Why Defensive Medicine Won't Go Away...and Might Become Worse

Ilene R. Brenner, MD


April 19, 2011

In This Article


Individual states have been addressing the problem of medical malpractice lawsuits in different ways with varying degrees of success. Because medical malpractice premiums are skyrocketing, doctors have put pressure on lawmakers for help.

However, not much help has been forthcoming, and the problem goes far beyond high premiums: up to $204,000 annually for obstetricians in some Long Island counties in New York. The whole system is broken.

First of all, defensive medicine is real. Every doctor will readily admit to doing tests to placate their patients. It is faster to say yes, and patients are happy that they got everything "to be safe." Two things constitute a lawsuit: bad outcome and angry patients. Doing extra tests can help both parts of the equation.

It's not necessarily good medicine to do so many tests, especially when they are CT scans that can cause high doses of radiation. However, for every test deemed "unnecessary" there is an anecdotal story of how it caught that small tumor and saved that patient's life.

It comes down to acceptable risk. When a physician examines a patient with a head injury and clinically clears that person without doing a CT scan, that physician is practicing good medicine. However, if one of those patients has an epidural hematoma and dies there is a high likelihood of a lawsuit, especially if that patient asked for a scan and you refused. Although that physician might win the case if the jury can be convinced of the veracity of a clinical rule-out, that was still years of stress and anxiety for the physician.

Doctors Need to Be Protected

In other words, if the government wants to follow clinical guidelines that don't require tests for every diagnosis, the government also needs to protect physicians from the threat of a lawsuit if indeed a statistical certainty occurs with a bad outcome.

Currently, the Obama administration is trying to cut down on what are deemed unnecessary tests. If a patient has a headache and gets a head CT scan and it is positive, all is well. However, if the CT scan is normal the government wants to enact rules that refuse payment -- all in the name of preventing excessive testing. However, the government doesn't want to assume the increased medical malpractice liability risk that is certain with those kinds of policies.

Unfortunately, a new phenomenon is contributing to an increase in defensive medicine: overreliance on unscientific patient satisfaction surveys such as the Press Ganey Ratings. Because physicians are forced to pay closer attention to patient impressions of their visits, they will do their best to placate their patients -- and that will increase costs.


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