I’d like to give you a snappy comeback to your remarks about “reasonable degree of medical certainty,” but I can’t. It’s a terribly ambiguous doctrine. Your analysis is a little bit off of the way the law is — a doctor can’t just say “more than 50%” to satisfy RDMC, there was recent case here in Pennsylvania holding just that — but I won’t deny that juries might see it that way sometimes.

To your other argument, “The “standard of care” is an unreproducible legal fallacy,” well, then what should we do? Total immunity for doctors? Specialized health courts? Keep in mind that post hoc reviews by physicians of medical malpractice verdicts have found that juries by and large get it right and, if anything, have a slight bias in favor of defense verdicts.

I was dehydrated from both ends, and had abdominal pain. I had driven myself there, (no choice) and wasn’t convulsed in pain… so they said “something viral” and sent me home. no tests, just something for the nausea, rehydration.

I had a ruptured appendix, and a few days later was in a different hospital (having collapsed at work) for over a week. When my own doctor saw me, he went to look at my ER records, fever, the cause of dehydration (violently ill in both directions), etc and was agast that they hadn’t done a white cell count. It would have shown the massive infection that had put me in Emergency surgery the night before. (Someone he talked to people at the first hospital so I never was billed for the ER visit…)

Apparently, my pain threshold is not “normal” PERHAPS in part because I’ve had chronic rather intense pain most of my life… and had to function anyway. Perhaps because I’m somehow “odd”…

so yeah, run the extra test, _I_ can’t tell you it might be my appendix, I’m not a doctor.

A response to several of the comments thus far:

Matt’s analogy holds no water. The implication that, like the mechanic and the “soft brakes,” I “didn’t actually check” the patients is silly. A correct analogy would be “I checked your brakes and there is still a half inch of pad left on the brakes. They’re ‘probably’ good for another 12 months. I can run them through a $2000 machine to give us a better idea of when they’ll fail, if you’d like. Oh, you demand the test or your lawyer will sue me for ‘$7.24 million’ if the brakes don’t last 12 months? In that case, sure.”
Let’s look at the electrician example. Is it the standard of electrical care for the electrician to rip out all of the wiring in your house “just to make sure” that there won’t be a fire? That’s what you’re implying. It might cost you or your home insurer tens of thousands of dollars, but otherwise, how can you be “sure” that a mouse didn’t eat through the wire right next to some insulation?
Oh, and I love your example about lawyers. Is it the standard of legal care to research each issue at law in each of the fifty states before creating a brief for a client? Perhaps laws in other states don’t have binding authority, but the added persuasive authority *might* be the difference between winning and losing a case. How much legal malpractice are you committing by failing to include other state rulings in writing *your* briefs?
Not so funny when you have to live by your own illogical assertions, is it?

VMS creates the novel concept that a physician must “eliminate everything the differential diagnosis” using a risk/benefit analysis. Please provide all of us physicians suffering from GOMER syndrome with a prospective legal and/or medical formula that we should use to escape liability. It’s fine to stand in front of a jury and retrospectively say that if “X” was only done, my client wouldn’t have had an injury. Funny how I never hear any lawyers prospectively saying “do Y and you won’t be sued.”
In the patient with foot pain, there was no bony point tenderness. He had a little red mark. He said that he couldn’t bear weight on his foot, but he walked into the ED. What is the likelihood of a fracture? Pretty much nil. What does an x-ray contribute to the ultimate diagnosis? Nothing but increased costs and the false security that I can convince a jury that nothing was there on the x-ray if the patient does happen to have a bad outcome. Let’s not stop there, though, Let’s assume there is a real risk of a fracture. Does x-ray “rule out” every fracture? Not at all. Probably need a bone scan to do that. Are you now saying that every patient with foot pain who alleges he can’t walk needs a bone scan? Just because we’ve ruled out a bony injury doesn’t mean that a ligamentous injury might not exist – that is on the differential and a ligamentous injury of the foot could cause lifelong pain. Now we really need an x-ray, a bone scan, and an MRI … on every injury, is that right?
That CT scan on the little old lady on Coumadin didn’t find a bleed, but we didn’t rule out everything else on the differential diagnosis for a headache. I must have been remiss. I probably should have gotten an MRI and MRA, to rule out vascular causes, right? How about a lumbar puncture to rule out pseudotumor cerebrii? I have probably caused more injury in radiating patients than I have saved finding needles in haystacks. Where’s the risk/benefit there?
Where do I get to stop working up my “differential diagnosis”
Your example of prostate cancer is particularly appropos to this discussion. Look up “Daniel Merenstein” on the internet and see how far your “no legitimate malpractice case” gets you with informed consent.

Max, I agree that “defensive medicine” is excessive or unreasonable. Now define those terms in the setting of medical care. Why is it OK to use a “more likely than not” (i.e. 51%) standard when expert witnesses testify about a “reasonable degree of medical certainty” but you state that we must be 99+ percent positive of a diagnosis when practicing in the emergency department?
You know as well as everyone that reads Walter’s blog that there is a list of “usual suspects” for every specialty who will say whatever they are told to say for a price. The “standard of care” is an unreproducible legal fallacy.

B.Rad is absolutely correct. We are already starting to see gaps in basic health coverage because so much money is going toward paying for testing that is both excessive and unreasonable that states can no longer adequately fund their Medicare and Medicaid programs.

It is unfortunate that so many people spread the misconception that just because some type of testing was done that medical care was somehow “better.” In many cases, additional testing adds nothing to the diagnostic “certainty” or “exclusion” of a condition and often contributes to real harm.
Where are doctors allowed to stop testing so that they can “be sure” that they are free from liability if they miss a diagnosis?
None of you that stands in line to throw stones at me has even tried to answer that question.

As for the GAO, my memory is that many considered the definitions used by the GAO as rather dubious. Or were you referring to the study last summer that listed Defensive Medicine as one of the reasons that the amount spend on imaging has more than doubled recently to about $14B?

I was recently told to get an MRI when I was suffering from Bell’s Palsy. Since I would have had to pay about $300 of the bill, I asked if it was needed and what it was for. The Dr was amazed that I would be concerned about the cost, I had insurance didn’t I? When I explained the costs involved, she admitted that it was really just to rule out some things that were really rather remote and we could wait a few days to see how things progressed.

I don’t want to be one of the 99 people subjected to an unnecessary CT scan, especially when you haven’t even told me the false positive rate.

Americans are really screwed up about basic math. We’re also screwed up because we want someone else to tell us our lives are risk-free, when they definitely aren’t in medical care. We will all die of something, and trying to get tests to stop this will waste a lot of money and make people sicker.

The only thing that matters what licensed, practicing physicians believe is the standard of care. Your position is apparently that the standard of care itself needs to be lower; if so, that’s not that hard to do. Start publishing articles. Start teaching CMEs. Start lobbying hospitals to clamp down on excessive testing, Lord knows the health insurance industry will be on your side.

Fact is, doctors are encouraged to run every test they believe will help the differential diagnosis proceed because (1) it rules out severe or life-threatening conditions and (2) it adds to the doctor’s / hospital’s billing. It’s half economics, half prudence. I don’t see how we can attribute to doctors ample economic reasoning relating to hypothetical malpractice suits while simultaneously ignoring the direct financial incentive they have to order additional tests.