Medical Malpractice News

Defensive Medicine: What can be done?

Tags: | Comments: 4 | February 6th, 2014

defensive medicine What is defensive medicine?

Merriam Webster defines defensive medicine as the practice of ordering medical tests, procedures, or consultations of doubtful clinical value in order to protect the prescribing physician from malpractice suits.

Further, as noted in a 2005 Journal of the American Medical Association article,

Defensive medicine takes two main forms: assurance behavior and avoidance behavior. Assurance behavior involves charging for additional, unnecessary services in order to a) reduce adverse outcomes, b) deter patients from filing medical malpractice claims, or c) provide documented evidence that the practitioner is practicing according to the standard of care, so that if, in the future, legal action is initiated, liability can be pre-empted. Avoidance behavior occurs when providers refuse to participate in high-risk procedures or circumstances to avoid litigation.

But there’s more. Surveys consistently show that between 70% and upwards of 90% of doctors report that they practice defensive medicine. And according to a 2009 survey conducted by Jackson Healthcare this is estimated to add up to a cool $650-$850 billion dollars a year. That’s billion with b! That’s somewhere between 26-34% of the annual cost of healthcare in the U.S. total, and stands in stark contrast to the roughly 8% of total healthcare costs that makes up physician compensation.

So, clearly defensive medicine is a problem. Even those who dispute numbers like those above, or think that doctors overestimate the amount of defensive medicine they practice (a seemingly odd assertion, but one that some make) acknowledge that defensive medicine is a real and substantial problem, and that reducing it is a key component in reducing the overall cost of healthcare. Further, any proposal that reduces defensive medicine does so by alleviating doctors’ fears of litigation since that fear is by definition the cause of defensive medicine. This means that reducing the direct costs of defensive medicine also reduces the collateral costs that accrue through things like shortages of those willing to go into medicine or high risk specialties, and adverse effects of unnecessary tests that then have to be treated at additional cost.

So what are these proposals? How do we eliminate, or at least mitigate, the practice of defensive medicine? Well, the answers range from the tried and true, traditional tort reform, to some very innovative, and in some cases drastic proposals.

Traditional Tort Reform – This is the most common and probably the most popular proposal. A tort is a wrongful act that results in legal civil liability. Tort reform limits, or sets parameters on torts. The most common example is the placing of caps on non-economic damages. These caps place an upper limit of liability on things like pain and suffering or loss of enjoyment of life. Other tort reforms include things like tightening up statutes of limitation, putting in place a loser pays system whereby attorneys fees accrue to the loser of the lawsuit, and limits on punitive damages awarded by juries.

However, there are some who think that support for traditional tort reform is as much a result of familiarity as it is evidence that it works. In other words, many don’t know much about other proposals and so support for tort reform becomes the default of those opposed to defensive medicine. Consider the following:

  • In the Jackson Healthcare survey mentioned above 77% of physicians said that if caps on non-economic damages were put in place they would either increase or not change the amount of defensive medicine they practiced.
  • Likewise, after Texas passed tort reform capping non-economic damages 77% of doctors there said they did not change their practice of defensive medicine.
  • Reforms like caps on non-economic damages don’t specifically target the reduction of procedures that are least likely to be medically valuable, and may disproportionately decrease liability for the most dangerous practices (i.e. those that lead to the most serious damages and thus the highest payouts).

On the other hand, tort reform has been shown in numerous studies to reduce the overall frequency and severity of lawsuits. It naturally lessens the incentive of trial lawyers by limiting what they can take away from a suit, and offers at least some peace of mind to doctors by ensuring that at minimum there is some limit to what their liability could be. Further, it tends to reduce malpractice insurance premiums because it provides a more stable risk evaluation environment for insurers. Even many of those who doubt that traditional tort reform would offer dramatic savings in healthcare costs or reduction of defensive medicine acknowledge that it is a key component in an overall strategy. Traditional tort reform alone probably is not enough. But reform that does not include a tort component will understandably not be acceptable to doctors and will not ultimately address all the problems that contribute to the practice of defensive medicine and the high cost of healthcare in the U.S.

In the next couple of posts we’ll look at some other, less traditional proposals for dealing with defensive medicine including safe harbors, no-fault patient compensation systems, arbitration, and disclosure apologize and offer systems.

This post was written by Justin Donathan.
Justin at Google+