Study finds many imaging studies performed for defensive purposes

Physicians who had gone through litigation in the past 5 years reported a 63% greater incidence of defensive imaging than those who had not.

Results of a study that found nearly 35% of all imaging costs ordered for 2,068 orthopedic patient encounters in Pennsylvania were ordered for defensive purposes are the latest to suggest the pressures of the current medical legislative environment are significantly impacting physician behavior.

Originally presented at the 2011 Annual Meeting of the American Academy of Orthopaedic Surgeons, the study unveiled results that its authors referred to as having “staggering” economic implications.

The authors noted the study was the first they knew of to look at practice decisions of physicians regarding defensive imaging in real time.

John M. Flynn

“The distinction between retrospective survey and real-time evaluation is important because it eliminated any recall bias,” study author and Children’s Hospital of Philadelphia claims committee member John M. Flynn, MD, said.

Study methods and findings

The study asked members of the Pennsylvania Orthopaedic Society to voluntarily and anonymously record a consecutive series of patient-imaging decisions, making note of demographic information, modality, region, and indication for each order. The Chi-square test was used independently to analyze demographics, and economic models were used to analyze costs.

The researchers reported defensive medicine composed 369 of 2,068 (19.1%) orders recorded by 72 orthopedists. According to the study, 193 MRI orders (38.5%) were defensive, with 155 radiographs (10.6%) being ordered for defensive purposes. Further, 22 CT scans (40.7%), 17 bone scans (56.7%) and nine ultrasounds (39.1%) were ordered for defensive purposes.

In all, the study found defensive imaging responsible for $113,675 of $327,414 of total imaging charges based on Medicare dollars. MRIs were responsible for 24.2% of imaging orders and 74.8% of total cost, the study noted, with defensive MRIs composing 48.7% of defensive orders, 84.7% of defensive costs and 29.4% of total cost.

The study also found that physicians who had gone through litigation in the past 5 years reported a “significantly greater” incidence of defensive imaging than those who had not been litigated against in the same span of time. Those who had been in practice for more than 15 years were also more likely to report having utilized defensive imaging.

“The demographic results in this study highlight how exposure to litigation can potentially contaminate clinical decision-making,” Flynn, an Orthopedics Today Editorial Board member said. “Those who had been litigated against within the last 5 years had a 63% higher incidence of defensive imaging than those who had had more remote litigation experience or who have not been litigated against.”

“It seems the further the litigation process is from the physician’s mind, the less likely he or she is to consciously practice defensively,” he added. “The medical liability system should promote patient safety and deter medical error due to negligence by holding providers personally responsible. In practice, medical liability has put a strain on the doctor-patient relationship.”

Questions about study findings

Orthopedics Today Orthopedic Medical Legal Advisor Co-editor B. Sonny Bal, MD, JD, MBA, told Orthopedics Today he does not believe the findings carry the weight they appear to carry at first glance.

“I am skeptical about the study findings,” Bal said. “Unfortunately the message has the potential of over-simplifying a complex issue.”

Bal explained how prospective and retrospective studies are performed in the context of identifying a cause and effect related to an underlying disease or treatment with an endpoint of demonstrating a statistical trend that has the potential of aiding a practicing physician to benefit individual patients. These studies, he added, explain their limitations, recognize biological variability and hope to validate a physician’s mandatory obligation to increase the likelihood of a positive outcome.

“In contrast, the behavioral study reported from the Pennsylvania group is neither scientific nor medical in nature,” Bal noted. “Ordering any imaging study that is not in the patient’s best interest and solely to protect the doctor against litigation is illegal, dishonest, and unethical. The study, in essence, asked doctors – anonymously – if they were unethical. The responses, predictably, are based on private thought processes that the imaging studies ordered were partly to benefit patients, and partly ‘defensive.’”

“If there were any reason whatsoever to order a test, however weak the justification, then by definition, that test does not constitute ‘defensive medicine’ and, importantly, if one were to calculate the cost of the harm missed by failing to do indicated imaging studies, then one would find that the ‘fear of a lawsuit’ is cost effective – which is precisely the well-recognized economic merit of our tort system,” he added.

Strength in method

Flynn defended the methods of the study, noting that it was the first to ask physicians to report their decisions as they were made rather than in retrospect.

“The main power of our study is methodological — we did it at the moment of decision — rather than a telephone interview or back-of-the-napkin estimate,” Flynn said. “The waste we documented really happened. That has never been done before, because it is very hard to get physicians to do it. As for the ethics, it is this simple: Instead of taking a poll asking ‘Do you ever exceed the speed limit when you drive?’ we asked people to record their speed as they are driving.”

Bal said the study’s use of the word “ubiquitous” to describe defensive medicine’s presence is potentially misleading, suggesting the issue is more widespread than he believes. He noted the end point goal of the study was to urge immunity through tort reform.

“However meritorious this goal, it is premised on the faulty notion that immunity would allow doctors who have up to now been ‘bad’ to become ‘good’ by ordering in the future only those imaging studies that are truly in the patient’s best interest,” Bal said.

It is important, Bal noted, to draw a line between what might qualify as defensive medicine and what qualifies as nothing more than a physician trying to do what is best for the patient.

“The word ‘ubiquitous’ means ‘being or seeming to be everywhere at the same time,” he explained. “An ‘indication’ to do a test is a good reason in the patient’s best interest. If a doctor is not qualified to determine that there is a good reason, or is so superficial as not to make such determination, then the doctor should not be ordering the test.”

According to Flynn, use of the word “ubiquitous” is justified given the widespread nature of defensive medicine – as evidenced, he claimed, by a number of studies displaying similar findings with regards to physicians ordering tests purely to guard against litigation.

“The rates of defensive medicine that we found are exactly in range with many, many other studies and identical to a recent Massachusetts Medical Society study, among many others,” Flynn told Orthopedics Today. “The word ‘ubiquitous’ is most appropriate.”

“It is highly unusual to encounter a medical malpractice case where the verdict turned against the doctor for lack of ordering more tests,” Bal said. “On the contrary, the court dockets are full of tragic cases, where a test was ordered (for whatever reason), the test yielded a clinically significant finding, and the clinician was simply unaware of the findings – leading to a delay and injury.”

Flynn, however, said his experience has proven otherwise.

“I sit on the [Children’s Hospital of Philadelphia] claims committee and see every single lawsuit in the hospital by all specialties,” Flynn said. “Most – not just an occasional suit, but most suits – hinge on whether a test was ordered. So many times, the plaintiff lawyer’s main complaint is that his client ‘deserved another MRI, head CT, abdominal ultrasound, etc. So I started to wonder how the experience of practicing in this environment altered test ordering. Hence, the birth of this study.”

Bal, who has a degree in law as well as a joint replacement practice said, “A survey of medical malpractice cases across all specialties in the United States fails to show any trend that lack of a test is the dispositive issue. If institution-specific review suggests otherwise, then one has to question the training and competency of the physicians practicing at that institution. Bad medicine can sometimes make for good law; if a doctor orders a test solely as litigation prophylaxis, as suggested by Flynn and colleagues, then checking the results of that test would be a superfluous exercise; after all, the test would have been ordered without regard to its outcome, and merely as a shield against litigation.”

Bal applauded the authors of the study, “[The] authors are to be commended for taking on a difficult and complex issue that is fraught with partisanship, and emotion. Future studies will hopefully address the utility, or lack thereof, of defensively ordered medical test as a means of immunizing the doctor against a claim of negligence.” – by Robert Press

Reference:

• Miller RA, et al. The prevalence of defensive orthopaedic imaging: A prospective practice audit in Pennsylvania. Paper 119. Presented at the 2011 Annual Meeting of the American Academy of Orthopaedic Surgeons. Feb. 14-19. San Diego.

• John M. Flynn, MD, is an associate professor of orthopaedic surgery at the University of Pennsylvania School of Medicine and associate trauma director of orthopaedic surgery at the Children’s Hospital of Philadelphia. He can be reached at flynnj@email.chop.edu.
• B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement at the Department of Orthopaedic Surgery, University of Missouri School of Medicine. He can be reached at BalB@health.missouri.edu.
• Disclosure: Neither source has relevant financial disclosures.

I think it is very interesting data, and I believe it. What they have done is taken a look at imaging used for purely defensive purposes, and found that 20% of all the studies and 35% of all the imaging costs are purely for defensive purposes. It is a travesty this has to go on in our system. I think if we had meaningful tort reform, this kind of stuff would not go away completely but it would certainly be abated greatly.

I think it is quite justifiable. I believe the data is quite accurate. Maybe there has been a little bit of exaggeration or a little bit of bias, but my feeling as a radiologist is that there is no question a lot of the musculoskeletal MRIs, plain X-rays so on and so forth that we do are probably not indicated. There is an awful lot of defensive medicine going on.

Things are going to have to change on the legislative side. It is something that Congress should take care of, it is something the Obama administration should take care of. I was disappointed the healthcare reform bill really did not do anything to curb defensive medicine – it did not have any real tort reform. I think the limitation on non-economic damages is going to be the only thing that will help cut this stuff down.

What they said in the study, how a lawsuit in the last 5 years and being in practice more than 15 years predicted an increase incidence of defensive orders – I believe that. Once you have been burned, you are much more likely to be cautious. Everybody who has been in medicine long enough has been sued at one point or another in his career, and it makes you very gun shy.

— David C. Levin
Professor and chairman emeritus
Department of Radiology
Jefferson Medical College
Thomas Jefferson University
Philadelphia, Pa.