Public Health Law Map - Beta 5 - Medical and Public Health Law Site

increase the probability that an injured patient will seek legal counsel.
Defensive medicine directly increases the probability of injury when it involves
dangerous tests or procedures. For example, intravenous pyelograms (IVPs) pose a
significant risk of complications. If an IVP is ordered as a necessary diagnostic test,
the risk of the procedure is balanced by the benefit of the diagnostic information that
it produces. If an IVP is ordered as a defensive measure, there is no benefit to the
patient to offset the risk. Since a defensive test or procedure is, by definition, one that
does not have a favorable risk or cost benefit ratio for the patient, the patient may be
expected to sue successfully for any major complications of a defensive test or
procedure.
a) Technology-Oriented Medicine
The last 30 years of technology-oriented medicine have shifted patients’ perception
of the role of the physician. Before the explosion of technological medicine, the role
of the physician was to cure, if possible, and to comfort. It was accepted that in
many cases the physician would not be able to cure the disease. This was not a
failing of the physician but a recognition that illness and death are an integral part
of life. The shift to technology- oriented medicine helped to drive the growth of
procedure-oriented specialty medical practice. This view of the physician as a
skilled mechanic leads to an expectation of cure and to irreconcilable conflicts.
If the technological interventions offered fail, the physician fails because the
supplementary role of comforter has been lost. Defensive medicine must
perceptibly improve the outcome of care if it is to be an effective strategy. If it does
not improve the patient’s perception of the outcome of the care, its negative impact
on the humanistic aspects of care will engender patient dissatisfaction and hostility,
resulting in an increase in litigation. In the worst case, it interferes with providing
quality medical care: angering the patient and providing the grounds for a lawsuit.
b) Diagnosis and Testing
Arriving at a diagnosis is the intellectual end point of defensive medicine.
Defensive medicine is directed at finding the definitive test to establish the
diagnosis or doing enough tests to rule out other possible diagnoses. This ruling out
is considered an important legal protection should someone later determine the
patient’s actual problem.
The ruling out of alternative diagnostic hypotheses is a valid strategy if the
universe of possible alternatives is sufficiently large. But it is a dangerous strategy
if the initial diagnostic assumptions constrain subsequent data collection and
hypothesis generation. The physician must guard against ignoring the patient’s
stated problem in favor of a diagnostically tidier problem. For example, if the
patient has trouble walking because of a plantar wart, the physician should not
attempt to repair the patient’s asymptomatic slipped disk as a substitute for
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