“Defensive Medicine” is a concept created by the medical insurance industry to describe a practice of doctors ordering “unnecessary” tests and treatment for patients as a response to “out of control” medical malpractice lawsuits. The reality of defensive medicine, however, is something totally different.
This summer the Journal of Empirical Legal Studies published a comprehensive study demonstrating that healthcare spending – the number of tests and procedures ordered per patient – was completely unaffected by tort “reform” of any kind.
The number of tests and procedures ordered bore no relation to caps on medical malpractice damages or lower rates of malpractice suits. Even in Texas, where dramatic tort “reforms” eliminated many of the rights of patients in favor of “protection” for physicians, there was no decrease in so-called “defensive” medicine after reforms were passed.
In fact, there was a slight increase in medical spending and tests in some areas, particularly urban centers, after “reforms” were enacted. The study’s authors speculated that this was because, with the buffer of medical malpractice reduced or eliminated, many physicians opted for more aggressive treatments, regardless of whether this course was truly in the best interest of the patient.
Indeed, even the Congressional Budget Office has found that, even if drastic and extensive tort “reforms” were enacted nationwide, the best possible outcome would be a reduction in healthcare costs by one-half of one percent – and no more than 0.3% would be attributable to a reduction in tests and procedures. The CBO also noted that there would likely be greatly increased costs as without the deterrent effect of malpractice litigation physicians would order greater amounts of services for the injured. Likewise, the CBO estimates that the cost to taxpayers would increase, as costs normally borne by physicians who injured patients (and those physician’s private insurance companies) would be passed on to taxpayers via Medicare.
In fact, the “evidence” of “defensive medicine” comes entirely from surveys of physicians, almost always sponsored and conducted by political groups lobbying for lesser protections for patients. In fact, such respected publications as the New York Times, the Washington Post, and the New Yorker have concluded that the real reason physicians order too many tests and procedures is not because of any legitimate or illegitimate fear of medical malpractice, but because they profit from these tests and procedures.
We at Passen & Powell urge legislators and the public alike to at last reject the myth of “defensive medicine” and to abandon the idea of tort “reform.” These “reforms” are nothing more than an attempt to decrease liability for physicians while eliminating the rights of injured patients.
For a free consultation with an experienced Chicago medical malpractice lawyer at Passen & Powell, call us at (312) 527-4500.