Health care costs: Defensive medicine

The Pediatric Insider

© 2010 Roy Benaroch, MD

Health care in The United States costs too much, and it doesn’t look like that’s going to change. Recent health care reform legislation doesn’t take any meaningful steps towards reducing or controlling costs. In fact, it explicitly forbids states from trying to curtail the costs of malpractice litigation in any way that would reduce lawyers’ fees.

How does a fear of lawsuits increase costs? The most direct way is “defensive medicine”– the ordering of unneeded labs and tests for the sole purpose of preventing a lawsuit, or to provide defensive ammunition in case of a lawsuit. The best example I can think of is the startling and bizarre increase in the rate of caesarian sections, which has now passed a third of all births in several states. Despite the fact that there are real and important health disadvantages to the baby and mother, a c-section is perceived as the best way to prevent lawsuits involving babies who later develop neurologic symptoms of brain damage from diseases like cerebral palsy. Basically, if a baby is found to have neurologic damage, everyone knows that a jury will probably award a huge sum to the family– despite the fact that it’s been demonstrated for years that this kind of injury almost always occurs well before birth, and nothing the obstetrician or midwife did could have prevented it. The science doesn’t matter, especially when a sad, handicapped child can take the stand, and a slimeball lawyer like John Edwards can smear the doctor, hospital, and everyone else involved (yes, he did claim in open court to have the spirit of an injured child speak through him to convince the jury to return a favorable verdict for his client.)

Of course there is far more to defensive medicine than obstetric procedures. Many CT scans are entirely unnecessary, and in fact expose patients to radiation that may contribute to one in fifty cancers. But woe to the emergency room doc who didn’t immediately scan the head of a trauma patient. Unnecessary blood tests, biopsies, and specialist referrals are all done to “spread the blame” and make lawsuits defensible.

Defensive medicine costs you more than money. When was the last time you asked for telephone advice? Doctors are very, very leery of giving meaningful advice over the phone, because we can’t take the risk of this kind of conversation in front of a jury:

Attorney: You mean you refilled the medicine without performing another physical exam? If you had seen the patient in person, you would have found the cancer earlier!

Doctor: The medicine had nothing to do with cancer! I was just trying to help the patient! It’s expensive to make them come in every month for a refill!

Anytime we tell anyone anything, any kind of advice, doctors must consider the risk of a lawsuit. Everything we say and do is supposed to be documented, too– to defend ourselves. Every wonder why the doc spends so much time scribbling in the chart, instead of talking to you? It’s not because we like writing. It’s because every single day we’re reminded that the chart is our only defense.

Do you think this hasn’t increased health care costs? Do you think it hasn’t affected the relationships doctors have with patients?

The current medical malpractice system is a disgrace. It doesn’t prevent errors (in fact, it encourages hospitals and doctors to hide mistakes), it doesn’t proportionally reprimand or punish truly bad doctors, and it doesn’t fairly compensate most victims of true medical mistakes. The only people who like this system are the trial lawyers, who contribute tremendously to Democratic Party campaigns– more than any other industry or trade group. Howard Dean even admitted, in a refreshingly candid statement, that there was no way his party would even consider taking on the trial lawyers by trying to include tort reform in healthcare legislation. It’s very clear that the current medical malpractice system is increasing costs for all of us, and nothing is going to slow down this disaster any time soon.

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20 Comments on “Health care costs: Defensive medicine”


  1. It’s sad that after all the bantering from the left and right regarding health care, the truth is that this is a bill for the health insurance companies and certainly not for average working Americans.

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  2. […] from trying to curtail the costs of malpractice litigation in any way that would reduce …Next Page Cancel […]

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  3. Dr Rhona Says:

    Another result of this highly litigious culture will be our limited access to health care. Many, me included, must consider the cost benefit of remaining in private practice. Although not the main reason for me, fear of liability certainly weighs in on your decision to choose alternative paths to primary care (which I loved) like non clinical positions or early retirement. I am concerned about who will want to take care of the next generation.

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  4. […] Pediatric Insider: …Defensive medicine costs you more than money. When was the last time you asked for telephone advice? Doctors are very, very leery of giving meaningful advice over the phone, because we can’t take the risk of this kind of conversation in front of a jury… […]

    edit by mod: This was a ping-back from http://overlawyered.com/2010/04/why-you-cant-phone-the-doc/

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  5. Max Kennerly Says:

    “Basically, if a baby is found to have neurologic damage, everyone knows that a jury will probably award a huge sum to the family– despite the fact that it’s been demonstrated for years that this kind of injury almost always occurs well before birth, and nothing the obstetrician or midwife did could have prevented it.”

    ACOG — certainly not in the pocket of trial lawyers — disagrees, and has laid down their own criteria for when hypoxia-ischemia can cause cerebral palsy:

    http://www.acog.org/from_home/Misc/neonatalEncephalopathy.cfm

    Most cerebral palsy is not connected to events at birth. Some cases, however, are.

    “The current medical malpractice system is a disgrace.”

    What would you do instead?

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  6. […] Read it. Recent health care reform legislation doesn’t take any meaningful steps towards reducing or controlling costs. In fact, it explicitly forbids states from trying to curtail the costs of malpractice litigation in any way that would reduce lawyers’ fees. Anytime we tell anyone anything, any kind of advice, doctors must consider the risk of a lawsuit. Everything we say and do is supposed to be documented, too– to defend ourselves. Every wonder why the doc spends so much time scribbling in the chart, instead of talking to you? It’s not because we like writing. It’s because every single day we’re reminded that the chart is our only defense. […]

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  7. Dr. Roy Says:

    “Most cerebral palsy is not connected to events at birth. Some cases, however, are.”

    Very true. Some are. Most are not. Science and data should decide which is which. The current crapshoot doesn’t justly compensate the genuine victims, but it sure does victimize the rest of us.

    “What would you do instead?”

    I wrote a chapter about this in my first book, or stick around here– I plan to write more about this soon.

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  8. Matthew Brown Says:

    Is this also the reason why hospitals give shamefully little information to patients about their condition, their progress and their treatment — because any information they give might be used in a lawsuit?

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  9. Mark Baird Says:

    I would like to see a good study regarding the practice of defensive medicine.

    What is the cost to society of medical errors?

    My guess is that like many things in life there are many exaggerations surrounding this issue. Being sued is an emotional issue and just like any other emotional issue in life their tend to be exaggerations. Maybe this defensive medicine is being driven by exaggerations of the odds of being sued.

    Only one in eight preventable medical errors committed in hospitals results in a malpractice claim. (Harvard Medical Practice Study Group, Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York, 1990.)

    Between 44,000 to 98,000 Americans die in hospitals each year due to preventable medical errors. (Institute of Medicine, To Err Is Human: Building a Safer Health System, 2000.)

    From 1996 through 1999, Florida hospitals reported 19,885 incidents but only 3,177 medical malpractice claims. In other words, for every 6 medical errors only 1 claim is filed. (The Agency for Health Care Administration; Division of Health Quality Assurance. Reported malpractice claims by district compared to reported adverse incidents 1996, 1997, 1998, 1999.)

    What we are complaining about is the common man’s inability of looking a complex cases and making a decision. Maybe we should not let the common man judge complex murder cases involving forensics. Maybe there are many cases where we should eliminate juries or for that matter the common man’s ability to make decisions on matters of complexity.

    I just find this hard to believe. It does not make sense.

    Five percent of all doctors were responsible for 43.3% of all medical malpractice payments.(Pg. 42)

    http://www.npdb-hipdb.hrsa.gov/pubs/stats/2006_NPDB_Annual_Report.pdf

    “Physicians widely believe that jury verdicts are unfair. This Article tests that assumption by synthesizing three decades of jury research.”

    http://www.michiganlawreview.org/assets/pdfs/105/7/peters.pdf

    “The bottom line is that those items typically blamed for rising health care costs — insurer profits, the aging of America and the high cost of medical malpractice — in fact have little impact on health care premiums.”

    http://www.reuters.com/article/idUS137490+27-May-2009+PRN20090527

    “There’s a lot of money to be made in owning imaging machines,” said Dr. Richard Strax, president of the Texas Radiological Society. “You can buy a relatively inexpensive second- or third-hand MRI machine for a few hundred thousand dollars and make millions on it.”

    http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-imaging_centers.ART.State.Edition2.4bbe13c.html

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  10. Dr. Roy Says:

    Matthew, no, I was specifically talking about phone calls. When you’re in the hospital you ought to get all of the information you need, and it should primarily come from your physician (not “the hospital.”) Lack of good communication with patients increases dissatisfaction and malpractice risk.

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  11. Dr. Roy Says:

    Mark, I think you need to get more sleep. Up at 12:45 am?

    Medical errors are a huge problem. Unfortunately the current med-mal system obviously doesn’t do a very good job in rooting out the causes and preventing errors– in fact, it creates an atmosphere where physicians and hospitals hide errors and sources of mistakes. A far better system would encourage reporting, discussion, and analysis of mistakes so preventive steps could be aggressively pursued.

    If the point of med-mal litigation is to prevent errors, the system fails.

    You stated that 5% of doctors are responsible for 40%+ of payments. If the point of med-mal litigation is to root out bad doctors, the system fails.

    You stated that “Only one in eight preventable medical errors committed in hospitals results in a malpractice claim.” If the point of med-mal litigation is to fairly compensate victims of medical errors, the system fails.

    “What we are complaining about is the common man’s inability of looking a complex cases and making a decision.”

    If the common man were given good, honest, science-based information, then correct decisions could be reached. Instead, the jury hears competing “expert witnesses” who make a huge sum of money for giving a one-sided argument. No one pays these experts to give a fair, balanced, or accurate opinion.

    Your post ends with an off-topic link about unnecessary scans increasing health care costs and contributing to fat profits for some doctors. There are laws against self-referral that have made the practice of physician-owned imaging centers illegal, but obviously some docs have figured ways around it. That’s a shame, but a topic for another post.

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  12. The following is a comment that was not posted at “Overlawyered” (which linked this post) – in response to a commenter who opined that the REAL reason doctors do not like dealing with phone calls is because they cannot bill for it:

    Heavy sigh.

    No Ben, the REAL reason IS about defensive medicine, and if you don’t get that you’ve not been awake. Doctors don’t give advice over the phone much anymore becauce they can be sued for the advice (I’ve seen it happen – several times) – even perfectly good advice (which, to cover your tail, must be recorded or documented in some fashion lest a lawyer pick it apart later) given over the phone in the middle of the night to people who will call for ANY reason, feel they are entitled to it, and (yes) don’t want to pay for it.

    It’s been my experience that lawyers charge for EVERY SECOND AND THEN SOME for the advice they give on the phone.

    The Pediatric Insider was spot-on. You can decry/bemoan all you like the notion of loss of the old country doctor who took all the calls and made the house calls, but parents/patients these days often cannot or will not differentiate the difference between a true emergency and convenience. They fancy themselved the doctor’s “close personal friend”. They don’t want to talk to a nurse. They don’t want to wait. They cannot leave a message and wait for a call-back. They don’t like the answer and want to argue. They KNOW what’s wrong and want antibiotics or pain meds called in NOW (without being seen).

    Oh, and doctors are supposed to be psychic – and anticipate every possible disaster – even when you blatantly disregard their advice.

    In most offices I’ve worked, the most stressful position for a nurse to work is the phone. In larger offices, it’s often not a position that is permanently assigned, but is rotated.

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  13. dhlii Says:

    Medical torts litigation is out of control and needs reigned in, But it is not the cause of everything. The argument made repeatedly above that fear of lawsuits prevents the medical community from policing itself is malarkey. That problem has been long before litigation reached its current zenith.
    Nor am I ready to buy that there is this tsunami of defensive testing. Sure there is some, but in my interactions with the medical community, I have seen many more instances where necessary tests were not done when needed. Or even more commonly, were done but ignored until too late. One of the big issues I have seen more recently is a complete lack of coordination of medical care. A hospitalized patient may have 4 or 5 specialist practices, each with a handful of doctors, dancing around a single patient. Today’s cardiologist does not know what yesterdays determined, and the surgeon. Gastro, and cardiologist are almost oblivious to what the other is doing. Far too often the only person who seems to have a clue is the nurse, and even those rotate frequently enough to destroy any continuity of care. As I see medicine practiced today, charting is not defensive, it is the sole means of communications between specialists, and honestly far too few of the doctors are actually bothering to read their patients charts before treating.
    Despite much of this medicine manages to do a pretty good job. Care is actually better, I think patient resources – particularly the Internet force doctors to do a better job. And while Doctors like all of us make mistakes, the human body is pretty resilient, and when it isn’t the mistake just advanced the inevitable.
    Regardless, the single largest driving force behind healthcare costs – completely un-addressed and possibly aggrevated by these reforms, is the separation of the patient from the costs of routine medical services. Simply looking at various insurance prices will tell you exactly where medical costs are. The cost of a policy with a $5000 yearly deductible, and that pays for everything are orders of magnitude apart. But for the fact that individuals rarely buy their own health coverage no one sane would by low or no deductible insurance. This tells us that the primary costs of healthcare are routine, not catastrophic, that it is in doctor’s visits and their overhead – or ER visits for routine care when doctor’s are out of the loop.
    It also suggests that doctors will not answer the phone or their email, because they can not bill for it rather than because of fear of litigation. If we want more cost effective healthcare, consumers need to foot the bill for a larger portion of routine costs, and they need to demand services such as email and phone renewals of medication as well as simple questions, at reduced costs.

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  14. Katrina Says:

    Your blog has been one of my favorites of all time. … Thanks for writing such a great blog. I always enjoyed reading it,

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  15. Mark Baird Says:

    “If the common man were given good, honest, science-based information, then correct decisions could be reached. Instead, the jury hears competing “expert witnesses” who make a huge sum of money for giving a one-sided argument. No one pays these experts to give a fair, balanced, or accurate opinion.”

    So why not reform the system to give the jury good information or as Thomas Jefferson said: “I know of no safe repository of the ultimate power of society but people. And if we think them not enlightened enough, the remedy is not to take the power from them, but to inform them by education.”

    But, I would have to agree the juries do a lousy job. That we are all somehow to stupid. It is a very simple system

    The system has a lawyer for the plaintiff (the devil, the evil one) and a lawyer or lawyers for the defendant (the good guy).

    There is one judge, the referee, and twelve citizens called the jury.

    EACH SIDE tells their story and presents their facts.

    When EACH SIDE has completed their arguments and presented all of their facts the judge tells the jury the laws that must be applied when deciding the case.

    The jury then moves to deliberate the case in private amongst themselves

    We may as well eliminate juries in complex forensic cases or machinery accidents. It is arrogant to believe just because someone does not have a medical degree they can not see malpractice or be the conscience of their community as to how the community wants to define the standards by which it wants to orient itself.

    Our Founding Fathers recognized the collective wisdom and judgment of its citizens and also understood that of each of us unconsciously seeks those bits of information that confirm our underlying intuition. This is why the founding fathers gave us a system that allows for dissent. This confrontation forces us, the majority, to interrogate our own positions more seriously.

    My wife, myself and our insurance company spent thousands of dollars trying to figure out what was wrong with her, seeing every specialist known to man.

    Finally, after a year we went to the Mayo and in three days found several symptoms. Collaborative medicine, “wisdom of the crowd” stuff, is one of the keys to good health care. That same “wisdom of the crowd” stuff we see in the free markets, Democracy and juries.

    Again juries are not perfect but…

    • A jury is made up of local citizens who are in the best position to evaluate how the conduct at issue compares with the standards of the community in which they live.

    • The jury system is spontaneous, it is not known in advance preventing any undue influence on the members of the jury.

    • Jurors are not paid by either side.

    • Jurors complete their service and return to their private lives when the trial has ended. Judges are often on the bench for many years leaving them vulnerable to influence.

    • While it may be easy to find one judge that is out of touch with the community, it is much harder to find a jury of citizens that will come to an outrageous result, but even if they do, there are mechanisms in place to correct such a result.

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  16. Dr. Roy Says:

    Mark said: “The system has a lawyer for the plaintiff (the devil, the evil one) and a lawyer or lawyers for the defendant (the good guy).”

    Why would you assume the plantiff is the “evil” one?

    And what’s the deal with “evil”, anyway? We’re talking about people making mistakes, which do happen. If a mistake occurs, that doesn’t make the people responsible “evil.” There may be genuine cases of super-egregious, repetitive mistakes made by genuinely bad people, but even doctor-haters would agree that these cases are rare. If such cases do happen, I think they ought to be handled in criminal court.

    Many trials currently take place without a jury. I’m not a legal expert, but off the top of my head I don’t think there are juries involved in workman’s comp cases, or tax court, or vaccine court. Criminal cases– that is, when the state decides we ought to lock up a bad guy and take away his civil rights– those have got to involve a jury of peers, to protect us from the possibility of tyrannical prosecution. Do all civil cases likewise have to have a jury? Apparently not, if you look at current law.

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  17. Raphael Says:

    thanks for the interesting blog, its one of my favorites

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  18. […] recently posted about the insane costs of health care, and about how defensive medicine is a big contributor. Prescription drugs are another huge cost, accounting for about 11% of the 2 […]

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  19. Dr. Roy Says:

    More evidence: defensive medicine drives costs, pain, and unnecessary testing: http://www.washingtonpost.com/wp-dyn/content/article/2010/06/28/AR2010062803592.html

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