The Reality of the High Cost of Defensive Medicine

Ben Glass — Sun, 13 Sep 2009 07:16:26 GMT

As the debate ramps up regarding health care reform/insurance reform, one of the subjects that is brought up more and more often is the notion that we need to change the medical malpractice laws, on a national level. Conservatives argue for it and even the President, in a recent address, suggested that aspects of tort reform were on the table in order to fight the high cost of medical care.

The Argument that Defensive Medicine Exists to Protect from Lawsuits

Supporters of malpractice reform argue for limiting the right to sue a doctor, nurse or hospital, either by imposing additional legal roadblocks (expert certification before suit, for example) or by creating artificial limits to monetary recovery, usually by capping compensation for pain and suffering. According to their argument in favor of reform of patient’s rights, health care providers routinely order extra, non-necessary tests, not because it is reasonable to do so but to prevent the physician from being sued later for “not performing every test.” There is a huge cost to society, the argument goes, to all of these extra medical tests being ordered. "The country could lower its cost of medicine,” proponents argue, if health care providers weren’t so afraid of being sued, and thus, didn’t have to order all of these unnecessary tests.

It sounds like a pretty argument when spoken, in part because it is so hard to come up with facts to argue against it. It almost sounds logical. But, in fact, whenever the argument made it is always begins this way: “the estimated cost of defensive medicine is….”

Why is It That They Always Talk About the Estimated Costs of Defensive Medicine?

I suggest that when someone makes an argument that tort reform is necessary to prevent the “huge expense” of so-called defensive medicine” that that we don't let them get away with the "soft facts" they tend to use. Because the practice of defensive medicine is contrary to existing, well-established practice and law, the burden should be on the proponents of the existence of “defensive medicine” to prove that it even exists.

ByLaw, All Doctors are Required to Practice According to the Standard of Care

First, medical malpractice law does not require perfection. The law only requires that a doctor practice in accord with the “standard of care.” The “standard of care” is simply that care that would be required by a “reasonably prudent health care provider acting in the same or similar circumstances.” It is that care that a consensus of “reasonably prudent doctors” would have engaged in with the information they had at the time the decision for care occurred. When a doctor does or fails to do something required by the standard of care, then he or she is negligent.

If harm results from that negligence, then he or she is responsible to the patient for that harm.

A Doctor is Required to Talk to the Patient About Risks and Benefits

By law, doctors and patients act as a team. The doctor does an assessment of the situation, takes into account the information reasonably available at the time, maked a working diagnosis and recommends a course of action. The standard of care requires that a doctor explain to the patient both the risks and the benefits of the proposed course of treatment. This is the law of "informed consent." Ultimately, it is the patient, being fully advised, who
makes the decision as to the course of treatment.

Listen Very Carefully When They Talk About the Cost of Defensive Medicine

Those who argue that defensive medicine drives up the cost of health care in America define the practice as a medical test or procedure that is ordered that has no reasonable basis for giving the physician-patient team information that would be useful to the decision making process of the patient-doctor team. It is ordered, they say, simply to protect the doctor.
In order to believe that there is a true, measureable, cost of so-called defensive medicine, one would first have to ask: how do we know it is actually happening? Those that are “reporting” that they engage in “defensive medicine” are the doctors who have a vested interest in the argument or their medical associations or lobbyists. They “report” practicing defensive medicine but how should a rational person actually measure this or test the assertion?

Are These Doctors Admitting That They Are Violating the Standard of Care?

Think about it. Anyone who says he or she routinely engages in defensive medicine is admitting that they practice outside the standard of care. They admit that they routinely engage in conduct that is, by definition in every state, medical malpractice. Indeed, they are admitting that in their discussion with the patient about the next step to take in their health care, they are lying when they disclose the risks and benefits of the proposed treatment.This is astonishing.

Are They Also Admitting to Insurance Fraud?

Second, any doctor who admits they engage in the practice of “defensive medicine” is saying they are engaging in outright insurance fraud. A health insurance company is generally bound by contract or plan language to pay only those claims that are reasonable and necessary to treat illness or injury. The practice of “defensive medicine” is, by definition, an admission that two people are being lied to and victimized by fraud: the patient and the insurance company. (Either that or the patient and doctor are conspiring to defraud the insurance company.)

Show Us the Records

The only objective, rational way to know whether “defensive medicine” is being practiced is to look at a patient’s actual medical records and have that care reviewed by other “reasonably prudent physicians.” This is never done by tort reform proponents. A doctor who says “I practice defensive medicine (i.e. I lie to the patients and defraud the insurance company) never says “and here are my records to prove it.” How could they? They would go to prison.

The next time you hear any doctor assert that he or she engages in the fraudulent, improper practice of “defensive medicine” ask him or her if they will produce the actual medical records (patient identifiers removed) to prove the claim. Have them tell us that they had a face to face conversation with the patient (as is required under the standard of care) and told the patient “the test I want to order has no reasonable value to the decision-making process in your care.”

It simply doesn’t happen.

Every Patient Needs to Take Responsibility for Their Own Care and Ask This Question

I suggest that in truth, there is very, very little so-called “defensive medicine” actually practiced in the United States. When sent off for testing a patient should always ask and demand an answer for this question: “doctor, what is the scientific and medical basis for this test? What are the odds that something important will be missed if I don’t have this test?”

Originally posted at InjuryBoard by Ben Glass

Is "SueEasy.com" for Real?

Ben Glass — Tue, 23 Oct 2007 20:34:13 GMT

The Wall Street Journal Blog had a post about SueEasy.com last week.
Of course it blasted the site as indicative of today's "sue-happy" culture.

But is the site for real? Can't tell yet. It looks to me like something a tort reformer would put up just to shoot at (and get tthe WSJ to blog about!).

No legitimate trial lawyer would be involved in such a stupid site. No legitimate plaintiff would use it? We condemn the site if in fact its for real. For now, it looks like a pure fake, though.

Originally posted at InjuryBoard by Ben Glass

New Tort Reform Video You Must See

Ben Glass — Thu, 19 Jul 2007 08:49:03 GMT

For years the insurance industry and big business has cornered the market on the 'tort reform" discussion. They have spent millions and millions of dollars to poison the minds of the American jurors.

This new tort reform video, recently produced (and, frankly, not yet finished) tells the other side of the story.

In Virginia we are starting to see an increase in personal injury verdicts, after years of 'below average' decisions by juries. Most jurors have now seen through the rhetoric and lies of the insurance industry and those in government who basically are in office to protect the profits of big business.

Originally posted at InjuryBoard by Ben Glass

Immunity for Space Travel Bill on Governor's Desk

Ben Glass — Sun, 25 Mar 2007 06:51:57 GMT

I posted earlier about this inane idea to pass a law to immunize from liability these groups who are developing commercial space flights. Now the bill sits on the Governor's desk and I suppose he is seriously considering one more immunity bill for Virginia.

(I'm not against space flight for real people. Great if you can afford it, I imagine. )

What I do think is wrong is for the state to grant immunity from lawsuits to ANY business. The question must be asked: why grant immunity for lawsuits for injuries to one man's business and not another? This MARS group is certainly in this business to make a profit. Same as me and I have no problem with that. That's why any of us start a business, the make a profit.

Tort law hold individuals and businesses accountable for their negligence and carelessness. (It was tort law that forced the medical profession to correctly mark the "nitrogen" and "oxygen" valves on the anesthesia machines after people were dying because folks couldn't hook the machines up correctly.)

Granting immunity to anyone absolves them, in advance, for their carelessness and reduces the incentive to be careful (which is one of the primary reasons for tort law.

Now that's a great gig if you can get it.

Originally posted at InjuryBoard by Ben Glass

Caps and Malpractice Rates--no relationship

Ben Glass — Tue, 13 Mar 2007 02:33:33 GMT

Another study shows that there is no relationship between "caps" on jury verdicts in medical malpractice cases and malpractice insurance rates.

Oregon has the lowest malpractice claims of any state and the state high court abolished caps seven years ago.

Caps on verdicts only hurt the most seriously injured yet there is no compelling evidence that the imposition of caps does anything for malpractice rates. So, those that are most seriously hurt by malpractice become victims again by caps which prevent full recovery and restoration of dignity.

Meanwhile, the medical malpractice insurance companies are laughing all the way the bank.

Originally posted at InjuryBoard by Ben Glass

Northern Virginia Personal Injury Lawyer - Tort Reform

The Reality of the High Cost of Defensive Medicine

Is "SueEasy.com" for Real?

New Tort Reform Video You Must See

Immunity for Space Travel Bill on Governor's Desk

Caps and Malpractice Rates--no relationship