The Real Cost-Benefit Equation for Defensive Medicine

Ellis Weeker

Ellis Weeker , MD, FACEP

Published May 23, 2012

In the United States many people feel it is their God given right to sue anyone, anytime for anything. Whether you are successful or not may be another story. So what are the cost implications for healthcare in the United States? Few other developed countries rely upon this method for resolving malpractice issues. What is the cost-benefit equation? To protect themselves, American physicians practice what is called defensive medicine designed to ward off the attacks of plaintiff’s attorneys. There was a recent study which concluded that the additional cost for defensive medicine in this country was only about 2.4 percent for 2008. That is a very low number if you have anything to do with healthcare, but this is at least a number that someone has come up with to quantify the cost.

If I were an attorney (and I am not), I would argue that the value of malpractice cases are many: injured parties should be compensated in some manner for material loss of work, comfort and pain and suffering; expenses for rehabilitation and subsequent health maintenance should be paid by the injuring party; attorneys who take on these cases must be compensated for their diligence; cases won by defendants act as a deterrent to further injuries to patients and improve the quality of health care; and whether there is fault or not should be decided by an independent analysis of the case-like a jury.

As a physician, I recognize the value of improving the quality of health care through the identification of errors. It is a necessary step to improve care. I also appreciate the need to compensate injured patients. I even recognize that attorneys should be paid when they are on contingency (though not quite as much as they are getting). Yet, it is the excessive cost of the current medical liability system which is out of balance with the benefits. This bothers me and should bother the government which is paying for a large portion of the expense of defensive medicine. For some reason this is being ignored.

Defensive medicine is usually defined as ordering unnecessary tests, biopsies, surgeries and admissions to hospitals in the hope that this will give greater credence to a later argument that the doctor did all he or she could do to benefit the patient. We even order more drugs which have minimal advantage to the patients taking them for the same reason. In addition, we over-document in our charts and over-consult specialists. All of this introduces inefficiencies into the system. We are also forced to pay higher malpractice premiums for this practice.

Being this frightened of being sued could possibly mean that patients are more protected as providers are more careful, but over ordering tests, medication, surgeries and admission has its own risks. For example, ordering excess imaging studies exposes people to unnecessary radiation. Prolonging the lives of people with terminal illness and giving futile care causes more pain and suffering in cancer therapy.

As a physician, I really don’t know anyone who doesn’t practice some degree of defensive medicine. It is pervasive enough as to constitute a “risk tax” on everything we do in medicine. Yet how you would accurately quantify something this extensive is beyond my understanding. Every day I practice I see medical personnel making decisions which take the fear of malpractice into account. When in doubt, order more.

Should we not recognize that people who have been harmed should receive compensation for their suffering? Should we not make sure they receive enough money to support themselves during the remaining parts of their lives? Should we not pay attorneys for their labor? Well, the answer is yes to all of these questions. The point is it should be within reasonable bounds and not accompanied by the excesses of the current system. It should also not create such anxiety in physicians and other providers that they practice defensive medicine.

The real issue is how much society should pay for all of the additional testing and treatment which results from fear of being sued in a malpractice case. What we really need is a system of compensation which is similar to workmen’s compensation. We will never eliminate the need to remunerate patients who come to harm, but many bad outcomes are not the fault of physicians. Moreover the compensation should be in proportion to the injuries patients sustained according to a predetermined system of payment-not the whim of a lay jury. We should also be able to afford the methodology of payment.

Workmen’s compensations laws address the issues we are struggling with in medicine today. Sometimes things do not go well in industry and there are injuries. Often these are not the fault of the employer. We have a no-fault system that compensates injured workers and a separate system that investigates and fines companies that are at fault. Because of these investigations and fines companies improve their practices. Financial compensation is based upon a defined schedule of payments commensurate with the injury or even loss of life. Insurance companies and states establish reserves and premiums based upon loss experience. If we were to establish a similar system in medicine, it would do a more efficient job of addressing malpractice in our country and reduce defensive medicine with its terrible waste and excessive cost.

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