New York Personal Injury Law Blog » Guest Blog, Medical Malpractice, tort reform


September 29th, 2009

Defensive Medicine or Medical Greed (Dr. Turkewitz Responds)

One of my brothers is a doctor. Internist. Geriatrician. You may not have expected that given the many decades both my father and I spent prosecuting medical malpractice claims, but thems the facts.

Today he guest blogs in my humble little corner of cyberspace. He wrote this letter in response to an NPR broadcast on defensive medicine. They didn’t air his views, but I will. (My prior comments on Defensive Medicine v. Medical Greed are here, so that, if you choose, you can compare some of the intra-family views on the subject.)
By Stuart Turkewitz, M.D.

I listened with interest to your NPR interview regarding the estimated portion of health care costs attributable to malpractice expenses, and especially to the practice of defensive medicine. Both you and the host, Robert Segal, made repeated reference to unnecessary “tests and prescriptions” before arriving at a conclusion that a “very small portion” of the total health care bill results from practicing defensively.

Unfortunately, your reference to “tests and prescriptions” omits a major component of unnecessary health care expenditures: hospital admissions of older adults, and particularly adults with chronic medical problems.

I am an internist and geriatrician, and my patients occasionally go to or are sent to the emergency room, usually because a test is needed to urgently rule out a condition: a CT scan to rule out subdural hematoma, a lower extremity Doppler to rule out deep venous thrombosis, cardiac enzymes and EKG to rule out a heart attack.

Once a dangerous condition is ruled out, there is every reason not to admit an older patient to the hospital: people do best in familiar surroundings with familiar caregivers and food. The hospital subjects them to multiple new faces, irregular sleep cycles and sleep deprivation, risk of infection, and relative immobility, often precipitating a substantial decline in function.

Once in the emergency room, however, patients are confronted with physicians and other staff with every incentive to admit the patient, and little incentive to send him or her home. The infection, confusion, and insomnia that often accompany admission are at least a day or two in the future , and are not a consideration of the ER physician. On the other hand, the ER physician feels that he or she will be held to account for any misfortune that befalls the patient sent home from the ER. In addition, chronic medical problems can often look acute to physicians and staff unfamiliar with a particular patient’s “baseline.” The urge to recommend admission is overwhelming. The attending physician (that would be me), often at the other end of the phone, however skeptical of a true change in condition, is ill-prepared to argue against the physician who actually saw the patient moments earlier.

There is no question that the fear of malpractice suits influences physicians, particularly ER physicians, to admit patients unnecessarily, and I believe that the magnitude of this dwarfs the “tests and prescriptions” that you mention. This not only drives up the national health care bill enormously, but is detrimental to the health of most patients.

I believe that if the true “costs” of a hospital admission, including temporary and permanent decline in function, were truly and fairly accounted for, then it would be more evident how much the fear of lawsuits was truly costing us all.

Links to this post:

Defensive Medicine – Rob Sachs
Mr. Sachs makes a good point about defensive medicine in a recent post on his lawyer blog. Personally, I don’t think he understands what defensive medicine is, based on some of his back-handed comments. Here’s a little piece of that

posted by Shawn Vuong @ October 16, 2009 7:03 PM

Unnecessary hospital admissions cost money and can harm patients
Unnecessary hospital admissions cost money and can harm patients. When the elderly go to the emergency room, more often than not, they are admitted to the hospital. Stuart Turkewitz, a geriatrician posting at his platintiff attorney

posted by Kevin @ October 16, 2009 7:00 AM

Defensive medicine and hospital admissions
Unnecessary testing and prescribing is often the first example that comes to mind in discussions of defensive medicine, but Stuart Turkewitz, MD, explains why needless hospital admissions, especially of older adults and those with

posted by Walter Olson @ October 01, 2009 7:51 AM

7 thoughts on “Defensive Medicine or Medical Greed (Dr. Turkewitz Responds)

  1. Another major defensive cost that occurs and is not often mentioned is the use of excessive consultants. The classic is an older patient who is admitted with the flu who ends up with pulmonolgy consulted for her lungs, endocrine because she has type 2 diabetes, renal because her CR is 1.3 and so on. Can all these be managed by her PCP. Absolutely, but the first thing that happens when a primary care physicain is sued is the question, why did you not call a specialist. On top of this, we have decreased the incentive for the PCP to take care of these issues. Rather than trying to spend four hours getting everything sorted out, it is financially better to just consult someone. It is what it is.

  2. Dr Turkewitz does call attention to a high defensive cost area that I see happen too. So many admissions through the ER are now for “observation” and often the Physician admitting the patient is a covering Physician or a Hospitalist neither of course can know the patient as well as the patient’s regular Physician (or of late many patients instead have an ARNP or PA doing outpatient Primary Care). Also some ER Physicians are much more likely to call someone to admit a patient than others.
    Dr Joseph Meyer, Walla Walla, WA

  3. Another aspect of “defensive medicine” is the question of who bears the cost of medical certainty? What is the benefit of so-called ‘defensive medicine?’ For the patient, the extra test will tell you if you do or don’t have a serious condition. For the doctor, there’s medical certainty that you’ve properly diagnosed the patient |read| done no harm. Isn’t that what it’s supposed to be about? The Hippocratic oath is to ‘do no harm.’ If you’ve found the best answer that modern science can offer, isn’t that really doing no harm?

    This debate is all about how the issue is framed. The opponents of health care insurance reform are using this as a chance to limit lawsuits. Maybe instead of talking about ‘defensive medicine’ the proper label for this cost in our health care system is the cost of medical certainty. We should re-focus our debate on how much we as a society are willing to pay for proper and timely diagnosis – using the technology available to us in the US – rather than trying to make those already hurt by medical negligence bear the further cost of not having an adequate remedy in court.

    I blogged on this issue at: Defensive Medicine: Wasted Money or Medical Certainty? ( )

  4. Well, if tort reform will reduce this cost, it ought to be easy to measure. We have had tort reform in California for 3 decades, and other states for at least a decade. Is health care any cheaper there than in states without? Are the elderly admitted into the ED any less?

    Why would tort reform proponents want to rely on speculation when they can probably easily make their case with the facts if their claims are true.

  5. Speaking as a daughter of an elderly patient, I need to remind you all that it’s not just about doctors and lawyers here! Think about the patient and the patient’s family (if he/she has one).
    Perhaps the patient has been declining or is experiencing some symptoms. It’s hard enough to get out of the house and to the doctor’s office for a checkup when the patient is well, much less when he’s ill, and the family knows that doing so will weaken the patient further and expose him to other sick people when he’s particularly vulnerable. So we “wait and see” until either the symptoms or the uncertainty becomes unbearable, and then the family doctor has no choice but to recommend going to the emergency room or even preadmitting — sight unseen.
    The family is thrilled to have permission to call an ambulance (the easiest way to travel), but is well aware that a hospital stay can have more negative than positive outcomes (MRSA, confusion, weakness, scabies, to name a few from experience).
    I am sure that the ER doctor feels some pressure from the family as well (I hope so, anyway), to admit for monitoring. We have saved up dozens of questions that we should be asking the primary physician, and we expect the ER and hospital staff to give us answers on the fly, as it were. Not only that, but if the patient is not admitted, the family is responsible for transporting him home (in his weakened state — he didn’t get any stronger laying in the ER for 3-4 hours), or paying $300 or more for an elective ambulance.

    I think that medical reform must include incentives for doctors to make home visits or, even better, an in-home hospice-like plan for patients with numerous chronic conditions who are not technically “terminal.” I think a lot of illness, injury and emergency-room visits would be averted if patients in this category could be seen at home (by doctors, PAs or nurses), and could get home-visit blood draws, x-rays and other simple tests. In addition, family members would have to take less time away from work to escort the patient to doctors’ offices, and the overall burden on the family would be reduced.
    I interpret from the emergence of for-profit hospice companies that it is a profitable venture, so I expect that such an arrangement could be reasonably profitable for “pre-hospice” patients as well.

    I think one obvious way to reduce defensive hospital admissions is to keep those patients out of the ER in the first place, and that we can do this by providing patients with adequate and consistent maintenance care in their own homes.

    Thanks for reading.

  6. Dr. Turkewitz observations about unnecessary geriatric ER admissions are accurate. However, claiming the problem is caused by the ER doctor’s fear of lawsuits is nothing more than speculation. In fact the evidence suggests a fear of lawsuits is not the cause. For example, for many years in Florida, ER physicians have been immune from suit unless a plaintiff proves reckless conduct. Furthermore, pain and suffering damages are capped at $100,000.00. The restrictions make it next to impossible for a plaintiff to prevail in an ER malpractice case. Therefore the ER physicians should have no fear of lawsuits in Florida. Yet, ER physicians in Florida still admit elderly people to the hospital that would do better at home. Furthermore, there is no evidence that health insurance is cheaper in Florida after the tort reform of all medical malpractice cases occurred in 2004.