A Misinformed Doctor Misguides People About the Causes of Malpractice

by Patrick Malone & Associates P.C. | DC Injury Lawyers
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We like the often informative, always entertaining medical blog KevinMd.com. Regular readers of this blog know that we often link to KevinMd because we want people to have good information.

Unfortunately, that’s not what one of its guest bloggers recently offered. A post called “Cause of death: Defensive medicine” promulgated tired and inaccurate information that serves only to mislead people seeking the truth about medical errors and how to pay for them. That the post was written anonymously, by “BirdStrike, MD,” makes us wonder why, if the information is true and verifiable, the writer doesn’t have the conviction to sign his /her real name.

“BirdStrike” describes four patients who died from different medical errors, but which “BirdStrike” ascribes to doctors practicing so-called “defensive medicine,” otherwise known as overtreating in order to prevent being sued for malpractice.

In the first case, a woman, 40, went to her family physician for heartburn relief after eating hot peppers she believed had given her burning chest pain. Her doctor didn’t believe she had a heart problem, but sent her to the ER anyway. The hospital cardiologist did not believe she was having a heart attack, but she was admitted to the hospital anyway for “nonspecific” EKG changes. Her stress test results were “equivocal.” The cardiologist, in a gross example of overtesting, performed a coronary catheterization, a risky, invasive procedure that perforated an artery in her heart. She died.

Case No. 2 involved a 33-year-old dentist who had fallen and bumped his head when he was 13. At the time, he never lost consciousness, had a normal neurologic exam and no confusion, nausea or vomiting. Still, in a gross example of overtesting, the ER doctor ordered a CT scan, which “BirdStrike” claimed caused brain radiation damage that, 20 years later, developed into an untreatable glioma (brain cancer). “BirdStrike” said the unnecessary, risky CT scan was the result of “a very rational fear of being sued.”

Twenty years later, the patient died in a hospice ward. The diagnosis was stage IV glioma, but “Birdstrike” called the true cause of death defensive medicine.

Case No. 3 was a 7-year-old boy with a sore throat. The screen and culture were negative for strep. His doctor, BirdStrike claimed, was spooked by a previous case in which a girl’s negative strep test had caused her doctor to conclude she didn’t need antibiotics. But, as sometimes happens, she did have strep, and when it went untreated, she developed rheumatic fever. Her rare and terrible complications led the boy’s doctor to prescribe antibiotics just in case. They did nothing for his throat problem, but they did kill off his healthy bacteria and promoted resistance to other microbes that infected his ingrown toe nail. That led to sepsis (bacterial infection in the bloodstream), and death.

The diagnosis was sepsis from multiple drug-resistant organisms, but “Birdstrike” called true cause of death defensive medicine.

Case No. 4 was a 16-year-old girl with abdominal pain. Although her symptoms were not those of appendicitis, and her doctor didn’t believe that was her problem, he prescribed a CT scan anyway because he thought a jury of lay people—who don’t understand the subtleties of the medical art—might conclude, in the event of a problem, that her symptoms should have been more thoroughly analyzed. The teenager had an anaphylactic (allergic) reaction to the dye used for contrast in the unnecessary CT scan, and she died.

“Like one of Pavlov’s dogs,” “BirdStrike wrote, “[the doctor] did what he was trained to do, not by his physician teachers, not by his medical textbooks, but by lawsuit verdicts.” The official cause of death was enteritis (inflammation of the intestine) and reaction to intravenous dye, but “BirdStrike” called the true cause of death was defensive medicine.

Even though the teenager in the last case was overtreated, her death probably would never have been the subject of a lawsuit—medical and legal professionals know that certain allergic responses can’t be known. But in each of these cases, “BirdStrike" said that the doctors’ rational fear of being sued had compromised their ability to practice good medicine.

“Defensive medicine doesn’t just cost our society a lot of money,” he/she wrote. “It can also cost our patients their lives.”

That part he/she got right. But defensive medicine patently isn’t the result of litigation, or the fear of it. As we recently reported in our post “A Factual Appraisal of Medical Malpractice,” a new medical malpractice briefing book published by the Center for Justice & Democracy (CJ&D) shows how wrong that argument is. Defensive medicine causes lawsuits, it isn’t practiced because of them.

As the CJ&D points out, a small number of doctors are responsible for most malpractice payouts; even the most incompetent physicians are rarely held accountable by state medical boards, and physicians greatly misperceive their risk of being sued. In addition, successful plaintiffs receive far less than most people think, high verdicts are almost always slashed and punitive damages are extremely rare.

The briefing book also describes how infrequently major errors are reported. Recent studies have supported this—see our post “Why Don’t Patients Report the Harm Caused by Medical Errors?” In fact, patient safety suffers because so few injured patients sue. According to the CJ&D, litigation improves patient safety, and fear of litigation is not primarily why doctors fail to report errors

If the fear of being sued were real, physicians would see that reflected in their malpractice insurance premiums. Guess what? They’ve declined since 2006, as the CJ&D showed. Even caps on medical malpractice verdicts—a terrible practice that deprives harmed patients of rightful redress and excuses the people who made the mistakes from paying for them—don’t lower insurance premiums; only strong regulatory laws can do that for doctors and hospitals.

As far as the financial cost of overtreating, several studies noted by the CJ&D have debunked the notion that health-care costs can be cut in big ways by depriving patients of their legal rights. The real reason most doctors order too many tests is because they profit from them, not because they’re afraid of being accused of missing something.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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