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

Ilene R. Brenner, MD


April 19, 2011

In This Article

How to Improve the Malpractice Situation

President Obama's budget includes money for grants to states to try out alternatives to the current medical tort system. Reforms that would be able to use grant money include the following.

Health Courts

This involves having specially trained judges who would decide verdicts instead of juries.

Benefits are that judges would be less likely to rule for astronomical verdicts, and a smoother trial process would mean faster turnover.

However, there are potential problems. Doctors win an estimated 80% of cases at trial. Healthcare courts could become a "be careful of what you wish for" situation that could lower that percentage. There are so many unknowns. Does each case get heard? Is there a process for health courts to screen out frivolous cases?

How is the standard of care determined? No matter how educated the judges are, they are not board-certified physicians practicing in the defendant's field. Thus, experts will still be needed, and if so, will there be strict rules as to who can serve this purpose?

Creation of a Legal Defense Fund for Doctors

To qualify for these funds, you would have to follow guidelines for best clinical practices and use electronic medical records. How much money would be available to you? How would it be funded? These are some questions that would need to be answered. However, I could write a whole article on the problems of "best clinical practice" and electronic medical records. Although an intriguing idea on the surface, I foresee many issues with qualification and implementation.

Require that physicians and hospitals disclose errors and make apology and compensation to mitigate a lawsuit. The apology is protected, so if the patient does sue, it can't be used as an admission of guilt. These programs are well documented to reduce litigation, and as long as the apology is truly not admissible in court it is an idea worth expanding beyond the 20 or so states that have them.

Change legal rules that result in higher malpractice awards. Because so few details are given, it is difficult to comment.

When a physician is sued, he or she has already lost regardless of outcome. It is this loss, or threat of it, that creates the need for defensive medicine. I'm not convinced that President Obama's plan does enough to weed out frivolous claims before they become lawsuits. If something like that is enacted, it could alter physician behavior.

Perhaps Obama's suggestions could theoretically help improve defensive medicine from a medical malpractice standpoint. However, physicians can't be expected to lower costs with best practices and give their patients whatever they want. New rules make it very clear that in the near future patient satisfaction and physician reimbursement will be linked. If that occurs, any potential gains from medical malpractice reform will be lost.


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