New York Personal Injury Law Blog » Defensive Medicine, Medical Malpractice, Sanjay Gupta

 

August 1st, 2012

Sanjay Gupta Gets It Wrong

In an op-ed in today’s New York Times (More Treatment, More Mistakes), Dr. Sanjay Gupta argues that we currently face a crisis of about 200,000 people dying each year from medical mistakes. In doing so, Dr. Gupta — a neurosurgeon and chief medical correspondent for CNN — says that many of the injuries and deaths come from too many tests and procedures.

He cites a few war stories to support his theory about too many tests — and injuries/deaths that come from the treatments or misdiagnosis. But that is not the part that I take issue with.

This is the problematic part: Dr. Gupta claims that the reason too many tests are ordered are, you guessed it, “defensive medicine” because doctors fear lawyers and lawsuits. The problem is not with the medical community, he says, but the legal one.  He writes:

Certainly many procedures, tests and prescriptions are based on legitimate need. But many are not. In a recent anonymous survey, orthopedic surgeons said 24% 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.

I take issue with that last part I put in bold. Actually, it isn’t just that I take issue with it, but that it flies directly in the face of empirical data. It seems to be accepted wisdom in the medical community that lawyers are to blame for increased costs (and now, increased injuries and death). I noted this exact same issue a couple weeks ago when Florida doctor Lee S. Gross made similar comments to his local paper.

Given that the medical community has a long and rich history of doing research to improve medicine, you would think that, when research challenges accepted wisdom, that the community would sit up and take notice.

As I noted to Dr. Gross, when Texas implemented medical malpractice “reform” back in 2003 that capped pain and suffering awards at $250,000, the expectation was that there would be fewer lawsuits (that part worked), more doctors coming to Texas (that part failed) and lower medical costs (also a failure). The reason for fewer lawsuits, of course, is that medical malpractice cases are so difficult, expensive and risky to bring, that lawyers can’t afford to take smaller suits.

If you chop out the significant issue of pain and suffering, you are left with economic loss. And if the patient makes just a modest living, that economic loss component would also be low. Lawyers won’t take the cases because lawyers also have mortgages to pay and offices to run. It’s basic economics. The victim is left in the cold looking at the closed courthouse door.

Now back to the studies I just referenced. The actual data in one study showed that:

There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform.

And the data from a second study showed that so called “defensive medicine” continued even after patient rights had been eviscerated. In fact, medical expenses went up 13% faster than the national average.

There are really only three potential reasons for Dr. Gupta’s theory of too much testing.

  1. Doctors get reimbursed for each test they do, so there is a financial interest in over-ordering tests;
  2. Doctors simply want to look under every rock in the search for what ails the patient;
  3. Doctors have heard so much about lawsuits, that they order extra tests to protect themselves (i.e. defensive medicine).

The problem here is that 2 and 3 above seem to be conflated by many, that being fear for the patient and fear of the patient. If the Texas Malpractice Experiment is a failure in controlling costs and encouraging doctors to move to Texas, then the problem has to be either the financial interest or the desire to do good. But let’s not confuse the desire to do good with “defensive medicine” to protect against lawsuits. Because the empirical data has shot that theory down.

Don’t blame lawsuits for more testing and more deaths from unnecessary treatments. Gutting the Texas malpractice system did not reduce medical costs and tests. The problem lies within the medical community.

[Updated — More on this from Max Kennerly:  Atul Gawande Versus Sanjay Gupta On Defensive Medicine]

23 thoughts on “Sanjay Gupta Gets It Wrong

  1. I read the article and did not get the impression that Dr. Gupta was attempting to shift the blame for medical errors to the legal community. He is calling for greater mindfulness on the part of doctors ordering tests and treatments and for greater sharing among doctors of the pitfalls inherent in those procedures.I love your blog and look forward to reading your insights in to many topics but, in this case at least, it’s not about you.

  2. Betty:

    No, it’s not about me. But it is about confronting a myth that perpetuates itself with each retelling.

    In this case (and I’m not saying Gupta did it on purpose) he says two things:

    Lawsuits = more testing (“Defensive medicine”)
    More testing = more death.

    Thus, lawsuits = more death. That is the logical place the argument leads.

    But, as I indicated, the data disproves this as costs continue to rise even with decreased lawsuits. That is an important thing for the medical community to consider when looking at an assumption that has been disproven.

  3. I don’t think that is the logical place Dr. Gupta’s statement is leading. I think he is trying to call attention to a counterproductive mindset among some or many doctors, an irrational fear perhaps, of malpractice lawsuits. He is saying that this may lead to treatments and test that are not well reasoned and not based on scientific evidence. I guess we all see things from our own perspective. We can look at the same statement and come up with an entirely different interpretation. By the way, Eric, thank you for responding to my comment so quickly!

  4. Sorry, I live with a physician who will absolutely back up the defensive medicine thesis. In many cases the test is ordered only the doctor imagines what a hired expert would say in the absence of it. It’s simply not worth taking the risk of a bad outcome that is pegged to the lack of a test to rule out a statistically rare condition. @Eric Turkewitz

  5. Sorry, I live with a physician who will absolutely back up the defensive medicine thesis.

    Well, my brother is a doc, and he also agrees with that thesis. He guest blogged here on it once before:

    http://www.newyorkpersonalinjuryattorneyblog.com/2009/09/defensive-medicine-or-medical-greed-dr-turkewitz-responds.html

    But. And you knew there was going to a “but” didn’t you? The empirical data from Texas, where costs actually went up much faster than the national average despite tort “reform,” flies directly in the face of those opinions.

    Docs, it seems, will admit patients and give extra tests even when the malpractice bogeyman has been vanquished.

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  7. “In many cases the test is ordered only the doctor imagines what a hired expert would say in the absence of it.”

    You call this “defensive medicine.” I call it “differential diagnosis.” It’s a bit odd the person you’re talking about has to imagine a doctor discussing the standard of care (rather than just knowing the standard of care themselves), but, well, whatever works.

  8. “Doctors are killing thousands of people to protect themselves against malpractice claims.”

    Does anyone care to think for a second about the implications of evil that would follow if this were actually a true statement.

    Personally, and this is the irony of the debate that no one talks about, I give doctors a lot more credit than that. Most are good people who took the job to help other people. I don’t think they are so evil and petty to subject others to great risk just to make sure they don’t get him with an insured risk.

  9. @Max Kennerly@Max Kennerly – Nothing odd about it. There are many conditions that have a vanishingly small chance of occurring, but might be detected with one more test. Sore backs are usually from a muscle strain, but could be tumor on the spinal cord or maybe meningitis. So why not order a CAT scan and maybe a spinal tap? You know what the expert will say if it turns out to be a 1:1 million case.

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  12. 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)http://www.cornellpress.cornell.edu/book/?GCOI=80140100383500, 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

  13. Detroit Criminal Defense Attorney
    Dr. Gupta makes a good point about the prevalence of medical malpractice, but I think it is outrageous to state that this is due to “defensive medicine” to prevent lawsuits. Is “defensive medicine” ethical? Does this not fly in the face of conventional treatment? Once again the health profession is passing the buck and not taking responsibility for its own injustices and malpractice.

  14. Seriously this is a bunch of crap. Mistakes happen in ANY field and ANY profession. It just so happens in the medical field those mistakes can be fatal. It certainly sounded like Gupta was not shifting blame. The world is not black and white, every doctor has their own methodology and yes, I do believe a significant number of doctors order tests that may not be 100% clinically necessary either in an attempt to be thorough, defensively, or in worst cases even to increase billing. There are bad apples in every profession, yes (gasp) even PI attorneys.

    This blog entry is the equivalent of a playground “nuh-uh!” it just shows how incapable you are to see a problem from a different point of view. Admit it, while it might or might not be the root cause, doctors have been beaten with the stick for making mistakes long enough that it might take several generations to change their mindset.

    • Mistakes happen in ANY field and ANY profession.

      Yes they can. Like drivers that back out of driveways without looking. If the mistake is preventable with reasonable care, we hold such people responsible.

      This blog entry is the equivalent of a playground “nuh-uh!” it just shows how incapable you are to see a problem from a different point of view. Admit it, while it might or might not be the root cause, doctors have been beaten with the stick for making mistakes long enough that it might take several generations to change their mindset.

      The empirical data says that killing lawsuits does not decrease extra medical testing. If you want to challenge the data, have at it.

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  16. This link
    http://www.texmed.org/Template.aspx?id=5238

    seems to refute your contention that reform in Texas did not result in any benefits. Doctors per capita is a meaningless statistic if you don’t consider population growth.

    With regard to the survey results that Gupta reports “orthopedic surgeons said 24% of the tests they ordered were medically unnecessary” to what would you ascribe those tests ? That 24% of the orthopedic surgeons are crooks seeking to line their pockets ? I don’t happen to believe that there would be that much thievery in a single specialty, but who knows.

  17. Doctors per capita is a meaningless statistic if you don’t consider population growth

    Huh? Per capita analysis specifically includes population growth/reduction. That is the main purpose of doing per capita analysis. Telling someone that there are 10% more doctors in an area, for example, is meaningless without knowing if the population at large stayed the same or increased/decreased by x percent.

    With regard to the survey results that Gupta reports “orthopedic surgeons said 24% of the tests they ordered were medically unnecessary” to what would you ascribe those tests ? That 24% of the orthopedic surgeons are crooks seeking to line their pockets ? I don’t happen to believe that there would be that much thievery in a single specialty, but who knows.

    While I didn’t dwell on #1 in my posting, that being the financial interest doctors have in doing more tests, you might want to take a look at this second posting I did, based on a story that came out a couple weeks later. Those doctors may be getting pressure to do those extra tests from elsewhere — and it isn’t from the lawyers or the patients…

    http://www.newyorkpersonalinjuryattorneyblog.com/2012/08/gordon-gekko-hca-and-lawsuits-why-are-medical-costs-going-up.html

  18. I don’t see how your second post supports the argument that profits are coming from extra testing. If anything, that NYT article paints HCA profits as coming from gaming billing codes, and pressuring doctors to provide less care (turning away the indigent for example) rather than more. Perhaps I missed it, but I don’t recall seeing any mention of HCA pressuring its doctors to run endless tests on patients to crank up the bill. Rather it seems that their model is to do as little as possible while billing for what they haven’t actually done.

    Malpractice lawsuits are not some rare condition. Stories like this http://www.soroptimist.org/articles/article_obstetricians.html are not uncommon, and the idea that doctors might take precautions to avoid having their lives and careers destroyed really isn’t that unbelievable.

    http://www.pipatl.org/bibliography/hauser/malpractice.html also makes for interesting reading. They don’t mention increasing doctor income as a reason for the extra testing either.

  19. Not once did you mention the hospital make a bundle billing insurance for every test. So between the defensive medicine and hospital/insurance billing, guess who loses the most?