out of business.

There is also the potential negative impact of unnecessary testing to be
considered. Incidental findings requiring further follow-up that often
yields nothing. Additional procedures that could actually result in harm. 
So, I can understand your approach, but it also isn't without risk.

Sue Wiers

>From: Jeffrey Hazzard
>Reply-To: NP Info
>To: ACC Listserv , npinfo npinfo
>, Tony L Moffitt
>Subject: [NPInfo] Defensive medicine
>Date: Wed, 26 Sep 2007 10:31:06 -0700 (PDT)
>
> Hello again!
>
> Do we live and work in the same universe? I am astounded that the 
>culture of practicing defensive medicine is so ubiquitous here in 
>Florida, and seemingly not part of the lexicon and practice model of 
>providers in other states. Wow!
>
> In the big picture, it is probably true that more money is spent on 
>the insurance premiums of needless tests than on professional 
>malpractice premiums, litigation, and judgment award payouts combined. 
>But who is willing to risk the odds? Not me. Not anyone I know. The 
>only acceptable defense is, "Yes, I thought of it and ruled it out." 
>Being wrong or making a mistake is not acceptable. When you have such a 
>high standard of professional practice, hanging over us like a 
>gullotine every day, the decisions are based on fear, not science. I 
>admit it. I am afraid that using my common sense is going to cost me. 
>It is not fraudulent to think of a legitimate diagnosis, though a 
>somewhat less likely one, and then to rule it out.
>
> I don't think your notion of "doing only the tests that help make the 
>medical decision in the differential diagnosis" is wrong. I just think 
>the differential diagnosis in Florida has a lot more striped horses
>(ZEBRAS) than it does in your state. Here, it is pretty well accepted 
>that there are no acts of God, nor grace from the wronged party for a 
>mistake, nor an acceptable risk of missing a diagnosis, failing to 
>arrange for proper follow up care, or delaying an appropriate timely 
>referral. We don't even do same-sex hernia checks without a witness. I 
>would estimate that a Florida ER of 50,000 census does $2,000 in low 
>probability tests per hour. And the average primary care provider does 
>$150 in low probability tests per hour.
>
> My guru, a very competent Florida family practice doc with 30 years 
>experience (who has been sued twice) told me, "If you think of it, 
>order it. Be good to every one. Remember their humanity. AND DON'T EVER 
>MISS ANYTHING." So far, I have done all those things.
>
> Not to be disrespectful, but you and the author of the article below 
>don't live in my (our Florida) reality. The reality here is that 
>needless tests are ordered every day by lawyers.
>
> Jeff, Tampa
> ----------------------------------------------------------------
>
> The so-called 'CYA' testing(s)/Labs/etc. are not  necessary, are not 
>the standard of care, and are wasteful. Statistically  
>testing/labs/etc. which are done, particularly if done to cover one's 
>a--, are  in and of themselves an even greater source of litigation 
>than not doing  uneccessary tests/etc. - that is a fact. With 
>surprising frequency, all those  extra CYA tests/labs/etc. will 
>actually serve as useful evidence  against the practitioner. Further, 
>ordering uneccessary  tests/labs/etc. could constitute health insurance 
>or medicare fraud! Such practices  could also stimulate patient 
>complaints against a doctor to the Medical  Board (not that they would 
>care, they are all pretty much Teflon coated).
>
>Picture a physician in a deposition, either as a  witness or as a 
>defendant:
>Question(s) by Plaintiff's Counsel: Well, Doctor, you  ordered all of 
>those tests, all of those labs, spent all that extra money -  Doesn't 
>that show us that you knew that there was a problem?
>You would not have spent your patient's money like  that, several 
>thousand dollars, if there wasn't a problem would you?
>Next Q: After ordering all of those tests/labs/etc.
> you did not carefully
>review each of them did you?
>Next Q: You did not call the patient back to review  all of the results 
>with her did you?
>Next Q: You spent how many $$$$ of my client's money,  and you still 
>missed x, y, and z? Isn't that the plain, simple,  uncontrevertable 
>truth Doctor?
>
>
>
>
>Here's an interesting article:
>
>January 10, 2006
>On the defense? Not exactly.
>Yesterday I wrote my first post on Tom Baker's book  The Medical 
>Malpratice Myth. I talked about how the number of people injured  every 
>year is drastically larger than those who bring suits, as well  as the 
>fact that all malpractice spending (premiums, legal representation,  
>awards, etc) amounts to less than one half of one percent of all health  
>care spending.
>
>A commentor was keen to pick up on another malpractice  talking point 
>-- the notion of "defensive medicine". So where does  defensive 
>medicine fit in the malpractice spending puzzle?
>
>As far as we can tell, "defensive medicine" is one of  those tiny 
>puzzle pieces with the really strange shape (you know, the  one that 
>seems to have
>2.5 sides?) -- you can't figure out where it goes  until you've trudged 
>your way through the majority of the puzzle.
>
>That's because defensive medicine is notoriously  difficult to study. 
>First, researchers have to decide what constitutes defensive  medicine. 
>Then they have to tease out whether the effects of those actions  were 
>harmful or helpful. Given the fact that 100,000 people die per  year 
>because of medical error, some instances of defensive medicine will be  
>helpful because they'll help reduce that number. Others will simply be  
>unnecessary tests or more invasive procedures to ensure "certainty", 
>leading to  increased spending and even more risk.
>
>The research that has been conducted indicates, for  the most part, 
>that defensive medicine has little effect overall and that  states with 
>tort reform have slightly lower rates of spending than  those without. 
>But one thing is clear -- malpractice fears aren't sending  shock waves 
>through the system.
>
>. In a clinic scenario survey by the Office of  Technology Assessment, 
>where doctors were given a situation and asked how they  would proceed, 
>researchers calculated that 95% of doctors did nothing but order a  
>test or diagnostic procedure. The principle reason doctors gave for  
>ordering the procedure "almost all of the time" was medical 
>indications.
> "Malpractice concerns"
>were given as a reason in less than one half of one  percent of the 
>cases.
>OTA researchers concluded defensive medicine is "not  likely to explain 
>very much of the huge growth in health-care expenses over  the last 
>century".
>
>. Researchers at Syracuse examined birth records and  compared cesarean 
>delivery rates according to the number of malpractice  cases per 
>county. They found that in places with a higher malpractice risk  that 
>there was actually a slight decrease in c-sections.
>
>. Harvard researchers compared cesarean rates to the  actual hospital 
>rates of malpractice suits and found that, controlling for  all other 
>factors, a woman who gave birth at a hospital with high  malpractice 
>rates was 30% more likely to have a c-section. Except researchers also  
>found that giving birth at a hospital with a high c-section rate (and 
>not  necessarily malpractice
>rate) increased the risk of having a c-section 10  times.
>
>. Mark McClellan (current secretary of CMS) found that  heart disease 
>expenses for the elderly grew only 5-7% less in state  with tort reform 
>(expenses grew 24% per year in non-reform states, and  17% in reform 
>states) , and that the gains seemed to decrease after 5 years.
>
>This research shows that, when researchers have been  able to puzzle 
>out ways to measure it, they found very small rates of  increased 
>spending and intervention due to "defensive medicine".
>
>The bottom line is that while the evidence isn't  crystal clear that 
>defensive medicine plays no part, there's nothing that  shows defensive 
>medicine is dictating doctors' behavior. More  contemporary research 
>needs to be done (the majority of these projects were in the  late 
>1980's and early 1990's), but there's no indication of a rash of  
>doctors performing unnecessary procedures and tests because of their 
>fear  of frivolous lawsuits.
>
>
>
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