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Medical Malpractice Lawsuits: How Strong Is the Link to Defensive Medicine?

According to Harvard University economist Amitabh Chandra, annual jury awards and legal settlements involving doctors amount to $3.6 billion, a drop in the bucket in a country that spends $2.3 trillion annually on health care.

Medical malpractice reform advocates claim that this does not account for defensive medicine. They rely in part on 2005 JAMA study that found that over 90 percent of doctors admit to practicing defensive medicine. President Obama’s speech to the AMA last week led them to believe that he agreed that we need to “scale back the excessive defensive medicine.”

Let us not pretend that there is no defensive medicine. But we have to take out of the medical malpractice equation three kinds of defensive medicine: (1) tests and evaluation that are good for the patients, (2) additional treatment that is motivated, not by fear of lawsuits, but by fear of harm to the patient, and (3) patient induced defensive medicine (i.e. patient seeks tests doctor would not recommend).
Regarding the defensive medicine that is good for the patient, the cost/benefit analysis weighs in favor of some tests not being taken. But there are a lot of tests and other care that carries minor risk, so while they might be ‘defensive,’ they are also an excellent idea. If defensive medicine includes cautious and careful, sign me up for some defensive medicine.

The latter question I think depends on how you think it motivates doctors. I think more doctors engage in defensive medicine because they are motivated by making sure they do not miss something with their patients, not because they fear lawsuits. The argument between medical malpractice lawyers and doctors is paradoxical: malpractice lawyers say doctors practice defensive medicine because they love and care about their patients, while doctors argue that doctors (presumably doctors other than the one making the argument) order- with cold blood – tests that they know are bad for a patient, just to save their own skin. To me, this is more ironic than any of the examples that Alanis Morissette gives in that song. (Note: this is not a high bar to clear. Morissette’s song “Ironic” does not adhere to the etymological definition of “ironic” unless it is modified by the word “cosmic.”)

My view has always been that it takes an immoral person to order medical care they think will, on balance, hurt a patient, just to save themselves from a malpractice lawsuit for which the vast majority of doctors have medical insurance. The vast majority of doctors—including those correctly accused of medical malpractice—are good people who will pick their patients over their own liability risk that malpractice insurance covers.

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