Why Defensive Medicine Won't Go Away...and Might Become Worse

Ilene R. Brenner, MD


April 19, 2011

In This Article

Why Doctors Need to Be Concerned

Many legislators, policy experts, and attorneys think that physicians' concerns are overblown. They claim that the current system is necessary to protect patients. I dispute this for 2 reasons.

First, defensive medicine is real. Every doctor knows it. Although the number is difficult to quantify, Price Waterhouse did so in their 2008 study that estimated defensive medicine costs $210 billion a year. A Congressional Budget Office study from December 2008 backs up that number.

Although this study is touted as verifying that defensive medicine is not a significant factor in healthcare costs because tort reform will only reduce costs by 0.5%, the fine print showed that number to be based on insurance premium reductions. It added that when defensive medicine is figured in, the total percentage could be as high as 7%. When multiplied by the $2.4 trillion in overall healthcare costs, that comes to $168 billion per year. Even in the healthcare world this is not an insignificant number.

Second, the current system doesn't give real justice for patients who have been truly harmed in medical malpractice. It takes years for a lawsuit to garner any money for patients. Much of the settlement/judgment goes to the plaintiff's attorney. Plus, it's rare that there will be a change in the physician's medical practice. There's no current mechanism to have the lessons learned from this trial be carried out for the specialty as a whole.

The Obama administration has taken medical malpractice caps on noneconomic damages off the table, but has many other reforms that they plan to try to get passed as law. Personally, I don't think caps do anything to fix the problem, although it can temporarily lower or control skyrocketing medical malpractice rates.

What Would Make You Stop?

Before I go into the specifics of the new proposal, first answer this yourself: What do you think would cause you to discontinue your practice of defensive medicine?

Did you say: Complete protection from lawsuits? This is not realistic. We all know that there are bad doctors out there, and there needs to be a system in place to find them and educate them if possible -- or discontinue their practices if necessary. How do you craft a system that protects doctors from frivolous lawsuits and defends the right of a patient to sue for medical malpractice?

There's no easy answer to this, although President Obama's proposal to explore several options does attempt to address many facets of the problem.


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