Justinian C. Lane, Esq.
Let Justice Be Done, Though the Heavens May Fall
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Justinian Lane's Blog

Justinian's Blog

Don’t blame me for so-called defensive medicine

When a doctor orders a test, he or she is representing to the health insurance company that the test is medically necessary.  Yet many doctors admit they order tests they do not believe are medically necessary because they are afraid of getting sued for failing to order it.  So trial lawyers get the blame for these unnecessary tests because we’re such a terrible blight on society.  Here’s the trouble with that argument: It excuses insurance fraud.

That’s because in order to get the health insurance company to pay for the test, the doctor is representing to the insurer that it is medically necessary.  If it isn’t, the insurance company won’t pay for it.  So regardless of whether it was out of fear of big mean lawyers, any doctor who orders an unnecessary test is a crook.  Period.

So let’s just be honest.  When a doctor says he or she orders an unnecessary test, he or she really means that the test isn’t expected to provide new information relevant to a diagnosis.  Ordering the test still falls within the standard of care, but it just isn’t likely to be useful.  Tests ordered under those circumstances aren’t unnecessary, but are instead ordered out of an overabundance of caution.  Blaming trial lawyers for “overly cautious medicine” doesn’t quite have a sinister ring to it, does it?

Look, I’ve never sued a doctor in my life and probably never will because I sue drug companies and asbestos companies.  More often than not, I’m standing up FOR a doctor because some lame pharma defense attorney is claiming it was the doctor’s fault the Mirena moved, or something like that.  So part of my job is proving that my clients’ doctors did the job right.  If the feds completely eliminated ALL medical malpractice lawsuits, it wouldn’t decrease my income by one dime.  So I have no financial interest in this game.  What I do have an interest in is making sure my profession isn’t used as a boogeyman by doctors who either (a) unethically order unnecessary tests to pad their bank accounts, or (b) play by the rules but still use the specter of defensive medicine to justify tort reform.