The Myth of Defensive Medicine

Are doctors overloading patients with unnecessary tests to avoid possible malpractice claims, and driving up the cost of medical care as a result? Is the solution to limit the ability of patients who are victims of medical errors to hold doctors and hospitals accountable for their mistakes?

First of all, while some doctors may order unnecessary tests as a result of a variety of motives, studies do not show that so-called “defensive medicine” is a widespread or significant phenomenon.

A Congressional Budget Office (CBO) report released October 9, 2009, found that there is no evidence of defensive medicine in private managed care systems, yet there is evidence of over-testing among Medicare patients. Patients in those two sectors are both covered by the same malpractice laws, so the comparison makes it clear that the solution to over-testing is not to take away victims’ legal rights but to manage medical charges more effectively.

The most common limit on victims’ rights – limiting joint and several liability, which has been enacted in at least 40 states – actually drives up costs because it “may increase the volume and intensity” of physician services.

The CBO report notes that “Imposing limits on [the right to sue for damages] might be expected to have a negative impact on health outcomes.” CBO cites a study that finds that restricting the right to seek compensation for malpractice would lead to a .2 percent increase in the nation’s overall death rate. That means an additional 48,000 Americans killed and more than 400,000 injured by medical malpractice over the next ten years.

Even if all the possible limits and restrictions on malpractice liability were enacted, the savings would represent only half a percent of the nation’s health care costs. That figure does not actually represent a “net” savings, of course, because the report does not quantify the added costs created by removing an important incentive to provide safe care.

The facts are clear. Limiting or severely restricting the ability to file a claim in court for medical malpractice denies justice to injured individuals while benefiting big corporations' balance sheets.

To learn the facts about the medical malpractice liability debate, see AFJ’s fact sheets and report on health care courts, and a fact sheet from the Center on Justice and Democracy on the CBO report.