Courting Justice: The Myth that is Defensive Medicine

May 15, 2013

You’ve heard it before and I’m sure, as we enter a new election cycle where candidates need a platform to run on, you’ll hear it again: the practice of defensive medicine is costing the American public trillions of dollars.

This claim is a major component of the tort reform movement. Tort reformers contend that in our ridiculously litigious society, where plaintiff trial lawyers are akin to barracudas in a guppy pond, doctors are forced to order unnecessary tests and studies to avoid malpractice lawsuits. As a result of this practice, the overall cost of healthcare has sky rocketed. Now that they’ve told you what to be afraid of, they then offer a solution. If we limit the right to sue for malpractice, we will bring healthcare costs down dramatically and save the system.

For a long time, tort reformers wanted you to believe we had a medical malpractice crisis. Now they want you to believe we have a defensive medicine crisis. Guess what? I don’t buy it. I don’t buy that we have an epidemic of doctors ordering unnecessary diagnostic studies to avoid malpractice suits.

First and foremost, what tests are we talking about? Mammograms to detect breast cancer? Colonoscopies to detect colon cancer? An X-Ray when your lungs are filled with fluid? Last time I checked, these tests are ordered so that we can catch and treat horrific diseases early, and give the patient the best chance of survival.

Second, a large majority of the cases I handle involve a very common human mistake that we all make. We make assumptions about things rather than take the time or make the effort to confirm whether our assumptions are correct. Consequently a significant number of the cases I handle involve the failure to order a necessary test to rule in or rule out a medical condition. I just settled the case of a 15-year-old boy whose pediatrician assumed that his swollen and bruised finger was jammed, and did not order an x-ray to confirm if it was broken. It was broken. The finger grew back crooked and had to be surgically re-broken and fixed. As a result, the finger doesn’t work.

A few years ago, I resolved the case of a little girl whose hip infection ate away at her hip bone. It could have been diagnosed and treated before the damage was done had the doctor ordered an ultrasound rather than assume there was no infection. If doctors are actually ordering unnecessary tests, I’m just not seeing it in my practice.

Lastly, when the orthopedist sent you for an MRI of your back or to a physical therapy center for treatment, did you ever stop to find out who has a financial interest in the imaging or therapy center? It is not unusual for a doctor to send a patient for tests and treatments to a place that he owns or has an interest in. While there are laws that are supposed to limit this practice, there are loopholes.

Hmmmm. Could it be that tests are ordered because someone can make a buck on it? I’m not suggesting that the test was unnecessary. I am suggesting that the same economic principals apply to the practice of medicine that apply to other businesses. We are all motivated to act in our best financial interest.

Maybe that explains why I’ve seen pregnancy tests charged on hospital invoices for senior citizens. Yup, I guess my 85-year-old client could have been pregnant. That $92.50 pregnancy test was certainly necessary.