As the debate continues about health care reform, one of the topics that is discussed is "tort reform." Republicans 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 medicine." Proponents of tort reform argue for a limited right to sue a wrongdoer, either by imposing additional procedural roadblocks (expert certification before suit, for example) or by creating artificial limits to monetary recovery.

According to the argument in favor of imposing additional limits on patient's rights, doctors routinely order extra, non-necessary tests, not because it is reasonable to do so but to prevent the health care provider from being sued later for "not performing every test." There is a huge "hidden cost," the argument goes, to all of these extra tests being ordered (and paid for by someone, usually an insurance company.)  We could lower the cost of medicine, tort reform proponents argue, if doctors weren't so afraid and thus didn't have to order all of these unnecessary tests.

It is an almost perfect argument because it is so hard to come up with facts to argue against it. It sounds bad. It almost sounds logical. But, in fact, whenever you hear the argument made it is always in this form: "the estimated cost of defensive medicine is...."

I suggest that when someone makes an argument that tort reform is necessary to prevent the huge expense of so-called defensive medicine that we look at the issue objectively. Because the practice of defensive medicine is contrary to existing, well-established practice and law, the proponents of that argument bear the burden of proof.

It is easy to throw out huge numbers, use "junk" in front of "lawsuit" every time you mention malpractice and demonize patients and their lawyers. Let's ask for the facts.

First, tort law does not require perfection. The law of medical malpractice 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 physician 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.

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, and recommends a treatment. The standard of care requires that a doctor explain to the patient both the risks and the benefits of the proposed course of treatment. Ultimately, it is the patient, being fully advised, who makes the decision as to the course of treatment.

So-called "defensive medicine" should be defined as a test 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. The fact that a test is run but turns up a negative result (i.e. no new problem is disclosed) does not mean the test was not a reasonable course of action at the time. Thus, the fact that a test turns up a "negative" result does not mean the test was an act of "defensive medicine."

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?

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.

Second, any doctor who admits they engage in defensive medicine is admitting they are engaging in insurance fraud. Yes, that's right, insurance fraud. A health insurance company is generally bound by contract 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.)

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. 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 jail.

The next time you hear a doctor asserting 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 doesn't happen.

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?"

Ben Glass
Connect with me
Ben Glass is a nationally recognized Virginia injury, medical malpractice, and long-term disability attorney