Apples and oranges. Most public regulatory bodies (i.e., bar associations and public health boards) do a poor job of professional oversight of both the medical and legal professions. That is different from the tort system, where only doctors are seeking the benefit of having damages caps, and the proposal for medical courts run by doctors (not attributing this to you, B. Rad) puts the hens in charge of that particular henhouse whereas lawyers in legal malpractice cases still get to face juries who, let’s face it, don’t particualrly like them.

B.Rad:

Perhaps I didn’t make my point well. I know that there are a lot of tests, etc. that get ordered because the doctor is scared he is going to get nailed, as you put it. If we as a society want little uncertainty, then those tests are actually necessary to reach the desired level of certainty, and little of it is defensive. Wasteful or excessive perhaps, but needed to reach the desired level of certainty. Whether we should require that or want that as a society and can we afford it are honest questions to ask. On the macro level, people are willing to tolerate some uncertainty, but on a micro level (i.e., their family), there is little tolerance for that, so you end up with people pressuring the ER doc, etc.

I haven’t denied that there is defensive medicine practiced, but what I am still looking for is a solid definition of what it is. Without that, a solid analysis of the cost and scope of defensive medicine is lacking and the term become a rhetorical club in the context of the medical malpractice debate. Keep in mind, I don’t believe that the defensive medicine is a myth, but do wonder about its prevalence when you look at it from the micro level — what would I want for my family?

I don’t think you will ever get a dollar amount of defensive medicine because the opposing sides will never agree. I do know that the 2% of all health costs figure that’s been touted is a complete joke, when you account for all the tests, workups, hospital admissions, overtreatments, and specialty consultants obtained. There are a lot of costs that you do not directly see. This is not a chicken and egg scenario. Docs orders these exams in response to fear of
litigation. Many docs feel that even if they practice in good faith, using sound clincal judgement, they’re gonna get nailed anyway.

I disagree with you on this and think you have it completely opposite. If we as a society allow very little uncertainty, then more unneccessary tests will be ordered thus MORE defensive exams. ER docs have told me that family members of patient have requested or demanded scans on their loved one even though this is against the docs judgement. Thus, people with no medical training dictating a medical workup with a misniscule chance of having a significant finding. Doc is put in a difficult spot and most relent.

Yet, what’s sauce for the goose is good for the gander. If self-regulation by an industry makes for poor consumer protection, why doesn’t that apply to the legal profession? A typical state bar simply ignores most complaints it receives. For instance, if you bring a complaint against a lawyer in the state of Wisconsin, there is a 3% chance of any action being taken against him. If you claim that doctors would cover for each others’ mistakes and malpractice through a specialty court, but that lawyers don’t do the same thing through the self-regulatory procedures already in place, you’re claiming an ethical superiority for lawyers which few Americans would accept. Haven’t you made an argument for changing the disciplinary procedures of lawyers, whose weak professional discipline contributes to the anti-lawyer sentiment which in the USA is as popular as popcorn?

I think that you hit the nail on the head about what it comes down to: how much uncertainty are we willing to tolerate as a society. If the answer to that question is as little as possible, then there is almost no defensive medicine being practiced — we really want all those tests run. The converse of that is that is if there is a greater willingness to accept uncertainty, then there is probably a good deal more defensive medicine. For most people, at least when it comes to them, their family, and their close friends, the answer is they are willing to accept relatively little uncertainty. For everyone else, they are willing to tolerate a bit more unceratainty. Of course there is a disconnect there, but it is what it is.

1. Defining medicine defensive if a test is negative is a moot point in my mind. Maybe if we had national standards of practice, we could gauge it better but I don’t think this is possible given the great variability of practice environments in the US and how the courts have changed practice patterns. The critical point is how much uncertainty is our society willing to tolerate in medicine. Of course there will be a patient that slips through the cracks, who really has the lung clot but a test wasn’t ordered because there was little supporting clinical evidence. But let’s get serious. Should we be scanning every patient who presents to the ER with a headache? Do we need to admit every patient with chest pain? Do we draw blood tests on babies with a typical upper respiratory infection “just to be sure”? Should we order a $3000 MRI of the spine of a 87 year old person who’s had back pain for 20 years, just to make sure there isn’t a tumor? When will it end? Who will pay for this? The ordering of tests does not occur to this degree in Europe and I think you’ll agree we are not healthier, in fact, we are less. You’re correct, putting a dollar figure on defensive medicine is hard but I estimate that 25-40% of studies I read are ordered defensively.

2. Docs may cover each other just as lawyers, CPAs, and plumbers do.
Are you saying you don’t believe in peer review, when you say you couldn’t be a physician after finding against one in court?
Why couldn’t courts or panels be composed of not only docs, but lay people, administrator, lawyers. Who is saying they should be composed of physicians only.

Any studies showing that “defensive medicine” has decreased in Texas since 2003? I’ve not seen anything one way or the other. However, everything I’ve seen shows that the cost of Texas medicine has continued to skyrocket, and we’re even among the most expensive in the nation despite the stringent reforms.

Thanks for filling me in on what a d-dimer is. Learning something new every day …..

A response to your last couple of points:

1. The parallel between the definitions of pornography and defensive medicine is a good one. I don’t dispute that there is defensive medicine practiced, I just have a hard time figuring out how do you truly define so that it can be evaluated in an honest dollars and cents way instead of as a rhetorical club. On the example that you gave where the elevated d-dimer leads to a CT scan which is done even though the clinical judgment says the probability of finding something is low, is it still defensive medicine when the clincial judgment was wrong and the CT scan comes back abnormal? I cede your point that medicine is not practiced retrospectively, but my point was that calling something defensive medicine is retrospective — it is only wasteful defensive medicine when it wasn’t really needed.

2. You will never agree to get me to agree that the idea of medical courts are a good idea. The medical profession has a well-earned reputation for protecting its own, and I have a hard time imagining that patients would get a fair shake. I would not want to be a doctor after finding against a fellow physician as part of a medical court.

Your comments and point of view are appreciated. As you know, medicine is not practiced retrospectively. Anyone can say a test was “defensive” and call it unecessary when it comes back negative, and can call a doctor a hero when it comes back positive. The d-dimer test is a blood test to see if there is abnormal blood clotting in the body–it is elevated in lung clots. Problem is, it’s also elevated in several dozen other diseases. An emergency doctor will order that CT scan if the d- dimer is only a hair increased, even though his or her clinical judgement says that there a very very low probability of a lung clot. Believe me, I see this just about every day, and this is just one type of exam that’s ordered for only this one problem. The cost of this to our society is astronomical.

I think medical courts would be a viable solution. There would be more just and swift compensation when harmed, there would be less emotion and grandstanding involved, and he standard of care would be truer.