For years, Republican politicians, physicians, personal injury defense attorneys, and other parties with a vested interest in tort reform have been lobbying for government intervention in the courtroom so as to curb “frivolous lawsuits” and for caps on medical malpractice awards. In today’s politically charged climate, the debate on health care reform rages on. And tort reform proponents have thrown their hats into the ring by spinning more stories to the impressionable public on the danger of “defensive medicine”.

What is defensive medicine?

The Record, West Virginia’s Legal Journal, recently ran an article by personal injury attorney Ben Glass which describes this artificial term as doctors’ practice of routinely ordering “extra, non-necessary tests, not because it is reasonable to do so but to prevent the health care provider from being sued later for ‘not performing every test’.”

All of these extra tests,” Glass further explains the argument, create “a huge ‘hidden cost’ [because they are] being ordered (and paid for by someone, usually an insurance company.) In short, tort reform proponents suggest that our country could “lower the cost of medicine… if doctors weren’t so afraid and thus, didn’t have to order all of these unnecessary tests.

The president of Minnesota’s Medical Association, Patricia Lindholm, is a family physician. She told Minnesota Public Radio that “many of us will admit that we sometimes practice defensively, and possibly order more tests than we think are absolutely necessary, because the patient expects the test. Or we’re worried that if we don’t do it, that something bad will happen, not necessarily based on best judgment.”

Physicians have reported to medical surveys, lobbyists, and researchers that they regularly engage in the practice of defensive medicine. MedPage Today recently ran an article about the results of one of the “largest and most comprehensive” surveys to date of U.S. orthopedic surgeons’ approach to practicing medicine. The survey, “which had responses from 1,241 orthopedic surgeons from across the country”, showed that “roughly 30% of tests and referrals they ordered were medically unnecessary, with an estimated annual cost exceeding $2 billion.”

At the American Academy of Orthopaedic Surgeons’ annual meeting this year, A. Alex Jahangir, MD, of Vanderbilt University indicated that “large numbers of procedures and consultations were mainly aimed at reducing physicians’ exposure to liability suits.”

Alarming statistics emerged from this survey: 70% of the polled surgeons “indicated they had reduced the number of high-risk patients they had taken on in the past five years, and 84% reported reducing the number of high-risk services or procedures they performed.”

So what happens to these high-risk patients that surgeons have been refusing to treat? Are doctors reinventing the definition of the standard of care required by a “reasonably prudent physician acting in the same or similar circumstances”? Ben Glass’ article begins this question.

The law of medical malpractice only requires that a doctor practice in accord with the ‘standard of care’… When a doctor does or fails to do something required by the standard of care, then he or she is negligent. If harm results from that negligence, then he or she is responsible to the patient for that harm.

Ordering unnecessary tests, recommending costly procedures with possibly dangerous side effects, abstaining from treating high risk patients: practicing defensive medicine or medical practice?

When medical students become doctors, they all take the same oath, pledging that they will practice medicine ethically and specifically, that they “will apply, for the benefit of the sick, all measures which are required, avoiding those twin traps of overtreatment and therapeutic nihilism.” Years later, these doctors are readily admitting that they have broken this vow by overtreating patients based upon an unfounded fear that they may be sued.

Tort Reform Supporters’ Proposed Measures:

Glass summarizes in his article the “solution” tort reform supporters provide to the “high cost of defensive medicine” problem: to limit an individual’s “right to sue a wrongdoer” and to obtain a jury trial. They assert that specific measures should be taken “either by imposing additional procedural roadblocks (expert certification before suit, for example) or by creating artificial limits to monetary recovery.”

Even President Obama appeared to have jumped on the tort reform band wagon during his State of the Union address. Minnesota Public Radio’s Elizabeth Stawicki reported: “Even while defending his health care law, the president said he’d be open to ‘medical malpractice reform to rein in frivolous lawsuits’.”

Plaintiffs’ attorneys have taken an opposite view on tort reform. Stawicki reports: “Jim Carey, who heads the Minnesota Association for Justice, says there are already mechanisms in place to curb frivolous lawsuits — judges. He says judges can toss out frivolous cases and sanction the attorneys who bring them.”

Unraveling the myth behind practicing “defensive medicine”

Ben Glass’ article turns the practice of defensive medicine on its head.

Anyone who says he or she routinely engages in defensive medicine is admitting that they practice outside the standard of care. They admit that they routinely engage in conduct that is, by definition in every state, medical malpractice. Indeed, they are admitting that in their discussion with the patient about the next step to take in their health care, they are lying when they disclose the risks and benefits of the proposed treatment.

Moreover, Glass analyzes that:

Any doctor who admits they engage in ‘defensive medicine’ is admitting they are engaging in insurance fraud. Yes, that’s right, insurance fraud. A health insurance company is generally bound by contract to pay only those claims that are reasonable and necessary to treat illness or injury. The practice of “defensive medicine” is, by definition, an admission that two people are being lied to and victimized by fraud: the patient and the insurance company.

Glass suggests that, in reality, doctors practice “defensive medicine” far less than is being reported to the media when addressing the “high costs of health care”.

The only objective, rational way to know whether “defensive medicine” is being practiced is to look at a patient’s actual medical records and have that care reviewed by other “reasonably prudent physicians.”
This is never done. A doctor who says “I practice defensive medicine (i.e. I lie to the patients and defraud the insurance company) never says “and here are my records to prove it.” How could they? They would go to jail.

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