Defensive Medicine: the cost of an aggressive tort industry

October 19, 2004 in Medical Legal by RangelMD

John Edwards cited a Congressional Budget Office report that the medical malpractice tort industry adds less than 1% to the total cost of health care in this country. But every physician I know would scoff at such a low figure as it does not take into account the practice of “defensive medicine”. This is when doctors order expensive tests and procedures even when the odds of finding disease are very low. A heated discussion is going on at DB’s Med Rants about this subject and I thought I’d add my two pesos.

Defensive medicine can be difficult to define (hence leading detractors to claim that it does not exist) but according to a 2002 Harris poll of 300 physicians, 79% say that they order what they consider to be unnecessary tests. “Unnecessary” in this context would mean a test that has a very low probability of finding disease (usually far less than 1%) given the clinical presentation of the patient. A less common definition would be getting a test, the results of which would neither change the diagnosis or prognosis nor change the treatment of a patient.

Defensive medicine has become so ingrained in our clinical culture that excessive testing has become the faux standard of care. When the real standards of care call for a few simple initial tests to evaluate symptoms, physicians regularly order a “battery” of advanced and often expensive tests. From a medical-legal aspect, the reasoning for this approach is straightforward. It is easier to defend against a lawsuit when a test or procedure has been performed then if it wasn’t, even if such testing would not have made a difference in the outcome of the case.

Even though it is difficult to measure defensive medicine there are some aspects of medical practice where legal defense against potential lawsuits has an undue influence over medical decision-making. Earlier this year I took a look at the rates of Cesarean section in various parts of Texas and I found that the rates of this obstetrical procedure were higher than the state average in three areas that happen to correlate with known areas of increased rates of medical malpractice lawsuits and tort abuse. The higher C-section rates in these areas also correlated with higher average costs of obstetrical care than the rest of the state. This example is just a small part of how defensive medicine adds to overall medical costs.

But all this increased diligence on the part of physicians must improve patient care despite the costs . . right? Well, no. There is no evidence that intrauterine peripartum fetal monitoring has decreased rates of cerebral palsy (the primary reason for obstetrical lawsuits) and even though C-Sections are credited with some of the decrease in neonatal mortality over the last 30-40 years there is plenty of evidence that the current high rates of C-sections in this country can be significantly lowered without affecting maternal or fetal mortality or morbidity.

Another example is the high rate of cranial CAT-scans of children in the emergency department following head injuries. Every year thousands of children receive minor head injuries as a result of typical play and sports but every year thousands of these children receive CAT scans despite the fact that they have normal neurologic exams and normal mental status (i.e. no indication of serious intracranial injury).

As a result, thousands of children are exposed to very high levels of radiation despite the fact that there is no data that aggressive scanning changes head injury outcomes and very few of these scans show any intracranial pathology. One of the reasons many of these physicians give for ordering one of these scans is because of “pressure from worried parents”. The real reason for these excess scans is that ER physicians don’t want to sit in a court room and try to explain why they didn’t order a CAT scan for a child who is now dead or severely disabled. A single CAT scan can cost over a thousand dollars. This certainly adds to the costs of medical care.

What we need is a tort system that is driven to seek truth rather then personal fortune and to use rational bases for proper compensation. We need a system where the actions of physicians are judged based on accepted standards of care by nonbiased expert witnesses using clinical evidence and evidence based medicine, and where the entire system is not run like a emotionally driven lottery a-la John Edwards.

If such a system existed and physicians felt that they could defend their decisions then maybe we would see much less excessive health care utilization and health care costs would actually drop. After all (as liberals love to point out) there is no evidence that the excessive amount of health care utilization we see in this country improves public health or affects mortality rates.

Then again, we live in a time when too many people believe that a multimillion dollar jury award is equivalent to justice served and such awards and the threat of such awards do not have any measurable effect on the health care system. These people live in a fantasy land but ironically they pay hefty health care insurance premiums as a result of excessive health care utilization that is in part caused by defensive medicine.

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