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Exposing the Myths Behind ‘Defensive Medicine’

Posted on November 23, 2015 by Kelly Wolford
gavel and stethocope

The medical industry often lobbies for special privileges under the guise of “tort reform.” Medical groups offer horror stories of runaway juries awarding greedy medical malpractice plaintiffs millions of dollars in unwarranted damages.

Without “reform,” the medical community claims, healthcare costs will continue to skyrocket while doctors are forced to practice “defensive medicine” in order to protect themselves against an out-of-control legal system.

However, the reality is far removed from the doom and gloom proclaimed by well-funded medical industry lobbyists. Calls for tort reform are often based on a misunderstanding of how the legal system actually works.

Medical malpractice lawsuits, far from driving up healthcare costs and driving doctors away from places like New York, actually provide an important check on an industry that all too often does a poor job in policing itself and protecting patients.

What Is Defensive Medicine?

One of the most common fallacies promoted by the medical industry is that tort reform reduces the practice of “defensive medicine.” But what exactly does this term mean?

There is no exact definition. However, the basic idea is that doctors may order unnecessary tests or medical procedures out of the fear of being sued. In other words, doctors are supposedly making treatment decisions not based on the medical needs of their patients but out of their own legal self-interest.

For example, medical lobbyists frequently argue that emergency room doctors may order medically unnecessary advanced imaging tests (CAT and MRI scans). They are concerned that they will be sued if they fail to order the test, and a problem is later discovered.

Given these tests are quite expensive, defensive medicine is said to raise overall healthcare spending without improving the quality of care.

Tort reform is supposed to reduce or eliminate defensive medicine by raising the legal bar for any potential medical malpractice lawsuit.

Defensive Medicine Is a Myth

The reality, however, is that defensive medicine is more medical industry myth than fact. This is because physicians often have financial incentives to order unnecessary medical tests, which is unrelated to the legitimate fear of any malpractice liability.

Indeed, the myth of defensive medicine is designed to scare the public into supporting ill-conceived tort reform proposals which limit their ability as patients to seek legal remedies against negligent doctors.

What medical industry lobbyists fail to acknowledge when they speak of defensive medicine is that they are describing unethical practices. Ordering a medically unnecessary test is not simply a waste of a patient’s time and hospital resources.

It is also an illegal act. Most physicians and hospitals deal with Medicare, the largest government healthcare payer. Medicare eligibility rules expressly state that a provider may not seek reimbursement for any procedure which is not “reasonable and necessary for the diagnosis or treatment of illness or injury.”

This means that, if a doctor orders a medical test he or she knows to be unnecessary and then proceeds to bill Medicare, that doctor has violated a law known as the False Claims Act.

It is not a defense for the doctor to say, “But I ordered the test so the patient would not sue me later.” No doctor may receive payment for a procedure that is not intended to address or improve the patient’s health.

Defensive Medicine Is Profitable Medicine

As noted above, defensive medicine is often just an excuse for the medical industry’s habitual over-billing practices. Because Medicare and private insurers reimburse medical providers on a “fee-for-service” basis, there is often little incentive for physicians to contain costs.

Ironically, unlike fee-for-service physicians, most personal injury attorneys work on a contingency basis. This means that they only get paid if they produce a favorable outcome for their clients. This provides important incentives not only to ensure a lawyer acts in a client’s interest, but it also discourages attorneys from taking weak or frivolous cases which lack credible evidence of medical malpractice.

Defensive Medicine Is Not Affected by Tort Reform

A 2014 study published in the New England Journal of Medicine examined the effect of tort reform laws on emergency room care in three states.

The study compared patient-level outcomes, before and after legislation, in states where reforms were enacted with neighboring states which did not adopt such laws.

The study’s authors found that the legal reforms “had little effect” on physician practices. For example, there was “no reduction” in the use of CT or MRI scans in states that adopted medical industry-backed reforms.

Once again, this study suggests that “defensive medicine” is largely a myth. As the study found, doctors do not appear to be ordering tests out of a fear of lawsuits.

It is important to note most medical malpractice cases do not require a lengthy trial. In fact, all but a handful of cases are settled out-of-court. This, again, undercuts the mythology behind defensive medicine and tort reform.

While some doctors may be scared by sensational reports of multi-million dollar jury verdicts, the reality is that malpractice insurance liability limits often keep the majority of cases from ever reaching a jury.

Have You Been Impacted by Medical Malpractice?

While tort reform legislation may not limit the practice of defensive medicine — to the extent such practices exist — or reduce overall healthcare spending, there is no question such laws can curtail an injured patient’s access to the legal system.

This is why, if you or a loved one has suffered any type of injury due to suspected improper care by a physician or hospital, it is essential that you work with an experienced Albany medical malpractice attorney who is passionate about protecting the rights of patients.

A lawyer can review your case, seek the answers you deserve about the care you received and work hard to secure compensation for the harm you have suffered due to medical negligence.

To learn more about your rights and options, contact Powers & Santola, LLP. We can provide a free and confidential consultation about your case.