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Can You Sue a Physician for Defensive Medicine Practices?

Written by Berkowitz

Physician with a Medical Chart

Connecticut Malpractice Attorneys Serving Victims of Defensive Medical Practices

There is a new issue emerging in modern medicine known as defensive medicine. While the term “defensive” might make patients think that their physicians are defending them against harm, defensive medicine is often unnecessary and can cause more harm than good.

Those subjected to defensive medical practices may have a claim of malpractice against that healthcare provider, especially if the provider’s defensive practices cause injury or lead to further suffering.

What is Defensive Medicine?

Defensive medicine, also referred to as defensive medical decision-making, is when a physician will recommend or perform diagnostic tests and treatments that are not medically necessary for the patient, but rather work to protect the physician against any lawsuit from the patient for a misdiagnosis or error.

Defensive medicine is often considered a reaction to the rising costs of medical malpractice insurance premiums plaguing hospital providers and physicians. While the number of lawsuits have increased against doctors over the past few years, this is not attributed to greedy patients, and most of the cases are more than justified.

The Context Behind Defensive Medicine

There is a myth out there that defensive medicine is okay and is a reasonable defense against malpractice. The medical industry is now lobbying for privileges under tort reform. They talk about how juries will award plaintiffs millions for their malpractice lawsuit. Without the reform, medical professionals feel that healthcare costs will only continue to rise, and then doctors will be forced to engage in defensive medicine practices to protect themselves from risk.

However, this is not the true reality of the situation. Well medical industry lobbyists want to say that physicians and hospitals are the victims, they tend to overlook the biggest reason for healthcare and medical malpractice insurance costs rising: Errors are harming patients.

Medical malpractice lawsuits are not the reason why healthcare costs are being driven upward and physicians are performing defensive medicine. While doctors are more defensive because they do not want to create an error, the fact is that malpractice lawsuits are a form of regulation on an industry that does not necessarily police itself or protect patients’ best interests.

When a doctor misdiagnoses a patient because he or she is too busy to order tests, or he or she just assumes or treats, how does that benefit the patient? When a physician leaves a surgical instrument in a patient, and then he or she suffers from an agonizing infection, that should not be a pain or cost that the patient shoulders.

While to err is human, and physicians are human, they are held to a higher standard. Patients put their trust and their lives in physicians’ hands; therefore, doctors must respect that trust and take care of their patients in return.

How Physicians Perform Defensive Medicine

There is no exact definition of what constitutes cautious practice and defensive medicine. However, the basic premise is that physicians will order unnecessary tests and perform procedures that are not necessary because they are afraid that they will be sued. Doctors are supposed to make treatment decisions based on the medical needs of their patients – not out of their own self-interest.

For example, an emergency room doctor may order a CT scan as well as an MRI scan to be as thorough as possible. However, he or she could have diagnosed the patient by using just one scan and reviewing the lab work. Out of fear of being sued, however, that physician ordered a costly and unnecessary additional test to avoid being sued if a different problem was found later.

These tests cost the patient’s insurance thousands of dollars. Therefore, the argument against defensive medicine is that ordering unnecessary tests are causing increased healthcare spending, but are not increasing the quality of care that patients receive.

Medical lobbyists want to eliminate or reduce defensive medicine by raising the bar for medical malpractice suits in the future, which further takes away the rights of patients.

Below are more facts about defensive medicine. As a consumer of healthcare services and as a patient of any physician, you owe it to yourself and your loved ones to be wary of defensive medicine practices.

Fact 1: Defensive Medicine is Negligent and Criminal

Defensive medicine is wrong, and physicians often use it as an excuse for financial incentives to order tests that are not needed out of a legitimate fear of being sued. Defensive medicine is also highly unethical for the patient. It is a waste of the patient’s time, his or her health insurance benefits, and hospital resources. Defensive medicine is also illegal. Physicians and hospitals that deal with Medicare, which is the largest government healthcare payer, have rules that state that a provider cannot seek reimbursement for any procedure or test that is not reasonable or necessary for proper diagnosis or treatment. Therefore, a physician who orders unnecessary tests and procedures, and then sends that bill to Medicare, has just committed a crime.

Fact 2: Defensive Medicine Profits the Physician and Hospital, Too

Defensive medicine profits the physicians, and the hospitals that allow their physicians to perform it. After all, physicians work on a fee-for-service basis for reimbursement from insurers, which means that they have no incentive to keep costs down for their patients.

So, each time a physician orders an unnecessary test or tries a procedure that is unnecessary for the patient, he or she is still earning money. While physicians can say that they did so to avoid being sued, the fact remains that they profit from those extra tests.

Fact 3: Defensive Medicine Exposes Patients to Unnecessary Risks

All tests and procedures carry a risk to the patient. The risks for a treatment that is medically necessary for the patient will not outweigh the benefits. However, a treatment that is medically unnecessary and that will not benefit the patient exposes him or her to risks without any possible rewards.

Some physicians will undergo defensive procedures on high-risk patients, but those high-risk patients are also being exposed to more risks. For example, subjecting a woman in a high-risk pregnancy to multiple and unnecessary procedures could increase her chances of pre-term labor or miscarriage. While the physician may have ordered those procedures to avoid being sued, he or she also exposed the patient to risks that caused injury anyway.

Fact 4: Defensive Medicine Exposes the Patient to Pain and Discomfort

Some of the tests and procedures to which patients are unnecessarily exposed are uncomfortable, painful, and could even leave a patient suffering for days. For example, if a physician orders a biopsy that is known to be unnecessary, but is done to confirm a diagnosis that the patient already has, then the patient now has the pain of a biopsy for several days – and that pain was wholly unnecessary.

Consider another example: A physician chooses to remove a spot on the patient that is already known to be benign, as the previous tests proved that it was. However, using defensive practices, the physician chooses to remove the spot, which requires the patient to have stitches, miss several days from work, and even take pain medications to manage the discomfort of an entirely unnecessary procedure.

Fact 5: Most Patients Are Unaware that Symptoms Are the Result of Defensive Medicine

Unfortunately, most patients will never know that they are being subjected to defensive medicine.  When a patient has multiple tests run, the physician may not tell him or her that the tests are not medically necessary. The physician may also neglect to warn the patient of the risks associated with a procedure. When patients are unaware that they are undergoing unnecessary treatments or tests, they endure the pain, suffering, and costs without realizing they are being taken advantage of.

Result: Defensive Medicine is Negligent Medicine

Bottom line, defensive medicine has no place in modern medicine. Physicians do not have the right to cost the patient or his or her insurance company thousands of dollars in unnecessary testing and treatments. The patient also does not deserve the discomfort, risks, or time away from work for these costly, time-consuming tests and treatments.

Do You Suspect that You Are the Victim of Defensive Medicine?

If you suspect that you are the victim of defensive medicine, it is in your best interest to contact a medical malpractice attorney who will request your medical records and have a medical expert review them. The medical expert often works in a similar practice as the physician whom you have accused of defensive medicine. This allows the expert to give a more accurate analysis.

If the medical expert determines that tests or procedures were unnecessary, a malpractice lawyer may be able to seek compensation against that physician for unnecessary testing, medical negligence, and the patient’s pain and suffering.

To have your own medical case assessed, contact the attorneys at Berkowitz and Hanna LLC. Our medical malpractice lawyers hold physicians responsible for their actions. We do not give into the myths that it is acceptable to subject someone to tests and procedures for self-interest, and we do not allow our clients to be bullied by hospitals that try to defend unnecessary procedures.

If you feel that you are a victim of malpractice, let our attorneys be your advocates. Contact Berkowitz and Hanna LLC today to schedule a no-obligation case evaluation. Call 866-479-7909 or contact us online to get started.