Rx for Protection Rather Than For Cure

Jay Woody, MD, FACEP

Physicians tend to agree that the practice of defensive medicine is widespread, especially in oncology where much more is at stake than in the general practitioner’s office. But whereas ordering a few extra tests can provide a sense of security for both patient and doctor, things can go drastically wrong when a benign “blip” leads to more testing and potential complications. Just ask Jay Woody, MD, FACEP, cofounder and chief medical officer of Legacy ER & Urgent Care, a Texas-based healthcare facility.

Woody recalls a time about 15 years ago when full body CT scans were becoming popular following an early cancer detection “that had saved somebody’s life.” People didn’t realize, however, that the results of these tests could also be misleading.

“I cared for a patient who had one of them done,” he recalls. “They found this spot, and so they went in and did this biopsy and it turns out it was just some calcium, which is totally normal. But in doing the biopsy, they punctured the lung, and then when they were fixing the punctured lung, an artery got damaged. And so this healthy guy who had no cancer growing in him had to spend half-a-year in the hospital from complications due to that full body scan he got.” Woody acknowledges the case is an extreme example, but he says that once you start doing more testing, you might find more “noise,” and the more noise you have, the more testing you do, and it becomes a vicious circle that could hurt a patient by prompting a test or procedure that didn’t necessarily need to be done.

Defensive Medicine Takes Various Forms

Various studies estimate that the practice of defensive medicine costs upward of $46 billion a year in the United States. A Cleveland Clinic study published in JAMA Internal Medicine, in 2014, examined the cost of defensive medicine at three different hospitals in Massachusetts, hypothesizing that “physicians who were concerned about being targeted by litigation would practice more defensively and have higher overall costs.”¹ The study, which asked physicians to evaluate their own motives for ordering tests and other forms of care, found that 28% of orders and 13% of costs were “at least” partially defensive. The mean cost was $1695 per patient (95% CI, $1566-$1824), of which $226 was defensive.Common definitions of defensive medicine include not only the ordering of additional tests or hospital stays, but also the avoidance of patients and procedures that doctors fear may lead them down paths of litigation. Often, the fear of missing something in a diagnosis leading to malpractice lawsuits is sufficient impetus for physicians to overprescribe tests and procedures. That fear is magnified among oncologists.

“You’re dealing with the life and death of the patient,” explains Larry Altshuler, MD, a board-certified internist and director of oncology intake at Cancer Treatment Centers of America in Tulsa, Oklahoma. “With primary care providers, their concerns are more [about] the diagnostic misses. For specialists, a mistake can be deadly.”

Indeed, errors in diagnosis are, by far, the most common generic cause of malpractice suits against radiologists, with breast cancer being the most frequently missed diagnosis, according to a 2012 study by Rutgers New Jersey Medical School.² “The specter of malpractice actions is a matter of continuous concern for radiologists. There is justification for this anxiety because suits against them are not rare, nor are they declining in frequency,” the authors wrote. Of 8401 radiologists enrolled in the study, 31% had at least one claim against them during their career. The study found that failure to diagnose was the most common reason for the initiation of a lawsuit, with a rate of 14.83 (95% CI, 14.19-15.51) suits per 1000 person-years. Procedural complications ranked a distant second, with a rate of 1.76 (95% CI, 1.58-1.96) suits per 1000 person-years. Failure to recommend additional testing was among the rarest of reasons for a malpractice suit (0.41 claim per 1000 person-years [95% CI, 0.34-0.50]).

“We know, for a fact, that one of the leading causes of malpractice in the United States is a delay of diagnosis of breast cancer,” says Judy Smith, MD, chief of the Spectrum Health Cancer Center in Grand Rapids, Michigan, adding that oncologists on the front lines may be under the most pressure to seek the extra security that more testing can provide. “I think there is a high degree of defensive medicine, in terms of avoiding any delay in diagnosis of cancer, especially by those who are doing the initial evaluation of patients who may or may not be at risk.”

Physician guidelines that map out treatment plans have been shown to decrease the risk of malpractice suits, Smith says. However, that doesn’t mean that doctors feel any more confident than before. “The literature is variable and very weak in terms of how much it actually changes defensive practice.”

The movement to reduce unnecessary medical costs has not had a significant impact on the practice of defensive medicine, Woody says. “I think there has been some improvement in trying to be better stewards of the healthcare dollar, but there is no doubt that doctors are still nervous and may be doing more than would lead to best outcomes.”

There’s a scarcity of information on how widely defensive medicine is practiced among oncologists, but a 2015 study of radiation oncologists in Italy suggested the practice is widespread there.³ Nearly 70% of survey respondents said one of the major reasons they resort to defensive medicine is “the climate of opinion that exists toward doctors.” Italian physicians practice defensive medicine by ordering further imaging studies (39%) and laboratory tests (35%), referring patients to consultants (43%), and prescribing additional medication (35%). The study authors described defensive medicine as “positive” when it is done to reduce malpractice liability and “negative” when doctors try to reduce their malpractice exposure by avoiding certain patients or procedures.

Medical Literature Can Be a Source of Anxiety

Some believe that conditions are not that much different in the United States. “I think the majority of physicians practice defensive medicine,” Altshuler says. “The latest statistic I saw was that almost 11% of healthcare costs are attributed to defensive medicine. That’s quite significant.”The huge amount of medical literature available to patients via the Web sometimes can spark patient anxiety and cause them to request inappropriate testing, Woody says. “People fall into reading all this stuff, don’t really understand it all, and are a little confused, and then come in with a stubbed toe thinking they need a full body MRI to rule out malignant melanoma; and then, as a physician, you’re set up for failure—or at least a big battle—to convince them otherwise.”

Woody also believes that some patients obtain an informed understanding from websites and come armed to physician visits with good information. Then it may be easier to avoid extra tests and studies “because the patient gets it,” he says.

Altshuler believes that better communication with patients may help physicians resist the urge to practice defensive medicine. He encourages physicians to take the time to sit with patients and answer all of their questions—but to do so in layman’s terms. “A lot of patients, when they get with the doctor, the doctor may explain things in medical terms, and the patients will just kind of sit there and nod their heads, but they don’t understand it,” Altshuler says. “But the doctor thinks they understand it, because they’re just nodding their heads and not asking other questions.

So physicians really need to communicate in layman’s terms and make sure the patient understands that and maybe even repeats it back to them.”

Confidence in the Physician is Essential

Woody echoes those thoughts. He says that where a working relationship between patient and physician already exists, the physician will have a great deal more flexibility in terms of what tests they have to do and what they can omit. “I don’t think [communication and education] completely mitigate the practice of defensive medicine, because even if you can convince them otherwise, you can still, in the back of your mind, be like, ‘Well, what if it is this bigger problem and I’m blowing it off?’” he says. “But I do think communication and education, and building a rapport, would allow you and the patient to perhaps become more comfortable with doing less testing, if it’s medically appropriate.”In recent years, it has been proffered that, if a physician has erred and a problem has developed, saying “I’m sorry” to patients and their families has the potential to reduce both the incidence of malpractice suits and the size of the settlements that are sought. A number of states have passed “I’m sorry” laws that absolve physicians and other health care providers from liability following expressions of apology or condolence after an unanticipated outcome resulting from medical care, the law firm Vandenack Williams LLC stated in a Web posting about malpractice claims.⁴ Malpractice suits are more about communication than monetary compensation, it said. “Incomplete, evasive, or nonexistent explanations increase patient distress compared to complete, honest, and compassionate disclosures. Apologies have been shown to not only decrease the incidence of lawsuits, but patients or family members that have received an apology are more likely to accept settlements when lawsuits arise,” the firm said. The firm advises that practices thoroughly acquaint themselves with applicable laws in their state, as these laws may not afford complete protection.

References

1. Rothberg MB, Class J, Bishop TF, Friderici J, Kleppel R, Lindenauer PK. The cost of defensive medicine on 3 hospital medicine services. JAMA Intern Med. 2014;174(11):1867-1868. doi: 10.1001/jamainternmed.2014.4649.
2. Whang JS, Baker SR, Patel R, Luk L, Castro A. The causes of medical malpractice suits against radiologists in the United States. Radiology. 2013;266(2):548-554. doi: 10.1148/ radiol.12111119.
3. Ramella S, Mandoliti G, Trodella L, D’Angelillo RM. The first survey on defensive medicine in radiation oncology. Radiol Med. 2015;120(5):421-429. Doi: 10.1007/s11547-014-0465-1.
4. “I’m sorry” legislation and medical malpractice liability. Vandenack Williams LLC website. http://www.vanwil.com/legal-articles-and-information/health-care/nebraska/im-sorrylegislation- and-medical-malpractice-liability/. Published 2011. Accessed June 22, 2016.