COMMENTARY

Tort Reform: The Solution to Practicing 'Defensive' Medicine?

Alok S. Patel, MD

Disclosures

April 09, 2019

This transcript has been edited for clarity.

Almost every doctor at one point has practiced defensive medicine. You know what I'm talking about. You order an extra lab test or image or maybe even a procedure, all because you have to "CYA" (ie, cover your a--).

But there's a price tag to this behavior. Studies estimate that defensive medicine costs our healthcare system from $55 billion to upwards of $200 billion a year.[1,2] And the solution isn't simple. Most experts blame our malpractice system and some are calling for tort reform or a cap on malpractice payouts. The thought is that these caps would help doctors rest a little easier, focus on good patient care, and not practice such defensive medicine.

Proponents of tort reform believe that having caps would actually reduce the amount of unnecessary labs and tests that a lot of patients receive, and they may actually combat rising malpractice rates in several states.[2] The other side argues that with tort reform, hospitals may not be as motivated to prevent patient errors, and some malpractice victims wouldn't get the payout that they deserve. And then there's the debate about whether malpractice reform would affect defensive medicine at all.[3,4]

Here's the bottom line. We want patients who have been harmed to be taken care of. And we want to identify and prevent malpractice. But where are these $50-, $60-, $100 million payouts coming from? How do you quantify pain and suffering? And is a nonmedical jury really the right group to be doing this?

State caps on noneconomic damages range from $250,000 to $2.5 million to no limit at all,[5] and it obviously affects physicians and patients on a state-by-state level. So, doctors, I want to hear from you—not lawyers, who are taking home 20%-40% of malpractice awards, and definitely not politicians. Are you for or against tort reform?

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