Posted by John Ager on 20 December 2011.
Critics of our legal system often claim that medical malpractice litigation forces health care providers to undertake medical treatment which is not useful or necessary in order to stave off lawsuits by patients. When one looks at this proposition more carefully, however, it really makes little sense.
In order to prevail in a medical malpractice case, the patient has to prove that the treatment provided by a health care provider fell below the applicable standard of care. The standard of care is generally defined as what a reasonable health care provider would do, or not do, in the same or similar circumstances A health care provider’s decisions are driven by the information available at the time. Where, for example, diagnostic tests might help rule out a potentially emergent, life-threatening condition, such tests must be ordered, even if the likelihood of such a condition is very low. The conduct of a health care provider who fails to order such tests falls below the standard of care. Where potential conditions have less dire consequences, a risk benefit analysis needs to be undertaken to guide the treatment provided.
Some suggest that angry patients with bad outcomes are more likely to sue if they did not get all of the treatment they thought they should have received. Angry patients, however, do not spawn litigation. Bad medicine does. As I have discussed in previous posts, medical malpractice lawsuits are very expensive to prosecute and a lawyer simply can’t afford to take a meritless claim to trial, no matter how angry the client or how bad the outcome. Any lawyer who takes cases on this basis is a lawyer who will not be in business very long. Moreover, just because a test or procedure might have prevented a bad outcome, does not mean it should have been given. A jury has to decide, based on expert medical testimony, that something more should have been done and also that doing so would have made a difference. This is a tall order in most cases.
The notion that health care providers are performing meaningless procedures and tests also has alarming ethical implications. If a test or procedure has no diagnostic or treatment value whatsoever, it is unethical for a health care provider to perform it. If this type of defensive medicine is a prevalent as some would suggest, it would not speak well of those entrusted with our care. Personally, I believe that most health care providers strive to maintain the highest possible ethical standards in their practices.
Some also suggest that defensive medicine contributes significantly to the high cost of health care, claiming that unnecessary procedures and tests account for as much as 36% of all health care spending. Researchers at the Harvard School of Public Health, however, thought those numbers were contrived and conducted their own study from which they concluded that all medical malpractice health care related costs, including the practice of defensive medicine, account for less than 2.4% of overall spending.
Anecdotal evidence suggests that greed may be the driving factor in the practice of defensive medicine as health care providers can earn more by performing more tests and by sending patients for procedures to facilities in which they have an economic interest. Again, I believe that those motivated by such interests are in the minority
Just like the best offense often is a good defense, defensive medicine can be good medicine. The notion that litigation is the driving force behind it , however, is, well, offensive.