[medscape] Every day, doctors face pressure to choose between practicing defense medicine or trying to lower healthcare costs.

Your patient comes in, and even if you think the treatment is ‘wait and see,’ you can’t do that. If you miss diagnosing a disease and the patient sues, his attorney will hammer you for not having done more diagnostic tests. There goes your reputation and your malpractice premium price.

What’s a doctor supposed to do?

“Overutilization” — ordering tests or performing procedures when medically you could simply trust your own clinical judgment — is the bogeyman that all sides of the political spectrum agree needs reforming.

As a result, the heavy scrutiny physicians currently face from the government and third parties will only intensify. Provisions of reform bills in Congress would rank doctors against their peers and financially punish those whose “resource use” is considered too high.

Still, often against their better judgment, physicians will practice “defensive medicine” to reduce their chance of facing a medical malpractice lawsuit.

“Physicians are between a rock and a hard place,” says Richard E. Anderson, MD, an oncologist and CEO of The Doctors Company, the nation’s largest physician-owned professional liability insurer. “We all know that costs are too high and doctors have a responsibility to be judicious in ordering tests.

“But the unpredictable legal system is still set up to encourage defensive medicine. It drives the standard of care. A doctor can be right 99,000 times in a row. But if the next case produces an adverse consequence to the patient, it can end up in court. The message is still that if you miss something, you’ll get sued.”

The focus on reducing costs hasn’t changed the incentives to practice defensively. “Due to declining reimbursements, doctors are under pressure to see more patients quickly,” says Marc Siegel, MD, an internist, author, associate professor of medicine at NYU Langone Medical Center, and a senior Fox News Medical Contributor. “When there’s time pressure that prevents ideal communication, it’s easier to order tests, especially if the patient wants them.”

“It’s now almost the standard of care to do a CT [computed tomography] scan for every head injury, especially in motor vehicle accidents,” says Alan C. Woodward, MD, an emergency physician and past president of the Massachusetts Medical Society. “We practice maximalist medicine to avoid missing any problem our clinical judgment tells us may be extremely remote.”

Physicians will err on the side of doing too much rather than face a plaintiff’s attorney, years later, asking them on a witness stand, “Why didn’t you do this simple test to rule out . . .?” So youngsters who fall and hit their heads will get CT scans. Patients who complain of heartburn or chest pains may get referrals to cardiologists and full cardiac workups. Most ankle sprains will get X-rays.

Defensive medicine is rampant because “the threat of being sued is pervasive and doctors simply don’t trust the legal system,” says Woodward.

What’s the Difference Between ‘Careful’ Medicine and Defensive Medicine?

Some years ago, the US Congress Office of Technology Assessment defined defensive medicine as: “When doctors order tests, procedures, or visits, or avoid high-risk patients or procedures primarily (but not necessarily solely) to reduce their exposure to malpractice liability.”

“The basis of the choice need not be conscious and the practice is not necessarily without benefit to the patient,” notes Anderson. For example, tests that rule out more serious problems may provide some peace of mind to patients. So might referrals to specialists.

What motivates a physician to order a specific test isn’t always clear. “It is impossible to estimate how many physicians perceive the defensive pathway to be medically correct, but failed to acknowledge the degree to which these ‘medical’ standards had been influenced by fear of liability,” Anderson adds.

Guidelines have reduced defensive medicine in other countries with different legal climates. For example, the Ottawa ankle rules help physicians decide if a patient with foot or ankle pain should get an X-ray to diagnose a possible fracture. They were established because only 15% of X-rays were positive for fracture. When these well-regarded rules are followed, they’ve significantly reduced unnecessary X-rays.

Yet as 1 skeptical internist from North Carolina quipped at a recent medical conference, “It may be the patient’s ankle. But it’s my career. I’ll do the X-ray.”

Much of what’s been called defensive medicine occurs in emergency departments. Emergency department physicians argue they need to test extensively so they won’t miss serious diagnoses such as heart attacks, strokes, and blood clots, which can be fatal. After all, these doctors don’t have ongoing relationships with patients and worry that many won’t get the follow-up care they recommend. Emergency department physicians rightly fear that they’ll be sued if a patient’s condition deteriorates after discharge. It’s hard to draw a line between being appropriately cautious and being overly aggressive.

Some attorneys say defensive medicine is actually good medicine. “There are certain tests that the condition or injury require for a proper diagnosis,” says James Lewis Griffith Sr., a veteran malpractice attorney in Philadelphia who represents both patients and physicians.

“If after you do those tests you still don’t have a diagnosis or the tests show that your initial diagnosis was wrong, you have to do other tests and procedures. If the patient doesn’t respond as anticipated, you have to question that diagnosis and treat the patient until the treatment produces a cure. This isn’t defensive medicine. It’s careful, patient-centered medicine,” he says.

How Defensive Medicine Drives Up Costs

Determining the costs of defensive medicine may be impossible. In a fee-for-service system that rewards overutilization, it’s difficult to separate defensive medicine from medical providers’ profit incentives, says Woodward.

A 2003 study by the US Department of Health and Human Services estimated the cost of defensive medicine at $60 billion a year. The American Medical Association pegs it at $200 billion. So does a recent study by PricewaterhouseCoopers’ Health Research Institute that calculates defensive medicine at $210 billion per year, or 10% of all healthcare spending.

While health economists may disagree about those estimates, there’s little debate about how prevalent defensive medicine is.

A study last year by the Massachusetts Medical Society found that 83% of its doctors practice defensive medicine at a cost of at least $1.4 billion a year in that state alone.

Over 20% of X-rays, CT scans, magnetic resonance images, and ultrasounds; 18% of laboratory tests; 28% of specialty referrals; and 13% of hospital admissions were ordered for defensive purposes.

Defensive medicine isn’t benign, Woodward notes. Many small communities have little or no access to top level care. Patients exposed to unnecessary imaging tests face the risks for radiation exposure and allergic reactions. Many surgical procedures, such as caesarean sections and breast biopsies, have increased because of the fear of being sued, the study found.

But What’s the Alternative?

Opponents of tort reform argue that physician fears of malpractice litigation are exaggerated. After all, more than 80% of malpractice cases are closed without payment — and when there is a trial, the physician-defendant wins 89% of the time, according to claims data from 1985 through 2007 compiled by the Physician Insurers Association of America.

What’s more, 24 states already have imposed caps on awards for pain and suffering — the tort reform most favored by the AMA — and 6 others cap total damages.

“New filings in Pennsylvania are way down since a ‘tort reform’ measure was passed,” says attorney James Griffith. “Lawyers screen cases more meticulously than ever. Even in meritorious cases, the defense prevails 90% of the time because the public has been whipped into a frenzy by the scare tactics of the insurers and medical groups.”

Also, there’s little evidence that defensive medicine has declined in states that have passed tough tort reform measures. Much of what’s called defensive medicine is simply padding of bills and overutilization, they argue.

Physician groups disagree. “It’s true that some tort reforms, such as MICRA in California that imposes caps on non-economic damages as well as other measures, are effective in reducing malpractice premiums,” says Anderson of The Doctors Company. “But the frequency of litigation is still high and that’s why defensive medicine persists. Reforms help, but it’s only a relative reduction in the risk doctors face.”

“Doctors do win most cases but they fear entering the world of the lawyer,” says internist Marc Siegel. “Courts are unpredictable and the stress of being sued — with years of depositions, worry and damage to your reputation — is a devastating experience even if there’s no payment to the patient.”

Indeed, the American Academy of Family Physicians cites a study of physicians who have been through malpractice trials. Ninety percent said they suffered significant mental effects from the lawsuits, and 10% considered suicide.

“Doctors never ‘win’ a malpractice case,” says Woodward. “It takes 5 years for most cases to reach a conclusion. That’s 5 years of worry and fear. It isn’t the potential award necessarily but it’s the adversarial legal process that drives doctors to practice defensively.”

Divided Opinion on Medical Need vs. Defensive Medicine

From 2000 through 2006, Medicare spending for imaging services paid for under the physician fee schedule more than doubled — increasing to about $14 billion, according to a Government Accountability Office study in June. Spending on advanced imaging, such as CT scans, magnetic resonance imaging, and nuclear medicine, rose substantially faster than other imaging services such as ultrasound or X-ray.

How much of that spending is justified by medical need? How much is the result of defensive medicine? How much is simply overutilization under a fee-for-service system that rewards doing more?

There are no simple answers. As the Government Accountability Office notes, cutting-edge image technology can help diagnose and treat life-threatening diseases and help physicians arrive at earlier diagnosis. But the double-digit growth in these services indicates that something else might be going on.

Writing in The New Yorker last June, general surgeon Atul Gawande, MD, examined why 2 similar border towns have such different experiences. In 2006, patients in McAllen, Texas, received vastly more diagnostic tests, hospital admissions, operations, specialist visits, and home nursing care than patients in El Paso, Texas, although the quality of care in McAllen is no better. (He chose Texas partly because that state has passed a much acclaimed tort reform measure.)

Defensive medicine couldn’t account for the disparity, he concluded. Instead, McAllen doctors ordered more services because of a “system of care that was highly fragmented for patients and often driven to maximize revenues over patient needs.”

Overtesting also occurs because patients, especially those with insurance who are shielded from the true costs of care, demand it.

“It’s not uncommon for a patient to push me to order a test I don’t think he needs,” says Siegel. “I’ll explain why the test isn’t indicated. But if the patient insists, I’ll probably do it. It’s ultimately his choice. No doctor wants angry, frustrated patients. If there is that 1 in a million chance that I’m wrong, I’ll placate the patient. It’s hard to argue in court years later why I didn’t order a test the patient wanted.”

So What Should Doctors Do?

Unfortunately, even physicians who want to lower healthcare costs can do little differently without putting themselves at risk. Defensive medicine won’t be reduced until physicians’ fear of being sued abates, say malpractice attorneys, insurers, and patient safety experts.

Malpractice insurers say they don’t tell physicians how to practice medicine, but their risk management departments stress the basics: documentation and better communication with patients.

“Good documentation makes it easier to defend cases and often discourages plaintiffs’ attorneys from bringing suit,” says Brian S. Kern, an attorney and professional liability insurance agent. “Lay out all the possible options. If a test seems unnecessary, explain that to the patient along with alternative plans. The best way to protect yourself is to document why something was done, or why you decided not to do it. All this takes time but it does provide protection.”

“Communication skills are the best way to avoid the courtroom,” says internist Siegel. “Stay on good terms with the patient. Explain your thinking. Don’t lose your temper.” Some research has shown that patients are less likely to sue doctors they like.

Another suggestion is to examine your own motives honestly. Are you practicing defensive medicine, or is that an excuse for adding to your fees?