Defensive Medicine and Medical Malpractice

Injury & Malpractice Attorney Serving Clients Near Dallas, Ft. Worth, Plano, Arlington, Irving, North Texas & Arkansas

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As a lawyer who has been on both sides of medical malpractice suits for over  twenty years, it is interesting to hear people talk about the cost of  “defensive medicine”.  You’ve heard about this:  it is the argument that says that doctors order “many unnecessary tests” solely to be able to defend themselves in case they are sued.

Sued for what, you may ask?  Well, sued for failing to diagnose a serious medical condition that the test would have revealed by available tests.   For example, when a patient comes into an emergency room complaining of sharp pains in their lower abdomen, that complaint should (but sometimes doesn’t) make the doctor there think about appendicitis.  Doctors can order tests (sonograms and/or CT scans) which are often (but by no means always ) capable of diagnosing appendicitis when it is there.  Lower abdominal pain can mean many things other than appendicitis. 

Here’s the question:  If you or your child is the patient, is the sonogram or CT scan “necessary” or “unnecessary”?  Remember, if your appendix bursts you will (not might, but will) get peritonitis and will almost certainly need major abdominal surgery which often includes removing part of your intestines.  You might die.   Like 99.9999%  of normal humans, I bet you think that the sonogram is “necessary”.   Your doctor may think that your chances of having appendicitis aren’t high enough to justify the cost of the CT scan or sonogram.  Is it therefore “unnecessary”?

Similar issues come into play when discussing mammograms, prostate exams, chest x-rays, arteriograms,  blood tests—in fact, all of the tests which science has devised to detect illness or injury and which separate American medicine now from what it was 150 years ago. 

The people that talk about the cost of “defensive medicine” always give huge estimates of the purported cost of these “unnecessary” tests, but they never actually define which tests were unnecessary, and they certainly never say that any particular class of tests is unnecessary.  Why?  Because they can’t.  Their argument is simply that some unidentifiable number of times, some unidentified doctors ordered some unidentified tests that someone, somewhere, thinks were a waste of money.  But nobody will ever say which tests were unnecessarily ordered, how often, or by which doctors—because the one thing that is certain is that these tests save lives.

In our example of the possible appendicitis case, we all can agree that if the doctor orders the test and the test shows appendicitis (or cancer, or a problem with the intestines) then the test was clearly “necessary”.   Is it equally obvious that the only “unnecessary” tests are those which don’t show anything?  Absolutely not.  If a test shows only normal anatomy, that tells the doctor that your problem may be something else from what he thought it was, and he’ll think about what that other problem might be.  When he makes the right diagnosis because one of the tests he did proved his first impression was wrong, the test that proved the first impression wrong was hardly “unnecessary”.   Any test that gives your doctor information-positive or negative-with which to make a diagnosis is a test which has value. 

The “defensive medicine” argument isn’t about whether the tests which are done have any value, it is about whether they have enough value to justify their use as much as they are being used, or to put it another way,  “At what point does the risk of not doing a test outweigh its cost?”   If the sonogram in our example costs $200, but the risk of not doing it is that there is a 10% chance of the patient dying because of undiagnosed peritonitis, is the sonogram “necessary”?  Most of us would say yes.  If the cost is $2000, and the risk is that the patient will only be ill for a week and then get better, then many (but not all) of us would say “no”.

Doctors rightly fear that if they make the call that a test is unnecessary, and things go badly wrong for the patient because of something the test could have diagnosed, they may get sued as a result.  How you feel about that depends a lot on what level of risk you think you should be exposed to, who gets to make that decision when you are the patient, and whether you are a doctor.  It also depends a great deal on who is paying for the test.  If it is an insurance company, we are all a lot more willing to have a $500 test done than if we are paying for it ourselves. 

So the answer to the question “how much ‘defensive medicine’ is being practiced?” depends, like so many other questions, on who you ask, who is taking the risk, and who is paying the cost.  One thig is for sure, though:  when politicians make up huge numbers to justify a political goal, you should focus on the goal they're seeking, and who stands to gain from it.