Ordering tests that are considered medically unnecessary is not defensive medicine but simply thoughtless medicine. I am a lawyer of 40 years experience in representing patients and their families who are victims of medical malpractice. My clients are harmed by thoughtlessness and failed communications and not because an unneeded medical test was not performed.
The burden of proof required in all such cases is whether the applicable standard of practice was met and is not satisfied by proof that had a test not required by the standard of practice been performed a correct diagnosis would have been made.
The fact that the NEJM study years ago reported that 60% of the 1400 cases they reviewed lacked merit deserves thought but hardly justifies an indictment of the legal system. Of more importance is the fact that the same journal has reported that more than half of the incidences of real malpractice do not result in claims. The reason, not carefully addressed by the Journal, is the conscious and unconscious concealment of medical error which is rampant throughout our healthcare system.
The cover up is not the result of the fear of being sued, though that is the excuse most often trotted out by those who want to further restrict the rights of patients to be compensated for harms they have needlessly suffered.
When I, in an earlier life, was a corpsman and then a respiratory therapist, I witnessed many patients being needlessly harmed. The cause of the harm was never charted as a medical mistake if charted at all. The historical time frame for my health care professional experience was 1967-1972.
When I began my law practice in 1975, physicians as a group were unwilling to become experts to review medical error issues. They were then and now unwilling to do proper peer review investigations and this unwillingness has nothing to do with malpractice suits. Peer review proceedings are not discoverable in malpractice cases.
“Falsehood flies and the truth comes limping after…”
Jonathan Swift