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Lawsuit fear drives physicians to order costly patient tests

Kathleen Blanchard's picture
Physicians often order expensive diagnostic tests defensively.

A Pennsylvania study shows 35 percent of costly patients tests were ordered by physicians from fear of lawsuit.

Surprisingly, physicians spending 15 or more years in practice were found to be most likely to practice defensive medicine by ordering tests that patients may not even need.

The study is the first believed to show orthopedic physicians order costly imaging tests because they’re practicing defensive medicine, even though the tests may be of no benefit to the patient.

In the past, doctors surveyed answered yes or no when asked if they do such a thing. The finding is the first prospective study that actually measures the practice of defensive medicine.

John Flynn MD, Associate Chief of Orthopaedic Surgery at Children's Hospital of Philadelphia, said, "Patients are sometimes put through tests that maybe otherwise would not be ordered”, but it’s out of fear of lawsuit.

One of the problems is lawyers frequently ask on behalf of plaintiffs why certain tests weren’t ordered when a patient has a bad outcome, that may be "…the driving force of so much of the defensive test ordering."

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The study included 72 surgeons, who are members of the Pennsylvania Orthopaedic Society, who voluntarily participated in this study. The findings showed 19 percent of diagnostic imaging tests were performed from fear of lawsuit, accounting for $113,369 of $325,309 Medicare dollars spent. The most common test ordered was an expensive MRI.

Flynn also says he was surprised to find it was older orthopedic surgeons who ordered tests that might not be necessary. Those most likely to practice defensively were doctors who had been in practice for more than 15 years.

"This was counterintuitive," he says. "I thought that young doctors would come out of medical school immediately after training, be less confident because they weren't experienced, and order more defensive tests. Then, as they become more comfortable and confident after 10 or 20 years in practice, they would order many fewer tests."

He says it may be that over time, physicians get more worried about lawsuits, and cites a 2005 study that found 93 percent of 824 physicians in Pennsylvania admitted to practicing defensive medicine.

The next step is to get a national representation of physicians. Flynn says, …”if you had doctors from multiple specialties — from OB/Gyn to Neurosurgery to Emergency Medicine — do this type of practice audit, you could accurately quantify how much of our nation's healthcare resources are wasted on defensive medicine."

Orthopedic surgeons in Pennsylvania are likely not the only group of practicing physicians who fear lawsuit and cover their bases by ordering costly, and maybe even useless, diagnostic patient tests. The authors point out 37 percent of medical lawsuit claims are bad outcomes rather than negligence or error.