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Defensive or Defendant?

By Jock Hoffman, CRICO

Related to: Ambulatory, Diagnosis, Emergency Medicine, Primary Care, Obstetrics, Other Specialties, Surgery

The impact of “defensive medicine,” especially extraneous diagnostic testing, has found purchase in recent health care reform debates. Speculation about the amount of defensive testing ranges from almost none [pdf] to 80%. Understandably, the focus is on the cost of tests that are ordered, purportedly, to avoid a malpractice lawsuit. Ironically, however, it’s not physicians who order the most tests who are most likely to avoid malpractice suits, it’s the physicians who order the most appropriate test(s)—and then manage them systematically.

Since 2004, 287 (23 percent) of CRICO’s malpractice claims involved an unordered test. But even when tests or imagings are ordered, a failure to properly manage those tests is another common factor in malpractice claims. Over the same time period, 18 percent of CRICO’s cases (N=225) involved issues related to patient compliance with an ordered test—or with the interpretation, receipt, or transmission of the tests results. The average incurred loss for this set of “mismanaged” tests ($868,000) exceeds the average loss for claims in which appropriate testing was omitted or delayed ($830,000). In a related issue for physicians ordering “defensive” tests, missed diagnoses linked to incidental findings from ordered tests not having been adequately addressed accounted for 35 CRICO cases over the same time frame.

The clinical risks and benefits of defensive test ordering is fodder for both sides of the aisle. Evidence-based guidelines have strong support within the medical community. Patients, of course, often want (demand) whatever tests are available. Health insurers advocate for restraint but reimburse for what’s been established as the standard of care. Physicians may sense some liability risk in all options.

Certainly, a physician ordering tests or images in a perfunctory fashion—one who doesn’t expect to learn anything new about the patient’s status—presents a higher risk of failing to follow up than when those tests are prompted by uncertainty. And, if he or she fails to inform the patient, or discuss the reason for the testing, then the patient is unable to share the responsibility for compliance and follow-up.

Once any test or imaging has been ordered, the best defense is a good offense. A test order is also a commitment to follow up. Physicians with systems in place to confirm patient compliance and ensure results are received, reviewed, and shared with the patient, lower their risk of missing an unexpected finding and delaying an accurate diagnosis or treatment.


September 1, 2009
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