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Minimizing Fear-Driven Diagnostic Testing

By Jamie Santa Cruz

Physicians must understand the key steps they can take to provide quality patient care and avoid malpractice litigation without overtesting or overtreating.

Many physicians worry about the possibility of being named in a malpractice lawsuit, fueling concerns that litigation fears encourage physicians to practice defensive medicine, which drives excessive diagnostic testing, overprescribing medication, and unnecessary referrals. In fact, a 2011 survey of primary care physicians published in the Archives of Internal Medicine found that 42% believed their patients were receiving too much care, with the fear of lawsuits most often driving the extra interventions.1

Unfortunately, the costs of practicing defensive medicine can be significant, both in economic terms and in terms of patient well-being. But there are key steps physicians can take to provide quality patient care without overtesting or facing a lawsuit.

Prevalence of Defensive Diagnostic Testing
It’s difficult to pinpoint how much excess medical testing can be attributed to physician malpractice concerns since physicians may not be in the best position to judge their own motives. “There are many forces that are implicit and explicit in the health care system that encourage physicians to [order tests] not on purely clinical grounds,” says Brenda Sirovich, MD, MS, a research associate at the White River Junction VA Medical Center in Vermont and the lead author of the Archives of Internal Medicine physician survey. “It’s extremely difficult to objectively tease out which factors have the greatest influence.”

However, a new study published in Health Affairs in August provides more objective verification that malpractice concerns significantly influence how many diagnostic tests and interventions physicians order. In this study, researchers questioned physicians about the strength of their fears regarding malpractice and then reviewed their patient charts over a two-year period to determine whether their level of fear might be objectively correlated with more aggressive diagnostic testing. The results showed that physicians who expressed higher concerns about malpractice did order more aggressive tests, at least in two of the three diagnostic scenarios considered in the study (chest pain, headache, and lower back pain). Physicians with strong malpractice concerns also were more likely to refer patients to the emergency department (ED).2

Interestingly, however, the authors did not find a relationship between the current malpractice environment in a particular state and an increased likelihood of aggressive diagnostic testing or ED referrals. “We were able to use a composite measure of state malpractice risk, including things such as the malpractice insurance premiums in that state,” explains David Katz, MD, MSc, an associate professor of medicine in the Iowa City VA Health Care System and one of the study’s authors. “We found very little relationship between malpractice risk at the state level and what physicians were actually doing.”

The results are significant because they suggest that physicians’ malpractice fears are more influential on their behavior than the objective level of risk.

Cost of Excessive Care
Though ordering an extra test or making an extra referral appears to be a harmless defense against malpractice litigation, it comes at a price. Recent estimates put the cost of defensive medicine at approximately $45.6 billion per year.3

But the costs of defensive medicine are not only economic. Every extra test comes with the potential for physical harm to patients. For example, the dangers of CT scans were not well understood in the past, but there’s now increased recognition of the harmful effects of radiation exposure from such scans, according to Sirovich, who also is an associate professor of medicine at Dartmouth Medical School.

Tara Bishop, MD, MPH, an assistant professor of public health and medicine at Weill Cornell Medical College, concurs. “Any procedure has a risk,” says Bishop, whose research interests include malpractice and its influence on physician practice. Therefore, she finds it worrisome to see, for example, a gastroenterologist who recommends a colonoscopy every five years even though the national recommendation is every 10 years. “If you do a colonoscopy when it might not be necessary and there is a complication to that patient, then that’s actually a health consequence to that patient out of something that is done out of fear of malpractice,” she notes.

Even if there is no risk of physical harm from the test itself, there still are other kinds of harm that result from unnecessary testing. As Katz points out, one concern is the psychological harm to patients as they deal with the uncertainty of ambiguous tests and the fear factor involved in false-positive results.

In addition, excessive testing pulls physicians into a “diagnostic cascade,” where one test shows an unsought abnormality that leads to further testing and interventions. As patients and physicians are drawn further into the cascade, the risk of harm increases while the potential benefits steadily decline. “If you just did a test and took the result [and] flushed it down the toilet, you’re probably not going to do that much harm,” Sirovich says. “But the fact is, you look at the results, and you try to make some sort of inference based on what the results are, and that often leads to a path of doing more things.”

Combating Excessive Testing
Reducing the practice of defensive medicine ultimately may require significant national and state reforms. But meanwhile, physician groups increasingly are recognizing the problem of excessive testing and are implementing measures on their own to combat the problem.

One of the most visible efforts is Choosing Wisely (http://choosingwisely.org), an initiative of the ABIM Foundation, which has sought the input of various physician specialty organizations in identifying tests and procedures commonly used within their specialties that likely are not clinically necessary. To date, the project has drawn input from more than 30 different medical societies, each of which has contributed a list of the top five tests and procedures in their specialty whose necessity physicians and patients should question.

Perusing the Choosing Wisely campaign lists is a valuable starting point for physicians seeking to reduce the practice of defensive medicine, but Sirovich, Bishop, and Katz also recommend several additional steps all physicians should take:

Be self-aware. Katz says the most important step for physicians is to be conscious of how the fear of malpractice litigation can influence and potentially bias decision making. “Fear can overwhelm any intentions of physicians to use evidence-based medicine and to take probabilities into account when deciding whether or not to order a test or to admit patients,” he says.

Develop a realistic assessment of the malpractice risk in your area. According to Katz, physicians typically overestimate their risk of being sued. He adds that if physicians discover the actual risk is lower than their perceived risk, it may help control defensive practices. It’s also useful to realize that even when physicians are sued, the majority of cases (78%) do not result in payments to claimants.4

Recognize that every test has consequences. Any test has the potential to launch both physician and patient into a cascade of events. Therefore, “Make sure that it’s something that you have a good enough reason to do,” Sirovich says.

As a corollary to that recommendation, she encourages physicians to rely on time as a diagnostic test. For example, if a patient comes into the office complaining of discomfort that has arisen only in the past three days, waiting a little longer will allow the problem either to resolve itself or prove to be something substantial.

Communicate with patients. In a busy ED or outpatient practice, finding the time to talk through the treatment options with patients presents a serious challenge, but Sirovich says it’s a critical step in addressing the problem of excessive care. She says many patients will be receptive to postponing or skipping tests and procedures in which the benefits don’t clearly outweigh the risks, but they are not likely to suggest the possibility themselves. “Most patients don’t feel empowered to ask why,” she explains. Thus it’s crucial for physicians to explain alternatives.

What if patients request testing that is not clinically indicated, such as an MRI for back pain? Bishop suggests explaining why the test is not recommended and then outlining a course of action for the future. For example, if the pain doesn’t improve within a specific time frame, what would be the next step and when would an MRI be clinically indicated?

Physicians also can consult decision-making aids, such as the tools offered through Dartmouth-Hitchcock’s Center for Shared Decision Making (http://patients.dartmouth-hitchcock.org/shared_decision_making.html), to communicate with patients about their options. The center’s website includes a library of resources, such as videos and handouts, that can help patients make informed decisions.

Carving out time to communicate clearly with patients not only helps reduce the costs associated with defensive medicine but also has the added benefit of reducing the likelihood of a lawsuit if something does go wrong. “Research … around medical doctor communication has actually shown us that there are things that you can do to reduce the risk of malpractice, and a lot of it comes down to communication,” Bishop says. “Having a rapport with patients is really critical to prevent malpractice. Even if bad things happen, patients who have a good rapport with their doctor tend not to seek out legal attention.”

Also, cultivate honesty in the face of mistakes. Bishop points to the model adopted by the University of Michigan Health System as an example of the value of honesty if and when physicians make mistakes. Implementing the “Michigan Model,” which revolves around communication, full disclosure, and apologies in cases of medical errors, has resulted in a substantial decrease in claims and lawsuits across the system (from 260 pending in 2001 to just over 100 currently).5

Although the Michigan Model is an institutionwide initiative, Bishop believes individual physicians can benefit from a policy of honesty as well. “Honesty about mistakes puts physicians at lower risk for getting sued,” she says.

For physicians looking to protect themselves against malpractice litigation, that approach may be just as valuable as simply ordering another test.

— Jamie Santa Cruz is a freelance writer based in New York City.


Tests Geriatric Care Providers Should Question
Included in the Choosing Wisely lists of tests patients and physicians should question, the following recommendations are among those relevant to geriatric care providers:

• Don’t screen for cervical cancer in women older than the age of 65 who have had adequate prior screening and are not otherwise at high risk for cervical cancer (American Academy of Family Physicians).

• Don’t screen for carotid artery stenosis in asymptomatic adult patients (American Academy of Family Physicians).

• Don’t order annual EKGs or any other cardiac screening for low-risk patients without symptoms (American Academy of Family Physicians).

• Don’t order imaging for low back pain within the first six weeks unless red flags are present (American Academy of Family Physicians).

• Don’t obtain screening exercise EKG testing in individuals who are asymptomatic and at low risk of coronary heart disease (American College of Physicians).

• Don’t order brain imaging studies (CT or MRI) in evaluating simple syncope and a normal neurological examination (American College of Physicians).

• Don’t recommend cancer screening in adults with a life expectancy of fewer than 10 years (Society of General Internal Medicine).

• Don’t perform routine preoperative testing before low-risk surgical procedures (Society of General Internal Medicine).


1. Sirovich BE, Woloshin S, Schwartz LM. Too little? Too much? Primary care physicians' views on US health care: a brief report. Arch Intern Med. 2011;171(17):1582-1585.

2. Carrier ER, Reschovsky JD, Katz DA, Mello MM. High physician concern about malpractice risk predicts more aggressive diagnostic testing in office-based practice. Health Aff (Millwood). 2013;32(8):1383-1391.

3. Mello MM, Chandra A, Gawande AA, Studdert DM. National costs of the medical liability system. Health Aff (Millwood). 2010;29(9):1569-1577.

4. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629-636.

5. The Michigan Model: medical malpractice and patient safety at UMHS. University of Michigan Health System website. http://www.uofmhealth.org/michigan-model-medical-malpractice-and-patient-safety-umhs. Accessed September 26, 2013.