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Guarding Against Medical Malpractice: Focusing On The Possible Versus The Probable

Some put the figure for defensive medicine at 10% of medical expenses a year.  That’s $250 billion dollars.  Others claim it to be 2-3% per year or about $60 billion dollars a year.

Now ask any physician what it is.  I’d say it’s closer to 30% a year.  That’s $750 billion dollars a year.  Why?  Because I know what is going through the minds of physicians when they put the pen to the paper.  In America, we strive to exclude  the long tail diagnosis.  Why? Because getting sued for 67 million dollars because you treated a torn aorta when all the evidence pointed to an emergent MI has a way of making doctors evaluate the possible, instead of focusing on the probable.

Defensive medicine is not about losing a lawsuit.  It’s about getting sued and the lack of boundaries that protect a physician from having bad outcomes with competent medicine, even if that competent medicine was the wrong medicine for the wrong patient at the wrong time, a fact known only after the fact when a bad outcome occurs.

Getting sued because you failed to diagnose a condition that a doctor paid $500 an hour to get on the stand says you should have is why physicians defend themselves against the probable by spending 30% of America’s health care resources.  Standard of care is a sham process.  The standard is what ever the physician community says it is.  If every physician practices defensive medicine in your community, despite what the medical evidence says is good medicine, the standard is the threshold.

There isn’t a book of answers to clinical medicine.  There is experience and education learned through years of intense education.  There is a certification as competent by the board of the respective physician’s area of specialty.

And yet, none of that is enough to protect the physician from a bad outcome because they missed the possible, while focusing on the probable.  Getting sued because every MI might be a torn aorta is why only those who practice medicine truly know the true cost of their daily actions.

When I order a CT angiogram on a patient with post operative hypoxemia, rapid atrial fibrillation with a new onset right bundle branch block in the setting of  an active and ongoing history of decompensated heart failure with bilateral effusions, is this good medicine to rule out pulmonary embolism or is it defensive medicine. Is a pulmonary embolism possible?  Sure it is.  So is a ruptured ventrcular aneurysm.  So is a large pericardial effusion.  So is ARDS.  So is septic shock.

At what point do physicians stop ordering tests to evaluate the possible, and start treating the probable?  That’s the 2.5 trillion dollar question.  As physicians, our diagnostic process is driven by the differential diagnosis, which is built upon our history and physical findings.  We should order our laboratory and xray studies and need for consultative services based on the most likely cause.  However, ask any physician, and you will find that this is not usually the case.  Rarely will a patient get only what they need to make the diagnosis.  They get far more than is necessary.  You can call it good medicine.  I call it fear.

If I was given complete immunity from failing to diagnose a pulmonary embolism when the data pointed to heart failure, I would not order the CT.  I could make a probable estimation, based on my clincal experience and education that this was not likely a pulmonary embolism.  Could I guarantee it?  Of course not.  I asked a partner of mine if they would order the CT without immunity.  Yes.  Would they order it with immunity.  Same conclusion.

Would I feel bad if I missed a pulmonary embolism?  Of course I would.  Would I consider it negligent?  Of course not.  As a patient living in American medicine, the treatment of failure to diagnose as negligence drives decision making. I know that trying to practice medicine in the possible zone instead of the probable zone will continue to bankrupt our country and make any ability to fund future liabilities impossible.  Until legal protection from failure to diagnose are put into place, nothing will change in resource utilization..  Resource utilization that tries to protect oneself from  67 million dollar lawsuits.

Some choose to believe that defensive medicine is a rather small portion of our cost.  I can tell you the aswer is much greater than 2%.  It’s much greater than 10%.  It is what defines American medicine as unique from all other countries of this world.  And it’s driven by fear of the unknown.

*This blog post was originally published at A Happy Hospitalist*


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