Sunday, June 6, 2010

Unneccesary Medical Tests: Tort Reform Can't Solve it All

Gastroenterologist's view of the stomach

Recently, while covering for one of my partners on a weekend, I was consulted by a physician to do a procedure. The doctor wanted his patient to undergo an EGD, which is a scope test that examines the esophagus, stomach and first portion of the small intestine called the duodenum. We gastroenterologists do this test routinely to search for an explanation for a patient’s symptoms, or to determine if these organs might be harboring a lesion that is silently bleeding.

Gastroenterologists are obligated to perform procedures for sound medical reasons. I have already confessed publicly on this blog why physicians like me have performed medical tests for the wrong reasons. The medical universe is not ideal, and neither are its players. Nevertheless, we want our care to make sense and not to waste dollars. For example, if a patient is suffering an acute headache, it would be hard to justify ordering a CAT scan of the abdomen, which would be unlikely to explain the symptom. One reason that wrong tests are done is because physicians ask colleagues for a specific procedure, and not for their cognitive advice.

For example, when we order a radiology examination, such as routine x-rays, CAT scans, MRIs, etc., we are not requesting the radiologist’s opinion on the medical issue, only that the test be performed. For ordinary readers who are on the sidelines of the medical arena, here’s how it works.

• A doctor like me decides that a patient needs a CAT scan.
• I order it.
• The radiologist does it.

Personally, I think this is a serious failing in medical practice. Radiologists have the deepest expertise in the procedures they do, yet they are not routinely consulted in advance. If they had knowledge of the particular patient, they could advise us if our intended test is the best option. Perhaps, a different radiology test would clarify the clinical issue better. Or, perhaps, we ordered the proper test, but it should be performed using special technique. In general, radiologists are not treated as true consultants, but as technicians. By doing so, clinicians like me who take care of patients are squandering an opportunity to practice better medicine. 

Of course, there are many times that physicians and radiologists do confer to optimize the diagnostic approach. But, in my experience, these important conversations are exceptional. Physicians who order imaging studies on their patients likely feel that they have enough knowledge to choose the right exam. Some do, and some don’t.

I have never liked serving as a technician gastroenterologist, but I am often asked to do so. Like every other gastroenterologist, I have performed requested procedures that were reasonable, but that I would not have personally recommended if my advice had been sought. The patient referenced at the top of this post was in a different category. This was not a 'gray area' issue.

This particular patient was having some minor rectal bleeding. He had already had the pleasure of a full colonoscopy this past November, when hemorrhoids were discovered. No additional testing was necessary for the current minor bleeding, as hemorrhoids were the likely culprit. The request for an EGD was nonsensical. The ordering physician had no economic conflict of interest in ordering the test; only the gastroenterologist would benefit financially. An EGD here was like ordering a foot x-ray on a patient with a sore throat.

I will now risk outrage from my medical colleagues by sharing a dark secret with the public. I will divulge two pieces of confidential medical code, and trust you all to protect me from vengeful physicians who will accuse me of breaking sacred medical omerta. In other words, what you read on Whistleblower, must remain here.

At the very bottom of my consultation report, I wrote: ‘will discuss with you’. This is standard medical code for, your request is nuts and I won’t put in writing what I really think. When a doctor uses this phrase, it means that a private conversation between the consulting and referring physician will soon follow. Ask your own doctor what the phrase ‘will discuss with you’ means, but be prepared for garbled gobbledygook seasoned with a dash of doublespeak.

Later that day, my partner continued the discussion with the physician and gently asked for his rationale for requesting the EGD. Here comes secret code #2. The referring physician wanted the EGD 'for completeness’. When a doctor uses this phrase, as we all have done, it means, the test makes no sense and is totally unnecessary.

So, what happened? Monday morning, the gastroenterologist who was originally consulted assumed care of the case. The EGD was done.

Fear of litigation results in overutilization of medical care. I know this personally. But, there are other reasons why we physicians pull the procedure trigger. This vignette illustrates that our profession has its own healing to do.  Tort reform can't cure it all.

While I didn’t perform the EGD, am I an accomplice by not standing up to the referring physician initially?  Can I rightfully still consider myself to be an ethical practitioner?  Radiologists don’t refuse to do CAT scans that make no clinical sense. Should the standard be different for other medical procedures, which have very low risks of complications? What would you have done here? Would you have refused the physician's request, which would likely result in the loss of this physician’s future referrals? Would you rationalize the unnecessary test knowing that if you didn’t do the EGD, that someone else would? Do private pracitioners view this scenario differently than employed physicians? Should they?

Do you have similar vignettes from your own practice or experience that you can share?


  1. This is really interesting- As a non-physician, I'm curious to see how other doctors view this issue!

  2. Where is the patient in this scenario? Is it not our professional obligation to present options to the patient? Is it the fear of loss of referrals that keeps us silent?

  3. Great Post about a common problem.

    I have seen what you describe many times. Also, as a referring Internist, I
    am most annoyed when I send a patient for a "cognitive" consultation and he
    ends up with tests that I think are unnecessary. I have actually seen the
    EGD done when the problem was lower GI and I always assumed it was scoping
    for dollars. Either way, I do believe more frank discussion between doctors
    should occur to decide what the best test is for the specific problem. "For
    Completeness" is a non-thinking man's answer for sure.

    Do you think, Dr. K., that if we practiced under Accountable care
    organizations (ACOs) where multispecialists and hospitals were paid for
    episodes of care rather than individual procedures, there might be a
    difference in these tests being done?

    Toni Brayer, MD

  4. @Ariella, welcome back to the blog. So far, you have 2 physicians who have commented. Hopefully, a few more will drop by.
    @MC, of course, you are completely correct. The patient described resides in a nursing home, and would not be able to participate personally in an informed consent discussion. I did not seek out family on my initial visit, as I thought that a conversation was needed first with the referring physician.
    @TB, thanks for your comment. I agree that a system with different incentives may serve the greater good, at the expense of various constituencies in the arena. The example that I cite here of overutilization has no financial conflict affecting the referring physician. The list of explanations for unnecessary medical testing is long. 'For completeness' is one entry on this list. Regarding paying for episodes of care, I am not certain if you are suggesting a capitated model, which has its own unique conflicts.

  5. Interesting. What one wonders, of course, is how often something like this happens: weekly? monthly? quarterly? annually?

    If it's often it indicates some serious corruption within the medical profession, it seems to me, a kind of invasive dishonesty that will only get worse over time if unchecked.

  6. "Tort reform can't cure it all."

    In fact, tort reform has not been shown to have ANY discernible effect on the frequency of testing despite decades of such "reform". It has been shown to improve the bottom lines of insurers, however.

    And Dr. Kirsch has alleged it "helped" in Ohio, but he's yet to explain how it helped or who was helped.

  7. In hematology there's an analogous situation - when a patient is referred for a diagnostic bone marrow aspiration and biopsy. Sometimes, but not always, the need for bone marrow studies is obviated by close inspection of the peripheral blood smear and other forms of examination. Sometimes even a detailed history and physical can eliminate the need for the procedure.

  8. Great read indeed!

    I think your idea of "cognitive review" from specialist is great! I think it would make sense if the standard procedure for requesting specialty diagnostics goes like this...

    Internist or even an Ob/Gyn doc believes a patient needs a CAT scan.
    The request will say "Requesting an ABD CAT Scan to rule out Bilateral Tubovarian Abscess. Please conduct a Cognitive Review prior to determining if an ABD CAT Scan is the most appropriate Diagnostic Procedure."

    Perhaps those thoughts are too Eutopian?

    3rd year med student on clerkships in Philly

  9. @LG, while there is corruption in the profession, this is not germane to the case in this post. I am addressing medical competence and ethics, not corruption.

    @anonymous, tort reform in Ohio has helped enormously, even though that I have commented repeatedly that I do not feel that 'caps' are ideal. Nevertheless, tort reform here has lowered our premiums, stopped the hemorrhaging of medical talent leaving the state and reduced the volume of medical malpractice cases, most of which never result in a victory for the plaintiff.

    @ES, analogy noted, but I doubt you are under the same pressure as GI physicians. Primary care folks, I think, expect more cognitive input from hematologists than they do from us.

    @Anar, thanks for the comment. Keep in mind that under the present system that radiologists have a financial conflict of interest that may influence their recommendations. My specialty faces similar conflicts.

  10. I wonder if one factor involved in the radiologist failing to say "no" or "not indicated" to common radiologic procedures is the inability to have a full history or physical exam or time to read full reports or communicate directly with the patient. Nevertheless, certainly a "cognitive consultation" in some form between the radiologist to the requesting physician would be most appropriate act. ..Maurice.

  11. ". Nevertheless, tort reform here has lowered our premiums, stopped the hemorrhaging of medical talent leaving the state and reduced the volume of medical malpractice cases, most of which never result in a victory for the plaintiff."

    Dr. Kirsch, can you point us to where we can find support for any of these claims. For example, rates have fallen (and risen) in both capped and noncapped states pretty much in lockstep with the economy. So can you show us where Ohio rates have declined more than in a similar state without caps?

    Can you also tell us how reducing the volume of medical malpractice cases has anything to do with merit of the case? Or improvements in medical quality? Or is a boon to anyone besides insurers? BTW, Ohio at its peak had around 600 paid claims in 2003. Out of nearly 40,000 physicians.

    Also, you claim it has stopped the bleeding of Ohio physicians? In 2008, Ohio had 38,556 nonfederal physicians. The number in 2003, at the height of the "crisis"? Just shy of 34,000. Rate of increase has been steady over the last decade, both pre and post-"reform". In fact, it's even declined a bit since "reform".

    But of course, you've still not explained how caps achieve any of your stated goals. However, it's quite clear you support the insurers' goals.

  12. Here is a link regarding some statistics on Ohio's medical malpractice history. This is from an Ohio physician medical society, so you can feel free to challenge its credibility. I cannot prepare a dissertation on this issue, as I am trying to earn a living today. I would be interested if you know, or can find out, what fraction of physicians who are sued end up paying a settlement or having a court judgement against them. I assume it is a very small percentage, but would appreciate 'hard data', if you can provide it. I thank you for contributing to this blog.

  13. No, those stats are right on. There's no doubt the number of claims and payouts have gone down. Even putting aside the fact that obviously the claims will go up significantly immediately before the law goes in effect. However, I don't know that it's evidence that the law is good for injured parties or the public in general. It is evident that it's more difficult to pursue a case in Ohio or get the full measure of damages, regardless of the merit of the case. That's certainly good for insurers, which is after all the point.

    Your claimed benefit to the public doesn't seem all that evident. Healthcare is no cheaper, defensive medicine is no less prevalent, and Ohio doesn't seem to have a big jump in physicians. Which is consistent with most "reform" efforts by physicians and their insurers. In fact, if one looks at the rankings by state of physicians per capita, one will see the one driver of that is the wealth of the state. Rural, poor states have fewer physicians per capita than wealthier urban ones, regardless of caps.

    You don't need to prepare a dissertation. The facts are clear, and undisputed. You can verify the physicians per capita from multiple unbiased sources, and likewise with the state income. You'll see the same trend if you dig down to the county/parish level as well.

    As to your question, only the insurer will have that. They will release some information, but now raw. Although, if a small fraction do pay post suit, and you believe most claims are without merit, that would seem to be evidence that the process to weed out meritorious claims is working quite well.

  14. Hello Dr. Kirsch,

    I'm Kate Wharmby Seldman, the Health and Entertainment Editor at Opposing Views ( Sorry to spam your comments, but I couldn't find a contact email anywhere on your site.

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    Kate Wharmby Seldman
    Health and Entertainment Editor
    Opposing Views
    Los Angeles, CA

  15. Dr. Kirsch, here's a link for you.

    After evaluating the success of existing efforts and consulting with a seven-member panel of diverse stakeholders, the initiative announced the availability of $20 million in development grants and planning grants “to states and health care system” and yesterday, on a conference call with reporters, the group unveiled some of the applications they received and the projects that would be funded.

    More at the link.

  16. Thanks for the link, John. The Obama folks want to 'study' tort reform. We all know what that means.

  17. The Office of Patient Safety and Health Care Quality would conduct three studies:

    1.)an analysis of the patient-safety data from its new database and other sources to determine performance and systems standards, as well as safety tools and best practices for health care providers;

    2.)an analysis of the medical liability insurance market to determine historical and current legal costs related to medical liability, factors leading to increased legal costs, and which, if any, state liability insurance reforms have led to stabilization or reduction in medical liability premiums; and

    3.)a database study of cases that were not successfully negotiated through the new program, to determine the reasons, trends, and effects of such outcomes.

    Found at this New England Journal of Medicine link.

    I presume you consider all this a waste of time and resources.

  18. John, here is an excerpt from the New England Journal link you kindly provided:

    "To improve both patient safety and the medical liability climate, the tort system must achieve four goals: reduce the rates of preventable patient injuries, promote open communication between physicians and patients, ensure patients access to fair compensation for legitimate medical injuries, and reduce liability insurance premiums for health care providers."

    I don't think that the current medical liability system succeeds on any of these measures.

  19. Agreed.
    My reading of the link indicates those results are the stated aim of the proposal.

    Under our proposal, physicians would be given certain protections from liability

    And later...A number of hospital systems and liability insurance providers have already adopted a policy of robust disclosure of medical errors. These programs have been successful in reducing administrative and legal costs for providers, insurers, and hospitals. Surveys also show greater trust in and satisfaction with health care providers on the part of patients. Ultimately, through these programs, disclosure of medical errors has resulted in the filing of fewer malpractice suits, a reduction in litigation costs, accelerated provision of compensation to patients, and increases in the numbers of patients who are compensated for their injuries.

    The intent is to quantify and standardize practices already shown to work. Providers following best practices enshrined in legally protective language are protected. And those that fail to do so remain properly liable.
    What am I missing?

  20. I absolutely agree that medical errors be disclosed promptly, independent of the legal ramifications of this action. Disclosure is an ethical obligation the medical profession. That this might lessen a patient and family's desire to sue, is an indication of the rapport between the physician and the patient. This likely depends upon the seriousness and long term consequences of the error. Mistakes that go away are easy to forgive and forget.

  21. "I don't think that the current medical liability system succeeds on any of these measures"

    Nor do any of the "reforms" proposed by you, and backed by your liability carriers, change that. Which makes your crocodile tears for "meaningful reform" obvious.

  22. ""To improve both patient safety and the medical liability climate, the tort system must achieve four goals: reduce the rates of preventable patient injuries, promote open communication between physicians and patients, ensure patients access to fair compensation for legitimate medical injuries, and reduce liability insurance premiums for health care providers.""

    In other words, you are criticizing a process designed to determine liability and damages for not doing a bunch of things it was never designed to do. Other than give patients an opportunity to get compensated.

    One could just as easily criticize the delivery of medical services by physicians for failing to accomplish those same things. Oddly though, physicians don't want to reform themselves, but the legal system. Even though they have a limited understanding of it.

  23. The four goals of tort reform that we both referenced in our above comments are not my goals, but are from a recent New England Journal of Medicine article (reference appears in an above comment.) I maintain that the goals are reasonable and relevant. You state that the tort system is only designed to compensate injured patients. I have heard plaintiff lawyers repeatedly argue that the current liability system serves as a deterrent against marginal medical care,, in addition to compensating victims. While I don't agree with this argument, it is out there. In addition, the med mal system directly affects doctor-patient communication, so this 'goal' is quite relevant to the issue also. I also suggest that physicians have more than a limited understanding of the legal system.

  24. " I maintain that the goals are reasonable and relevant. "

    They are - for medicine.

    "While I don't agree with this argument, it is out there. "

    I agree there are those who would advance it. And it might have merit in those rare, rare cases where a physician would be inclined to act while drunk, for example. But at that point, judgment isn't really one's strong suit.

    "In addition, the med mal system directly affects doctor-patient communication."

    How so?

    "I also suggest that physicians have more than a limited understanding of the legal system."

    So why are they always trying to "reform" it to favor their liability carriers if they have such a limited understanding?

  25. "In addition, the med mal system directly affects doctor-patient communication.

    How so?"

    When a physician discusses diagnostic testing options for defensive medical purposes, this directly affects communication and the doctor-pt relationship.

    "So why are they[physicians] always trying to "reform" [med mal system] it to favor their liability carriers if they have such a limited understanding?"

    We are not motivated to help insurance companies. We are seeking to avoid becoming defendants when we shouldn't be.

  26. "When a physician discusses diagnostic testing options for defensive medical purposes"

    So it's a bad thing the consumer has more choice? You guys talk about defensive medicine ad nauseum, but the thing is 1) you don't know if it actually defends you, and 2) you say we need to enact your caps so it will lessen but it never has worked. Can you tell me why in the world we're still talking about it?

    " We are seeking to avoid becoming defendants when we shouldn't be."

    So how do your caps help that? Other than indiscriminately limiting the value of all cases regardless of merit?

  27. Mike - interesting post - very well written!

    I see it both ways. Sometimes I have called for an echocardiogram and the cardiologist has gotten all uptight about why I wanted it. The truth is that unless the cardiologist is particularly trained in cardiac disease in pregnancy, its not that likely that I want his deep opinion on the topic - I'll get that from a maternal fetal medicine doctor. As such, when academic cardiologists consider themselves the guardians of the echo machine it drives me a bit nuts.

    On the other hand, your points on radiologists are spot on. Talking to radiologists ahead of scans is very helpful. This is not only for determining what study to order, but also to help with the interpretation. I review the images on every study I order, in most cases face to face with the radiologist. I find I get much better reads that way, and in some cases have given the radiologist information that led them to a interpretation they would have missed without that information.

  28. Nick, thanks for dropping by. I'm sure that radiologists regularly talk amongst themselves about silly tests that the rest of us order. Regarding your cardiac echo anecdote, the cardiologist may be pushing back against a deluge of inappropriate use, which does not apply to you.

  29. It's always interesting when "defensive" medicine is tossed about as proof of the need for tort reform. Not just because the "reform" has never been shown to reduce it, though. But because it's becoming more and more clear from actual studies rather than anecdotes that what drives testing is money, not liability concerns.

    Take for example:

    "The Medicare Prescription Drug, Improvement, and Modernization Act, enacted in 2003, substantially reduced payment rates for chemotherapy drugs administered on an outpatient basis starting in January 2005. We assessed how these reductions affected the likelihood and setting of chemotherapy treatment for Medicare beneficiaries with newly diagnosed lung cancer, as well as the types of agents they received. Contrary to concerns about access, we found that the changes actually increased the likelihood that lung cancer patients received chemotherapy. The type of chemotherapy agents administered also changed. Physicians switched from dispensing the drugs that experienced the largest cuts in profitability, carboplatin and paclitaxel, to other high-margin drugs, like docetaxel. We do not know what the effect was on cancer patients, but these changes may have offset some of the savings projected from passage of the legislation."

  30. @anonymous, I completely agree that money is a force that drives overutilization. The medical liabily system is another force that pushes care in the same direction. Any force or influence that generates unnecessary medical care should be targeted.

  31. Your solutions for the liability system haven't changed the overutilization problem. So either your solutions stink and we should quit trying them OR it's not a driver after all.

  32. Eric Tippmann, PhDJuly 22, 2010 at 9:24 AM

    I commend your courage and your ability to "risk the outrage". You are obviously trying to do the right thing, in a sincere manner, and this may well inspire others to have the courage to be whistleblowers, even if they are not necessarily in your profession. Keep it up!
    Eric Tippmann

  33. highly technical. glad that there are physicians commented on this page they should have helped you.

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