'Defensive Medicine' A Myth – It's Only Greed

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Op-Ed Article

by Michael Koskoff
The Hartford Courant

July 12, 2009

With medical costs skyrocketing, doctors have come under close scrutiny for performing unnecessary surgery, tests and other procedures. Although ordering unnecessary procedures violates medical ethics, the American Medical Association and Connecticut doctors surprisingly admit to performing vast numbers of these procedures but place the blame on their patients, lawyers and malpractice laws.

According to these doctors, the culprit is what they call "defensive medicine."

We order these procedures to protect ourselves, the doctors argue. The procedures don't help the patient, but if we don't perform them we get sued.

In a Massachusetts study, 83 percent of doctors surveyed admitted to ordering unnecessary procedures and they estimated that 28 percent of their tests, referrals, and consultations and 13 percent of hospitalizations were unnecessary. If true, this is a disgrace to the medical profession.

To put a halt to defensive medicine, the AMA has asked President Barack Obama to include provisions in the new health care legislation that severely limit patients' right to sue. In other words, they want patients to suffer because doctors order too many tests. This is the only way, doctors argue, to lower medical costs.

The doctors' convoluted argument that defensive medicine is the reason for unnecessary medical procedures is unsubstantiated and makes no logical sense. To understand why, some knowledge of malpractice law is helpful.

Lawsuits can only be brought when a doctor has violated the standard of care practiced by other doctors. If the standard is not broken, a patient cannot sue. Therefore, only the failure to perform procedures that are required under the standard of care can make a doctor liable for the result. Even then, patients can only recover damages if they are harmed by a doctor's neglect.

The law, then, can hardly serve as a motivation for doctors to perform unnecessary procedures. In fact, the reverse is true. Each unnecessary procedure exposes the patient to risks of surgical mishaps, infection, drug side effects and other catastrophes. Harm from unnecessary procedures does result in suits against doctors.

The question then is this: If fear of lawsuits is not responsible for unnecessary procedures and tests, what is to blame for the excess and why? The answer is obvious. All of the profits from these tests and procedures go to the doctors, labs, hospitals and the health care industry. Excess procedures mean higher income for health practitioners. Could greed be the motivation?

This question was examined recently in a New Yorker magazine article. The author, a surgeon, visited two places in the United States. One was McAllen, Texas, which has the highest medical expense per capita in the country.

The medicine practiced in McAllen was replete with unnecessary tests and procedures, all making the doctors rich. Yet, Texas had all but abolished the right of patients to sue years ago. The real cause for the excess, the article concluded, was physicians' greed.

Conversely, the place with the least number of unnecessary procedures and lowest patient cost was the Mayo clinic in Minnesota, a state that has fully preserved patients' right to sue. The care given at Mayo was inexpensive and some of the best in the country. Defensive medicine was not practiced.

There is no question there is a huge amount of waste in our health care system. Some doctors have their own X-ray equipment and overuse it, enabling them to bill unnecessarily. When unnecessary tests are performed, doctors bill to interpret them. Unnecessary surgery is performed by some doctors who seek another billing opportunity. That is not the fault of patients or their lawyers.

But whatever the cause of all of this excess, with more than 100,000 patients dying in hospitals each year from medical errors, now is not the time to restrict patients' right to sue.

Lastly, if there are doctors who genuinely believe that unnecessary tests help them avoid lawsuits, they should give up the practice right now. It is unethical, does not help them to avoid being sued and is a disservice to patients and the community.

Michael Koskoff is a lawyer in Bridgeport who specializes in medical malpractice.