If I told you that, every week, between 4,200 and 8,400 people were poisoned by contaminated food, would you say restaurants needed special protection from negligence lawsuits because fear of such lawsuits would force them to clean too much? “Defensive cleaning,” so to speak.
If I told you that, every week, between 4,200 and 8,400 people were killed in fires caused by bad electrical wiring, would you say electricians needed special protection from negligence lawsuits because fear of such lawsuits would force them to insulate too much? Call it, “defensive wiring.”
Of course you wouldn’t. Thankfully, I made those numbers up: combined, foodborne illnesses and home electrical fires kill about 3,500 people per year. That’s one-hundredth as many people as the 210,000 and 440,000 patients killed each year by medical malpractice. But the “defensive medicine” myth — the claim that, when doctors are worried about getting sued, they start running unnecessary tests and doing unnecessary procedures, thereby increasing the health care costs for everyone — just won’t go away as a justification for “tort reform.”
The whole notion of “defensive medicine” has always been silly: doctors are held responsible for malpractice when they don’t do something required by the standard in the field that would have helped the patient. Doctors can’t be held accountable for not doing something that wouldn’t have made a difference. The notion has also always been misleading, too: as the Congressional Budget Office said a decade ago, “some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians…,” a point repeatedly echoed by others even in the medical field like Atul Gawande.
Yet, a quick search of case law reveals the myth’s pervasive, ongoing effect on the legal system. There are the obnoxious defense “experts” deliberately making speeches in front of juries (Pin v. Kramer, 41 A. 3d 657, Conn. 2012), legislatures enacting special laws to hinder malpractice victims (Jackson v. HCA Health Services, 383 SW 3d 497, Tenn. 2012), and federal judges who should know better than accepting the myth at face value when deciding federal tort law (Gipson v. US, 631 F. 3d 448, 7th Cir. 2011).
Lately, three more studies out this summer have proven, again, that “tort reform” — a euphemism for denying malpractice and negligence victims their fair day in court — actually makes doctors do a worse job and makes health care cost more. One study showed damage “caps” cause an increase in preventable medical problems, i.e., “We find evidence that reduced risk of med mal litigation, due to state adoption of damage caps, leads to higher rates of preventable adverse patient safety events in hospitals.” The authors further note “there is no evidence that limiting med mal lawsuits will bend the healthcare cost curve, except perhaps in the wrong direction.” Another study showed “no evidence that the adoption of damage caps increased physician supply in nine new-cap states, relative to twenty no-cap states.”
And then there’s the new RAND study in last week’s edition of the New England Journal of Medicine, which found that laws which gave special treatment to Emergency Departments at hospitals did nothing to change costs or patient care: “Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates.”
This is an issue near and dear to my heart: five years ago, the open-minded physicians at Emergency Physicians Monthly were kind enough to host a debate between me and their pseudonymous blogger over the effect of malpractice liability on access to emergency medical care. As I noted there, even the American College of Emergency Physicians’ own analysis showed that states which had tort reform tended to have inferior “access to emergency care” scores.
None of this is really news: a year ago I collected several studies showing that medical malpractice payments are at their lowest level ever, $3.14 billion, one-tenth of 1 percent of national health care costs, and that the practice of so-called “defensive medicine” is just the same regardless of any tort reform in their state.
It’s hardly brain surgery to recognize that medical service providers are just like everyone else, and that, if they aren’t held to the same basic standards of responsibility that everyone else is — i.e., if you do something unreasonable, you’re held accountable for the harm — they just won’t do it.