Political Misdiagnosis: The Myth of “Defensive” Medicine.

There has been a myth put forward that suggests that doctors perform unnecessary procedures to protect themselves from malpractice suits, thereby driving up medical costs for all of us.  This myth is pervasive and persistent.  If true, such a narrative could justify political pressures to limit malpractice suits as part of a strategy to reduce medical costs.  But, the evidence shows it is false.  What is the evidence?

The non-partisan Congressional Budget Office (CBO) could find no per capita difference in health care spending when looking at states that had imposed limits to tort damages awardable in medical malpractice cases when it looked into the matter over a decade ago.  Let’s reflect on this a moment.  This means that limiting the recovery that injured plaintiffs get in malpractice suits has no statistical impact on how much is spent on health care.  If the idea of “defensive medicine” – that doctors perform additional, unnecessary, expensive procedures to protect themselves from risks of malpractice suits – means anything, it must mean that when the risk of such suits is lowered, there is less need for defensive medicine.  Yet, the CBO stated: “CBO could find no statistically significant difference in per capita health care spending between states with and without malpractice tort limits.” Congressional Budget Office, Cost Estimate for H.R. 5, Health Act of 2003 (March 5, 2003) (Ordered by the House Committee on the Judiciary).  Available at: www.cbo.gov.

Now the preliminary opinion of the CBO has been vindicated by a private study published today (October 16, 2014) in the prestigious New England Journal of Medicine. N Engl J Med 2014; 371: 1518-1525.  The authors (Daniel A. Waxman, M.D., Ph.D., Michael D. Greenberg, J.D., Ph.D., M. Susan Ridgely, J.D., Arthur L. Kellermann, M.D., M.P.H., Paul Heaton, Ph.D.) in their article “The Effect of Malpractice Reform on Emergency Department Care” conclude: “Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measure by imaging rates, average charges, or hospital admission rates.”  The study was funded by the Veterans Affairs Office of Academic Affiliations and others.

We are once more reminded of the story of Abraham Lincoln who asked a man: “How many legs does a pony have?”  “Four,” the man answered.  “And if you call the tail, a leg, then how many?”  “Well, I guess, five then,” the man said.  “Not so,” Lincoln replied, “because calling a “tail” a “leg,” doesn’t make it so!”  So it is with statistics about medical care and our justice system in the super-heated rhetoric of politics.  No matter how many times you call “defensive medicine” a cost of our justice system doesn’t make it so!  The myth of defensive medicine is simply not borne out by the evidence. 

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