Medical malpractice lawsuits need to be curtailed, argue supporters of tort reform, because fair access to the civil justice system is responsible for rising healthcare rates. Of course the actual payments for med mal settlements and judgements are a mere fraction of healthcare costs. That is why those pushing these laws usually explain that the medical malpractice effect on healthcare costs is not caused by outright judgements and settlements, but indirectly, via defensive medicine.
The argument is that, out of fear of being sued, doctors provide much more care than is actually needed to preemptively “defend” themselves. Without fear of legal liability,tort reformers suggest that this extra care would not be provided and costs would go down. Unfortunately, many have taken to this argument as a clear reason to support taking away rights of medical patients in order to help the system as a whole.
But, as with virtually all tort reform arguments, they do not hold up to actual evidence.
“Defensive Medicine” Myth
The new medical malpractice “briefing book” published by the Center for Justice & Democracy has the scoop. The main problem is that most studies which seek to show the connection between lawsuits and defensive medicine are based only on physician surveys. The non-partisan Government Accountability Office has shown that these surveys are inaccurate and misleading. Rarely is any outside evidence brought forward to back up or support these physician surveys. In fact, the opposite is true. Virtually all research projects examining the real consequences of tort reforms laws show that the supposed benefits do not materialize.
For example, perhaps the most high-profile recent study involved surveys of Pennsylvania orthopedic surgeons. Those surgeons claimed that about 20% of the imaging tests they performed were for “defensive” reasons.
A clinical professor from Columbia University recently evaluated that high-profile study to gauge its value. Unsurprisingly, he found a string of problems. For one thing, there was no actual paper on the report and nothing put up for peer review–the common practice in all legitimate academic presentations. In addition, there was little complexity to the methodology beyond just asking doctors whether the tests was for “defensive medicine. On top of that, the survey was used to make claims about defensive medicine with little comparisons or analysis to many non-defensive reasons for the same tests to be ordered.
Unsurprisingly, the latest study on defensive medicine–like ones before it–made no mention of billing incentives for these tests. After all, claiming that tests are ordered for defensive purposes without need likely indicates billing fraud. Are doctors actually admitting that they commit fraud 20% of the time with their billing practices and testing?
After all, the civil law does not hold doctors accountable for failing to test in cases where it is not necessary. It is all about standards of care and reasonableness. Defensive medicine only applies if doctors are ordering tests when those tests are not required by the ordinary standard of care and are unreasonable. In other words, these tests cannot be pinned on a fear of malpractice lawsuits when there is no real risk of liability even if one does not perform the test.
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