In contrast to the demanding world of blogging, where every typo results in an avalanche of criticism, the beauty of speaking on network television in quaint soundbites and writing 750 word op-ed columns in national newspapers is that you rarely have to explain yourself. You will rarely, if ever, be put in the position where you are expected to fully explain your argument, and, hiding behind the presumed credibility of established newspapers and networks, it isn’t likely that you’ll face a thoughtful critique of your argument. Just say something and, ipse dixit, it’s true. (There are, of course, rare exceptions, like when you make up Bob Dylan quotes, forgetting the legions of obsessed Dylanites out there.)

What else explains how Sanjay Gupta of CNN fame thought he could stick this whopper into his New York Times op-ed piece:

Certainly many procedures, tests and prescriptions are based on legitimate need. But many are not. In a recent anonymous survey, orthopedic surgeons said 24 percent of the tests they ordered were medically unnecessary. This kind of treatment is a form of defensive medicine, meant less to protect the patient than to protect the doctor or hospital against potential lawsuits.

Herein lies a stunning irony. Defensive medicine is rooted in the goal of avoiding mistakes. But each additional procedure or test, no matter how cautiously performed, injects a fresh possibility of error. CT and M.R.I. scans can lead to false positives and unnecessary operations, which carry the risk of complications like infections and bleeding. The more medications patients are prescribed, the more likely they are to accidentally overdose or suffer an allergic reaction. Even routine operations like gallbladder removals require anesthesia, which can increase the risk of heart attack and stroke.

Isn’t it amazing how Dr. Gupta just knows that every last medically unnecessary treatment is a “form of defensive medicine?” There’s a word for Dr. Gupta’s argument. To find that word, let me quote Dr. Atul Gawande in The New Yorker three years ago, himself quoting a discussion among surgeons about defensive medicine: 

Some were dubious when I told them that McAllen was the country’s most expensive place for health care. I gave them the spending data from Medicare. In 1992, in the McAllen market, the average cost per Medicare enrollee was $4,891, almost exactly the national average. But since then, year after year, McAllen’s health costs have grown faster than any other market in the country, ultimately soaring by more than ten thousand dollars per person.

“Maybe the service is better here,” the cardiologist suggested. People can be seen faster and get their tests more readily, he said. Others were skeptical. “I don’t think that explains the costs he’s talking about,” the general surgeon said. “It’s malpractice,” a family physician who had practiced here for thirty-three years said. “McAllen is legal hell,” the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down? “Practically to zero,” the cardiologist admitted.

“Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

There’s the word for Dr. Gupta’s argument: bullshit.

One of the great things about American federalism is that the various states can serve as the “laboratories of democracy,” and for the last decade Texas has made itself a useful experiment for the rest of us to observe by effectively destroying its malpractice liability system. Thanks to their “tort reform,” it’s virtually impossible for injured patients to hold doctors accountable for anything, and, if you happen to hold them accountable, your damages are capped at a figure so low that the case will not be worth the cost of the experts you had to hire to prove it.

If “defensive medicine” were a major contributor to the dramatic growth in unnecessary treatment we seem to have in this country, then it would stand to reason that, with a decade of tort reform under their belt, they would have made significant strides in this area. As Dr. Gawanda explained three years ago, that didn’t happen, and as Eric Turkewitz explained yesterday, it still hasn’t happened. Far from being a model of medical cost control, Texas is actually seen above-national-average growth in medical costs. Indeed, even inside Texas the possibility of malpractice liability makes no difference, and “high risk” counties with high malpractice claims rates didn’t increase spending any faster than other counties. The Texas “first, we cheat all the injured patients” experiment was a complete failure.

Of course, we’ve known for decades that tort reform does not reduce so-called “defensive medicine” and does nothing to control health expenses, as shown by the Indiana and California examples. Indeed, as medical costs continue to skyrocket, malpractice payments continue to plummet, down to a measly 0.12% of total healthcare costs in 2011, an all-time low. (The all-time high was in 1992, when malpractice payments were 0.3% of nationwide healthcare costs.)

After seeing the excellent “Choosing Wisely” campaign designed to discourage doctors from performing tests and procedures with no supporting empirical evidence, I wrote back in April that the healthcare costs debate had moved beyond defensive medicine. I was wrong: this “defensive medicine” falsehood will just keep being repeated by people who should know better, apparently because talking heads like Sanjay Gupta can’t be bothered to read even The New Yorker, much less the research.

  • Guest

    You would think that a trained medical doctor like Dr. Gupta would want evidence to support his comments. Sometimes it’s easier for doctors to blame lawyers than to blame themselves for making mistakes and for racking up billing to the detriment of patients.

    • I think Dr. Gupta has spent so much time around like-minded doctors and talking heads that he doesn’t realize just how embarrassing it is for him to pretend that the potential for profit never, ever enters into the minds of any healthcare providers. Why do doctors overprescribe and overtreat? Well, because of lawyers, of course, because doctors are completely immune to the same economic incentives that drive every other industry in America.

  • Anonymous

    Gawande’s article was about a singly highly distorted health care market, not about whether or not defensive medicine exists. One quote in it from an unnamed surgeon does not “prove” Gupta or the survey results from orthopedic surgeons wrong.

    Also, an orthopedic surgeon doesn’t make any additional profit for ordering an MRI – he may or may not be ordering it for defensive medicine, but he certainly does not see any financial gain from it.

    • You obviously did not read past the quote.

      Also, MRIs & CT scans are immensely profitable if you own the machines.

  • Jday

    I think there is an issue here with the meaning of the phrase “defensive medicine.” Take the example of the a 32 year-old female who shows up at a hospital complaining of the worst record she has ever had. She is not a drug user, no history of migrain headaches, and is under no unusual stress in her life.

    I can see a doc thinking “Well, 99 times out of a 100 this is just a bad headache and it will pass. But if I don’t scan this person I may miss the opporunity to learn that she had an aneursym. And she will die. And I will get sued.”

    If this scan reveals nothing, this doctor calls it defensive medicine. If it shows an aneursym, the doctor is a genius and a patient’s life is saved.

    So, if you define “defensive medicine” as ordering tests that have a high likelihood of a negative result in an effort to rule out a life-threatening medical condition, you will end up with a lot of negative test results and a lot of defensive medicine.

    Which is bad – unless you are the patient whose life was saved by the test.

  • Fnord

    I heard from a doctor that, in his perception, the primary costs of a medical malpractice suit are non-monetary. Even disregarding insurance, as you point out, they’re quite like to prevail eventually in any case. But the time and stress of a suit, as well as documenting the result to any future employers, results in a situation where the feeling is once you’ve been sued, you’ve already lost.

    And thus most defensive medicine is not aimed at discouraging meritorious suits (what doctor believes they’re going to be the target of a meritorious suit anyway?), but primarily to discourage and help quickly dispose of suits (and board complaints) they would eventually win anyway, and secondarily to make their lives easier if they happen to be called as a witness to case where they are not the defendant.

    Of course, that would make the caps on awards still just giveaways to insurance companies at the expense of victims, rather than something likely to reduce defensive medicine. If that mindset requires malpractice reform, something different is needed.

    • Truly useless procedures and tests don’t help prevent anything, neither meritorious nor weak nor frivolous suits, because they don’t change either the risk of injury to the patient or the proof of a breach in the standard of care. What most doctors deem “defensive medicine” is “medicine that is useful but is beneath some arbitrary threshold for utility.” E.g., a doctor will say that, but for lawsuits, they would not have performed a given test because they were 90% sure the patient was fine. The problem for them is that most doctors think that “overtesting” is evil when strangers are involved but is just good and careful medicine when the doctor or their family is involved.

      • Fnord

        It’s not about tests that are truly useless. I’m not sure any test is truly useless by that standard. You could do a head CT of a patient who comes in with a broken leg, and in some tiny fraction of cases you’ll find undiagnosed brain cancer. But no one, including you, is advocating for making a head CT part of the standard of care for a broken leg on that basis.

        If it’s a case the doctor would win at trial, then there was no breach in the standard of care. A doctor says “but for lawsuits, I would not have performed this specific test, and I’m confident that I’d be following the standard of care and that, if I did forgo this test, a trial will find that. But burden of proof matters, so I’m not confident I’d win at summary judgement, so I’ll do this additional test.” In that case, is that an “arbitrary threshold for utility”? If it is, it’s not a threshold being picked by the doctor (assuming the doctor is right, of course, but the doctor can afford to be risk-averse; after all, he’s not paying for the test and may even be paid for it).

        • I think we agree, just using different terminology.

        • Fnord

          Perhaps. It’s certainly a much messier problem than products liability. If a safety feature is unnecessary in that only one in 10 million people need it, strict liability means the same parties get both the benefits and the costs of the system, as opposed to the unlucky one getting stuck with the entire downside.

          But I can’t think of a way to make that work in medicine.

        • Right now we have a hodge-podge in medicine. The vast majority of victims of malpractice get nothing. A small fraction of victims with minor damages get something, and a modestly larger fraction with major damages get something, and then a small portion of person with major damages not caused by malpractice get something. In some states, almost no victims get anything.
          I think Pennsylvania has a decent setup: there are limitations on filing like certificates of merit, thereby making nuisance suits expensive and difficult, without arbitrary restrictions that thwart meritorious cases. I can’t think of a much better system; e.g., modeling it off of workers’ comp doesn’t work because workers’ comp ignores the question of negligence. Other suggestions for “reform” are usually just results-oriented policies designed to reduce the size and number of payouts as much as possible.

        • Fnord

          Perhaps my doctor friend’s problem was in part because of living in a different state, because from what you say Pennsylvania’s system, with the certificate of merit, sounds very much like what he wanted, reform-wise.

        • Certificates of merits will eliminate the bulk of nuisance suits that were filed solely to obtain a couple grand and walk away. It’s a simple and easy reform. Yet, the bulk of “tort reform” is aimed at limiting the ability of seriously injured patients to sue and to obtain compensation.

  • The issue of unnecessary care is a real one. Gupta identifies it but uses a problematic argument, as you have pointed out. In our book, First Do No Harm: Confronting the Inconvenient Problems of Patient Safety, (Ross Koppel, Suzanne Gordon, editors), we identify the issue of teamwork that Gupta leaves out of his analysis entirely. For example, M and M rounds are certainly critical. But why don’t they include nurses and any other team members involved in medical mistakes? Since we know that over 75% of medical errors and injuries involve problems in communication with others on the so-called health care team (a team in name only) why are there so few opportunities for debriefs between team members when an error is made? The issue of blaming lawyers is only the top of a very big iceberg that is also the top of a toxic hierarchy that makes real teamwork(and thus patient safety) a mission impossible.
    Suzanne Gordon, co-editor The Culture and Politics of Health Care Work Series, Cornell University Press

    • Thanks for the comment. That’s pretty much my point: of all the reasons for excessive treatment, defensive medicine is among the lesser reasons. Far more important are incentives, bureaucratic inertia, and a general attitude that more care is better than less care as long as it’s paid for. At the end of the day, malpractice lawsuits are a trivial part of the system — a tiny fraction of a percent of overall healthcare expenses.

  • Francois Lafleche

    Defensive medicine is not the only cause of unnecessary tests/procedures/care. That does not make tort reform a bad thing. For profit medicine, by definition, will lead to an increase in costs. It is then buyer beware time, not remove tort reform time.

    • Do tell, how do you plan to “beware” of excessive charges and malpractice? Do you happen to have a bunch of medical board certifications lying around that will help you know when, for example, a CT Scan is not needed, and when it’s essential?