Justinian Lane

A major problem with the "defensive medicine" argument

We all know or know of someone who had to fight with his or her insurance company to get a medical treatment approved.  And there have been more than a few lawsuits alleging that insurance companies were improperly denying treatments just to save money.  The harsh reality of managed care is that insurance company administrators have more of a say over which treatments a patient receives than do that patient's own doctors.  Yet the "reform" crowd wants us to believe that doctors are routinely running unnecessary tests because they're afraid of being sued.  They call this practice "defensive medicine."  Check out this article from the New York Times and see if you think it's likely that insurers are approving unnecessary tests:

Not long ago, fed up with what he perceived as a loss of professional autonomy, Dr. Bhupinder Singh, 42, a general internist in New York, sold his practice and went to work part time at a hospital in Queens.

“I’d write a prescription,” he told me, “and then insurance companies would put restrictions on almost every medication. I’d get a call: ‘Drug not covered. Write a different prescription or get preauthorization.’ If I ordered an M.R.I., I’d have to explain to a clerk why I wanted to do the test. I felt handcuffed. It was a big, big headache.” [Somehow, I think "I want this MRI because I'm afraid of being sued," wouldn't get an MRI approved. - JCL]

When he decided to work in a hospital, he figured that there would be more freedom to practice his specialty.

“But managed care is like a magnet attached to you,” he said.

He continues to be frustrated by payment denials. “Thirty percent of my hospital admissions are being denied. There’s a 45-day limit on the appeal. You don’t bill in time, you lose everything. You’re discussing this with a managed-care rep on the phone and you think: ‘You’re sitting there, I’m sitting here. How do you know anything about this patient?’ ”


There are serious consequences to this discontent, the most worrisome of which is that it is difficult for doctors who are so unhappy to provide good care.

Another is a looming shortage of doctors, especially in primary care, which has the lowest reimbursement of all the medical specialties and probably has the most dissatisfied practitioners. [The "reform" movement prefers to argue that the real reason there's a shortage of primary care physicians is that they're afraid of lawsuits.  Ironic, since the "reformers" tend to be economics guys; they should understand that doctors aren't going to flock to a field that doesn't pay well. - JCL]

Source: Essay - Fed Up With the Frustrations, More Doctors Change Course -

As long as insurers have say-so over whether they'll pay for tests and procedures, "defensive medicine" will be more myth than reality.

Justinian Lane: Author Bio | Other Posts
Posted at 11:46 AM, Jun 27, 2008 in Medical Malpractice
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Justinian: You need your own personal truth squad following you. I blame the cult criminals misleading you.

Insurance companies received their legal immunity from land pirates attacking clinical care.

From here, do the analysis first. Presumptively, all social evils have a lawyer making money.

Posted by: Supremacy Claus | June 27, 2008 2:28 PM

This is why we need more transparency in the insurance industry. If more doctors knew the extent to which the insurance companies obstruct patient justice on both the front end (getting access to the treatment they need) and back end (helping promote blocking victim compensation after they've been injured), I bet many more in the profession would lay off of the med mal caps thing and start looking at how to clean up the insurance industry. Esp. given the industry's role in getting in the way of doctor pay and milking more out of them through high premiums.

Posted by: Kia | June 27, 2008 3:39 PM

Kia and Justinian: I have a request and a challenge. I want you both to get more lawyerly. That means make your post more brief or motion like. IRAC the posts. I am not that interested in a policy debate as on the Huffington Post.

Pretend every utterance and rebuttal is made to compel a judge to rule your way. When debating Ted, what would happen if you spoke in a court as you do here? You would be fined and your case may get dismissed.

You are free to speak any way you please. But a change in style would strengthen your persuasiveness. It would also challenge others to reach for more than just bickering.

"Lawyerly" is a compliment, as I use it.

Posted by: Supremacy Claus | June 27, 2008 4:14 PM

TortDeform isn't meant to be a lawyerly website. It's not for lawyers and judges. It's for any and everyone who cares about the integrity of our legal system and who cares about fairness to ordinary Americans seeking access to justice through the courts. Sorry, I stopped doing IRAC when I finished law school.

Posted by: Kia | June 27, 2008 4:50 PM

Issue: Whether the notion that "defensive medicine" is driving up our medical costs is a problem or propaganda.

Rule: Any statement made by the Chamber of Commerce or the American Tort Reform Association is propaganda.

Analysis: There may in fact be certain instances of doctors ordering unnecessary procedures out of fear of litigation. But no study has ever quantified how prevalent this practice is. In the absence of contrary information - other than anecdotal evidence - the propaganda rule is applicable.

Conclusion: The information currently available indicates that "defensive medicine" is more propaganda than a problem.

Posted by: Justinian Lane | June 27, 2008 5:25 PM

Justinian: I am not familiar with that rule. Can you give us a citation?

Posted by: Supremacy Claus | June 27, 2008 10:48 PM

The origin of the format of the bar exam is here:

"The method is a development of that employed by Abelard in his "Yea and Nay", and is practically that with which readers of St. Thomas are familiar. The article opens with a recital of the objections, then follows the thesis, with proofs, scriptural, patristic, and rational, and at the end of the article, under the title "Resolutio" are given the answers to the objections."

From here:

Both Alexander and Peter Abelard were monks.

These Scholasticist monks also developed philology, namely parsing texts. They had sessions quite similar to depositions.

By the religious and obsolete origins of these lawyer methods, they are unlawful and violate the Establishment Clause.

How would you like it if our lawyer methods came from the Islam, or from Viking religion? The Scholasticist origin of our legal methods is as unacceptable in our secular nation.

The fact that methods are 800 years old also makes the entire lawyer hierarchy a threat to the public safety. If someone did anything as it was done 800 years ago, they would not be sued, but arrested to prevent public injury.

This is self-evident to the average person. No lawyer can understand this point. It's the indoctrination.

Posted by: Supremacy Claus | June 28, 2008 6:18 AM

"Rule: Any statement made by the Chamber of Commerce or the American Tort Reform Association is propaganda."

What arrogant nonsense ! Unless, of course you really mean that any statement put out by any opinion organization (including the ACLU and former ATLA)is propaganda.

Interestingly enough, the July 2008 issue of CONSUMER REPORTS has an article titled "Too Much Treatment" which discusses aggressive healthcare and excessive testing (a byproduct of defensive medicine). Or is the Consumer's Union a propaganda mill, too?

Posted by: Anonymous | June 28, 2008 7:47 AM

Justinian: If the rule upon which you relied for your analysis does not exist, you get a zero for the answer.

Your rule statement, devoid of any authority is mere bias, hate speech. This is impermissible in the law.

I am not asking Kia and you to take up lawyerspeak in the blog. I am asking her to take up more lawyer rigorousness of thought.

Posted by: Supremacy Claus | June 28, 2008 8:48 AM

The economics of defensive medicine are this, the insurace companies make profit because of defensive medicine. Insurance companies by law can only make money in two ways. First, on a percentage of what they take in on premiums and secondly, on the interest of the monies that they hold until they must pay them back out. For insurnace companies to maximize profit, it is essential that they have the most people paying into them the most possible, and then to hang unto the money until such time as they are forced to pay it out.

Now this is how it works with defensive medicine. Defensive medcine means more procedures and more costs which drives up the cost of medicine, this is passed on the next year as a cost increase to those insured which means more money for the insurance companies to collect interest on. They do want to precert procedures because this throws additional steps to the process that means that they can delay payment for a few weeks and collect more interest. This is the problem the doctor in the article you cited faced.

Having to fight the insurance companies is a hassle for procedure but when you jump through the hoops, you usually get it approved. If they still deny the test, you get the name of the person who denied it and inform them that if something bad happens to the patient they may be sued, guess what, the insurance company goes right along with defensive medicine.

Our ER did 34 ct scans last night that were negative. Where these defensive medicine "CYA"? You had better believe it!

Posted by: throckmorton | June 28, 2008 12:02 PM

Throckmorton, I've got a question about those ct scans. You guys only ran them because there was SOME chance they'd come out positive, right? I mean, you wouldn't run a pregnancy test on a guy... you ran them because there was what, a one in ten, one in a hundred chance they would be positive? And more importantly, you guys did bill for those ct scans I assume. So even though you may not have thought they were necessary, you did make money running them. So honestly, your ER didn't actually suffer by running those tests, did it?

Posted by: Justinian Lane | June 28, 2008 12:32 PM

If the lawyer steals 2% of the health budget, then providers make about 10% on defensive medicine. That is a 500% return on the loss to the lawyer.

The public is getting hosed by both professions and by the insurance industry. The latter has been granted immunity by the lawyer, so they are not impressed of threats of liability.

The health providers let the lawyers live because about half of the health budget is health provider rent seeking, using the threat of liability as a pretext to steal money for worthless procedures.

Want a health expense three times as big as defensive medicine, caused by the lawyer? End of life care, about a quarter of the budget wasted on moribund people.

Want another budget three times as big as defensive medicine, a total waste, and totally preventable? The medical consequences of substance abuse, homosexual sex, crime injury. These people have the total protection of the criminal lover lawyer, being excellent customers.

Posted by: Supremacy Claus | June 28, 2008 2:13 PM

The reason most of those scans were done was for this simple reason. The patients who can in with headaches had either migraines or tension headaches and wanted narcotics. 23 of those scans were on uninsured patients and the hospital will never see a dime. Now why are the scans run. Even when you are 99.9% sure that is not good enough to keep you from getting sued. Further, a case that is burnt into every ER doc is a case where someone came in to the er with a headache and did not get a scan but 4 years later was found to have a benign tumor. The ER doc was sued because he did not get the scan 4 years ago. So, here is the ER protocol for headaches that is not based on science, not based on clinical guidelines but based on legal cases. Patient in the ER with a headache gets a CT scan, regardless.

Posted by: throckmorton | June 28, 2008 3:31 PM

The sage S.C. has hit it right on the head, defensive medicine is an economic windfall for those that make money off of it. Generally, the only providers who make money from it are those that do diagnostic procedures, the main money makers are those that own the scanners and labs and of course the hospitals and insurance providers.

We can provide so much more care for a lot less money if we are allowed to practice evidence based medicine. The problem is that we practice "legally based medicine" and if you haven't noticed, nothing get cheaper when attorneys are involved.

Posted by: throckmorton | June 28, 2008 3:43 PM

Dr. T: You are the voice of sanity and maturity here.


I go to big business. I offer a program to cut the health budget in half; to crush the lawyer profession across all law subjects; to give all uninsured people top of the line insurance coverage; to markedly improve health statistics across the age range; to do so only with current technology but better management.

They say, yes, we want that. What is the price?

The price is that half of health providers get fired over 10 years, but permanently. One may be you. Opinion?

Posted by: Supremacy Claus | June 28, 2008 4:24 PM

Whether rational or irrational, Throckmorton, it sounds like there are many doctors who are making decisions based on fear. So how do we cure it, in your opinion? As long as malpractice suits exist at all, some doctors will be afraid of them. So do we just end malpractice suits?

Posted by: Justinian Lane | June 28, 2008 4:59 PM

In response to S.C.'s question. At present we are in a relative shortfall of medical providers. This is in many ways due to how we practice medicine. If we are allowed to used evidence based practices, your family doctor or internist will be allowed to manage hypertension, most cardiology, endocrinology and all the other areas of medicine that are now shopped out to specialists at a huge expense. We will not need the extent of specialists that we now have and yes many of us may be out of our current specialist jobs and be economically pushed into primary care.

As to Justinian's question. Evidence based medicine has at its root an assumption of trying to provide the best care to the most patients. Simply put, you only get a ct scan if certain criteria are met. These criteria realize that you might miss one in 50,000 but that the savings will allowing many more to be treated and potentially saved. We need these evidence based criteria to be enough in a court of law. There will always be malpractice, but lets make malpractice law about actual malpractice.

Posted by: throckmorton | June 28, 2008 6:05 PM

Throckmorton, the way a malpractice case works is you have to prove (a) What the standard of care is, (b) that the physician deviated from the standard, and (c) that deviation caused the patient's injury. Isn't that evidence-based medicine?

Posted by: Justinian Lane | June 28, 2008 6:12 PM

First, a malpractice case is a filed when someone is upset at a medical outcome. There then is a period of discovery and and attempts by the plaintiffs attorney to get you to settle. If it then goes farther, the "standard of care is what ever someone can get someone to say". This is not evidence based medicine. For example, if evidence based medicine shows that the criteria for c-sect are this but you find a "expert witness" for the prosecution who says otherwise, the evidence based medicine is thrown out the window. This makes the main part of a med-mal case the determination of the standard of care. Lets let true evidence based data be the determining standard. As I keep trying to explain, courts do not determine the standard of care. That is the problem that we have now. We need the standard of care to be defined and held up in court not the other way around. Courts and "plaintiff's witnessess" have determined that every patient with a headache should get a ct. This is where we started.

Posted by: throckmorton | June 28, 2008 6:28 PM

1) There are medical errors within the knowledge of the jury. Examples include wrong site surgery. Giving the blood transfusion to the wrong name.

2) Two experts testify to opposite opinions about the care rendered, but both do so in good faith (truthfully, sincerely). What you have is a scientific controversy. The court has no ability settle a scientific controversy. That can only be resolved by more data. Any trial conclusion is garbage scientifically.

3) In a half dozen cases, the Supreme Court held in favor of deference to clinical decisions. The most famous is, of course, Roe v Wade.

Justinian, ask this of your torts prof. How does a trial with opposing experts not violate Daubert or Roe v Wade, and the other clinician deference decisions?

Posted by: Supremacy Claus | June 28, 2008 7:06 PM

Throckmorton, isn't there disagreement in the medical community over what the standard of care for certain symptoms should be? I mean, that's part of why we get a second opinion sometimes. How do you propose to solve the problem that doctors can and do (without being paid experts)disagree over what a standard should be? Or would you go the route of SC, who would just throw cases out at that point?

Posted by: Justinian Lane | June 28, 2008 8:24 PM

When we look at the data for diseases and conditions we can establish what is the standard of care. When there is argument as to what is the standard of care, then there really isn't one! This is why it is essential to use evidence based medicine, that is to say you look at thousands of people with the same presentation and establish the guideline of how to procede.

Posted by: throckmorton | June 28, 2008 10:48 PM

lawyers suck

Posted by: P | July 2, 2008 7:25 PM