The ACR Resident and Fellow Section

Hot Topics: Defensive Medicine: Implications for Radiology
Daniel W. Entrikin, MD

The views that the author expresses in this article are strictly their own and should not be attributed to the American College of Radiology.

We've all experienced it. In fact, it's likely that many of you reading this article are guilty of practicing it at one time or another in your career. I'm referring to the practice of "defensive medicine." Defensive medicine may be defined as medical practice that involves supplementary tests, procedures, visits, or other behaviors (including avoidance of certain high-risk patients) in an effort by the health care provider to avert potential liability. These practices are not for the benefit of the patient, have the potential to be harmful to the patient, and are a major factor in the continued rise in health care costs in this country.

We've all encountered imaging studies that were borne of an act of defensive medicine. Perhaps the most egregious example that I can personally remember occurred during my first year of call, when in one evening I read two uninfused head CTs on the same patient. This patient was initially brought to the Emergency Department (ED) after being "found down." Though the patient was clearly intoxicated, and had no outward signs of trauma, the ED physician scanned his head to "exclude acute neurological findings" as the physical examination of the patient was "unreliable." Not only was the initial scan negative, but in reviewing the patient's records, I learned that this was now his eighth normal head scan in the past two months, with each of his seven prior visits characterized by a nearly identical presentation and work-up. Four hours later I was surprised to see yet another head CT on the same patient, and even more surprised that the same ED physician ordered the scan when the patient was again "found down," smelled of alcohol, and had no signs of trauma. Though it was clear to me that the patient left the hospital, got drunk again and laid down to sleep it off, this rationale was not sufficient for the ED physician who again felt inclined to exclude the highly unlikely. As with the prior eight head scans from the past two months, this repeat scan was negative. More disturbing than the fact that this actually occurred, is that this ED physician saw no problem with his medical decision making process. The latest head scan I saw on this patient now shows radiation necrosis in the brain and bilateral cataracts. Of course I'm joking, but I suspect that each of you have seen the tenth normal head scan on a small child with a history of seizure disorder, and one must wonder what long-term effects this pattern of medical care will have on these patients over the course of their lifetime. In fact, a recent study from Swedish researchers found that doses of ionizing radiation to the brain used in the treatment of cutaneous hemangiomas in infants less than 18 months, which are doses similar to those observed with many diagnostic head CTs, result in a significant decline in intellectual development negatively influencing cognitive abilities in adulthood¹.

Not all outcomes from the practice of defensive medicine are bad.

Indeed, I recently saw a case where the protracted work-up of a young woman's abdominal/flank pain by an ED physician led to an unexpected diagnosis that may result in a positive outcome. While awaiting results of a urinalysis, which clearly indicated a diagnosis of pyelonephritis as the cause of the patient's symptoms, the ED physician ordered an unenhanced CT of the abdomen and pelvis to exclude urinary tract calculi. This CT found no stones, but it did reveal the presence of a left ovarian dermoid. Despite no clinical signs and symptoms referable to this dermoid, and a highly plausible clinical diagnosis of pyelonephritis, an endovaginal ultrasound was next in the ED physician's diagnostic armamentarium, which he claimed was "to exclude torsion." This ultrasound found no evidence of torsion, and now serves as an "Aunt Minnie" example of an ovarian dermoid for the residents in my program. Whether or not the patient would have ever had complications from the dermoid is uncertain, but some clinicians may argue that this incidental diagnosis was a positive outcome of defensive medicine. However, research indicates that incidental findings on scans ordered for inappropriate reasons may lead to poor patient outcomes when pseudolesions, or subclinical disease (that may never become symptomatic in the patient) are detected². Against the backdrop of defensive medicine such findings often spur an aggressive work-up, which may consist of additional costly diagnostic tests and potentially dangerous procedures to obtain a definitive diagnosis. Studies from Dartmouth researchers have found that regions in the country that provide more imaging services do not have better survival rates amongst Medicare beneficiaries^3,4.

A recent article in JAMA analyzed the practice of defensive medicine in Pennsylvania, a state considered one of the medical malpractice "crisis" states⁵. In their analysis of six of the medical specialties considered at highest risk for liability costs (emergency medicine, general surgery, neurosurgery, obstetrics/gynecology, orthopedic surgery, and radiology), they found that 93% of respondents admitted to practicing defensive medicine. Nearly three-quarters of these physicians admitted that they actually practiced defensive medicine "often." There were several factors that contributed to the practice of defensive medicine amongst the surveyed physicians, most of which centered on a fear of being sued for a tort violation. A "tort" can be defined as an unintentional violation of another person's rights usually due to negligence, and is subject to a civil action and judgment, with damages payable to the wronged party (in contrast with a "crime", which is an intentional violation of rights subject to criminal action and penalties). Fear of being sued for a tort violation has many components: concern over perception of the physician once a lawsuit is known to exist, fear of the burden of defending a lawsuit (which can commonly take years to pass through the court system), concern over adequate coverage by their malpractice insurance carriers, and concern over future malpractice insurance premium increases. This JAMA study showed that specialist physicians who lacked confidence in their coverage were more than twice as likely as other physicians to order unnecessary diagnostic tests, refer patients to other physicians unnecessarily, recommend invasive procedures despite the fact that they felt them to be unneeded, and to avoid risky procedures⁴. They also found that specialist physicians who perceived their malpractice insurance premium burden as "extreme" were more than one-and-a-half times as likely to overprescribe medications, refer patients unnecessarily, and order unneeded diagnostic tests. As a part of the survey, they also asked the respondents to provide details of their most recent act of defensive medicine. Seventy percent of these physicians reported the ordering of an unnecessary diagnostic test as their most recent act. The most commonly reported unnecessary diagnostic tests ordered were imaging studies. Of course, this is of particular concern to you and I as radiologists, as this shifts liability to us, significantly increases our workload, and in the long run may result in an across-the-board drop in reimbursement rates for imaging procedures by both Medicare and private insurers.

Data from a recent study published in the JACR confirms that the three reasons most commonly cited for decreasing career satisfaction amongst Radiologists are concern over the medicolegal climate, increasing workload, and increasing financial pressures⁶. This same JACR study showed that amongst the 96% of respondents that reported carrying malpractice liability insurance, 99% of these reported increases in their malpractice premiums in the past 3 years, with 65% reporting increases of 25% or more to their premiums. As well, 42% of respondents indicated that that their insurance carriers no longer provided malpractice coverage. Notably, because of the pervasive fears of liability amongst obstetricians and radiologists (with regards to interpretation of mammography), the authors in the JAMA study concluded that women's health may be most severely affected by the practice of defensive medicine⁴.

The Medicare Payment Advisory Commission (MedPAC) is a federally appointed group of health policy experts that serves to advise the U.S. Congress and the Centers for Medicare and Medicaid Services (CMS) on issues regarding the Medicare program and the Medicare reimbursement policy. According to the March 2005 MedPAC Report to the Congress, imaging services are growing more rapidly than any other services paid under the physician fee schedule⁷. For example, between 1999 and 2002, the per-beneficiary average annual growth rate in the use of fee schedule imaging services was twice as high as the overall growth rate for all fee schedule services (10.1 percent vs. 5.2 percent). Accordingly, the federal government has a vested interest in understanding the cause of such rapid proliferation of imaging services, and intends to make sure that these studies are appropriately ordered, performed, and interpreted. Of course, there are many different explanations for the rapid expansion of medical imaging (Table 1), and the practice of defensive medicine is only one piece of the puzzle. Self-referral is another major cause of imaging overutilization. With respect to diagnostic imaging, self-referral is the practice of referring patients to imaging facilities in which the referring physician has a financial interest, and is an increasingly common reason non-radiologists order unnecessary imaging studies^8,9. Amongst self-referring practitioners of defensive medicine, this added financial gain will likely further lower the threshold of ordering unnecessary studies, many of which are already primarily motivated by the fear of a lawsuit.

Table 1 – Causes of imaging overutilization
Self-referral
Defensive medicine
Use of imaging studies in place of the physical exam
Lack of knowledge about the appropriate imaging study to order amongst referring clinicians
Unnecessary repetition of imaging studies
Overutilization by emergency departments (both for defensive purposes and triage purposes¹⁰)
Increasing tendencies towards aggressive surveillance and treatment of incurable diseases
Direct to consumer marketing (e.g. 3D/4D fetal ultrasound)

If the practice of defensive medicine goes unchecked, it will clearly be to the detriment of our entire medical system. So, what can we do about it? We are all well aware of the continued efforts toward tort reform, which is a battle that promises to continue far into the foreseeable future. Perhaps as Dr. Borgstede (current chair of the ACR Board of Chancellors) suggested in the August 2004 JACR, the policing of substandard medical practice should occur through state medical boards, rather than standard litigation¹¹. Obviously, malpractice lawyers and their political lobbyists will stop at nothing to prevent this from occurring. Perhaps better clinical guidelines are needed to educate both patients and physicians about the appropriate imaging work-up for clinical situations that are most prone to result in defensive medical practices. We as radiology residents can play our part by improving our communication and relationships with referring clinicians, and taking a moment to educate them about the appropriate imaging studies for a given clinical situation. But, will this really make the desired impact? How have your referring physicians reacted when you've tried to prevent or change an inappropriate study? Can a radiologist realistically block an inappropriate study if they feel that it is motivated by defensive medicine? In your experience, who are the worst offenders practicing defensive medicine? What about radiologists? How guilty are we in practicing defensive medicine? Please click on the hyperlink below to logon to the new ACR Resident and Fellow Section discussion group forum and express your own personal experiences, departmental experiences, opinions, and recommendations with your peers from around the nation.

Hall P, Adami HO, Trichopoulos D, Pedersen NL, Lagiou P, Ekbom A, Ingvar M, Lundell M, and Granath F. Effect of low doses of ionising radiation in infancy on cognitive function in adulthood: Swedish population based cohort study. BMJ 2004; 328(3):19-24.

Fisher ES, Welch HG. Avoiding the unintended consequences of growth in medical care: how might more be worse? JAMA 1999;281(5):446-53.

Fisher ES, Wennberg DE, Stukel TA, Gottleb DJ, Lucas FL, and Pinder EL. The implications of regional variations in Medicare spending. Part 1: The content, quality, and accessibility of care. Annals of Internal Medicine 2003; 138(4): 273–287.

Fisher ES, Wennberg DE, Stukel TA, Gottleb DJ, Lucas FL, and Pinder EL. The implications of regional variations in Medicare spending. Part 2: Health outcomes and satisfaction with care. Annals of Internal Medicine 2003; 138(4):288–298.

Studdert DM, et al. Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment. JAMA 2005; 293(21):2609-2617

Cypel YS, Sunshine JH, Ellenbogen PH. The Current Medical Liability Insurance Crisis: Detailed Findings from Two ACR Surveys in 2003 and 2004. JACR 2005;2(7):595-601.

MedPAC Report to the Congress: Medicare Payment Policy. March 2005

Hillman BJ, Joseph CA, Mabry MR, Sunshine JH, Kennedy SD, Noether M. Frequency and costs of diagnostic imaging in office practice—a comparison of self-referring and radiologist-referring physicians. N Engl J Med 1990; 323(23):1604-8.

Levin DC, et al. Turf Wars in Radiology: The Overutilization of Imaging Resulting From Self-Referral. JACR 2004; 1(3):169-172.

Oguz KK, et al. Effect of Emergency Department CT on Neuroimaging Case Volume and Positive Scan Rates. Academic Radiology 2002; 9(9):1018-1024.

Borgstede JP. Tort Reform and You: Winners and Losers, Friends, Foes, and Facts of Life. JACR 2004;1(8)535-536.