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 certainly led them to believe that he agreed that we need to “scale back the excessive defensive medicine” in this country.

Let us not pretend that there is no defensive medicine in this country. But we have to take out of the medical malpractice equation three kinds of defensive medicine: (1) tests and evaluation that are actually 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 necessarily recommend).
With respect to the defensive medicine that is actually good for the patient, it is certainly true that 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 little risk, so while they might be ‘defensive,” they are also a good 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 doctors are motivated. I think more doctors engage in defensive medicine because they are motivated by making sure they do not miss something with their patient, not because they fear lawsuits. The argument between medical malpractice lawyers and doctors in this regard is somewhat 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 a pretty bad 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 are going to pick their patient over their own liability risk that is covered by malpractice insurance.

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