For years, decades even, the American public has heard the relentless chorus from the advocates of so-called “tort reform” — namely, from the insurance lobby and American Medical Association — that such reform (damage caps, health courts, etc.) is necessary due to the widespread practice of “defensive medicine.” Our medical malpractice attorneys would like to set the record straight.
What is defensive medicine? As defined by the insurance lobby, it is the supposed widespread practice of doctors ordering unnecessary tests and superfluous treatments out of fear that if they do not, they may be subject to a future lawsuit. Defensive medicine, we have been endlessly told, is fueling the high cost of medicine and causing any number of other ills.
The litany of the evils of defensive medicine has been a highly successful strategy by the medical and insurance lobby, the true proponents of tort “reform.” Over time, the American public has come to accept the suggestion that doctors nationwide are acting, based not on the best interests of their patients, but out of an irrational fear that the failure to take action that is not medically indicated will lead to a malpractice lawsuit.
The top Chicago medical malpractice attorneys of Passen & Powell have long questioned whether the practice of defensive medicine was truly as widespread as we have been lead to believe. Now, the Huffington Post has published an informative and thoughtful expose demonstrating what we have suspected all along: the concept of “defensive medicine” is a fraud.
Why is this necessarily the case? Under federal law (42 U.S.C. § 1320c-5(a)(1)), a doctor cannot bill Medicare or Medicaid for any test or procedure that is not provided “economically and only when, and to the extent, medically necessary.” Likewise, physicians cannot seek or accept payment for providing services that are not “reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member.” (42 U.S.C. § 1395y(a)(1)(A).) By submitting a claim to Medicare and Medicaid for payment, doctors certify that the services rendered meet this standard.
Thus, any doctor who bills Medicare or Medicaid for “defensive medicine” is committing fraud against the federal government and thus the American people. Although fraud certainly occurs in the Medicare and Medicaid programs, our medical malpractice lawyers do not believe that it is widespread. Instead, the argument that defensive medicine is a widespread problem is itself a fraud, designed to impose “tort reform” programs that will limit or eliminate victims’ rights for the benefit of the medical community.
Indeed, the “studies” which are used to establish that defensive medicine is being practiced are in fact nothing of the kind. For example, one of the most recent defensive medicine “studies,” published on June 28, 2010 in the Archives of Internal Medicine, was simply an agenda-driven propaganda tool designed and conducted by the medical lobby itself. Far from scientific, the “study” was noting more than an informal survey of doctors. As is the case with all unscientific surveys, it is not a substitute for actual data. Most crucially, the respondents are not even close to a representative sample of physicians nationwide: no attempt is made to make them so, and in any event the respondents self-select (only those who are motivated to respond do so).
And the actual numbers in fact debunk the myth of defensive medicine. The Congressional Budget Office recently issued a report concluding that virtually no savings in healthcare costs would occur if draconian “tort reform” were imposed nationwide. In fact, the CBO concluded that such measures would result in only 0.3% savings. This report completely undermines any argument that defensive medicine is widespread – if the threat of lawsuits were eliminated, the practice of medicine would not substantially change.
Likewise, as early as 2003 the federal General Accountability Office issued a report roundly condemning defensive medicine claims, noting that defensive medicine “studies” are nothing more than anecdotal. The report cited problems such as shockingly low response rates (only 10-15% response), and the tailoring of questions to ensure the desired response – doctors were only asked whether they had ever practiced “defensive medicine,” not how often they had done so, whether they had even done so more than once, whether they only did so in certain types of situations or with certain patients or types of patients, etc. The GAO concluded that such surveys provided no actual data revealing the “extent and costs associated with defensive medicine.”
So, why the continued interest in defensive medicine? Our Chicago injury lawyers know the real truth: the myth – and fraud – of of defensive medicine was constructed by the to support arguments for tort reform. Such reforms would, in turn, harm the victims of medical negligence while lining the pockets of doctors, hospitals, and other medical providers. We urge our legislators to respond to data, not “defensive medicine,” and resist efforts to advance tort “reform.” Any other action would be an injustice, based upon little more than fraud.
For a free consultation with an experienced medical malpractice attorney at Passen & Powell, call us at (312) 527-4500.
