Yes Virgina, There is Defensive Medicine
Like John Gotti’s lawyer denying the existence of organized crime in America, trial lawyers have been denying for years that defensive medicine exists or if it does then it’s not so prevalent as to have any significant economic impact. Strictly defined, defensive medicine is the practice of ordering or performing tests and/or procedures or treatments that are not absolutely medically indicated for the primary purpose of enhancing a defensive posture should there be a bad outcome that results in litigation. In layman’s terms, this is the same thing as “covering your ass.”
Many things in medical practice are straight forward or back and white like taking an x-ray for a suspected broken bone or an EKG for chest pain. But there are huge areas of gray that allow for different priorities and leeway in medical decision making. Often this depends on the doctor’s experience and comfort level and their perception of risk. Perception is the key concept here as this is the driving force for defensive medicine.
Until recently this had not been well studied. But a study in the journal Circulation has found that up to 24% of cardiologists would perform an invasive cardiac catheterization primarily out of concern for malpractice litigation risk. The study was conducted as a national survey of cardiologists using hypothetical patient cases to try and evaluate for any regional differences in practice patterns.
What the study found instead may be part of the answer to why there are so many of these procedures done in the US each year when up to 40% of cardiac catheterizations to evaluate for chest pain are negative, i.e. they find no significant blockages (the other part of this answer is that invasive cardiac procedures are reimbursed at a much higher rate than medical care that is designed to reduce the risk of the development of cardiac disease in the first place).
At a cost of $2,600 each, cardiac catheterization is one of the most expensive commonly performed invasive procedures in the US to the tune of several billion dollars a year. This is real money! The chance to directly affect up to a quarter of this cost is something that the Federal government cannot ignore. But this is exactly what the current administration and Congress have done with the recent health reform legislation which did not include a single section on medical malpractice litigation reform.
Even more than limits on non-economic jury awards for pain and suffering, what is badly needed is a national system of specialized medical malpractice courts to hear cases in front of a panel of medical experts, legal experts, and consumer and patient advocates appointed by the court. The rational for these courts would be that specialized juries are far better equiped to make rulings based on complex medical issues and standards of care then the current adversarial civil court system where a lay jury picked specifically for its lack of knowledge or experience with modern medical practice is called on to decide with side’s prostituted “expert” witnesses they believe more (or which lawyer they like better).
If such specialized courts existed then maybe physicians would be more inclined to practice medicine as they were taught if they know that the legal system can tell the difference between the art of medical practice in the vast gray area of uncertainty and actual medical negligence. Thus far, Obama and the Democrats have missed their opportunity to implement a system that could save billions. Perhaps they wanted to avoid too many fights with the recent health care bill. Maybe not.