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).
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I’ve written extensively about medical malpractice myths, including posts about defensive medicine, the realities of malpractice litigation (in which it’s more likely that a negligent doctor will evade responsibility than it is that an undeserving patient will be compensated), and the tricks played to deny injured patients their legal rights, like concealing evidence and intimidating expert witnesses. Just last month I wrote about the hard data on malpractice lawsuits in Pennsylvania.

Why so much focus on malpractice law? Because it seems to be the area of plaintiffs’ litigation most heavily shrouded with myths and misunderstandings. Just last month, one of the New York Times’ bloggers, herself a medical doctor, began a column on the “disturbing” trend of doctors breaking the white coat code of silence by criticizing one another. She gave this example: a physician friend had been recently named in a lawsuit in which, they claim, “there were no discernible errors in the care she provided,” solely because a subsequent physician criticized the first physician, saying they were “shocked” by the care provided and that the patient “could have died.”

I could go on at length about how absurd that factual scenario was — a patient can’t file, much less win, a malpractice lawsuit with “no discernible error;” rather, the patient’s lawyer needs to prove malpractice by way of expert physician testimony — but there’s no need to do that. Just re-read that last paragraph: if the doctor-blogger and her friend really wanted to find the “discernible error,” they could have merely asked the second doctor why he or she was “shocked.”

Such is the low level of debate in the malpractice liability arena. A columnist or a doctor says something dumb, like asserting there’s “no discernible errors in the care” that the next doctor finds “shocking,” and patient advocates and plaintiff’s lawyers scramble to explain how the nitty-gritty of certificates of merits, damage caps, jury instructions, and the like make it impossible for cases to prevail unless they are “slam-dunk” cases with only the very worst outcomes for the patients.

Three stories from last week highlight many of the same issues I keep coming back to on this blog:
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For years, I’ve written about the prevailing myths about medical malpractice law, from the falsehoods about defensive medicine to the extraordinary economic damage caused by malpractice itself. Contrary to what the insurance companies and hospital lobbying groups keep saying, “defensive medicine” is simply a myth (if a given test didn’t make a patient substantially safer, doctors wouldn’t gain anything by doing it). The damage caused by malpractice — even when measured in purely economic terms, ignoring the non-economic harms and losses — dwarfs the cost of the malpractice legal system, including all the lawyers and all the settlements and verdicts.

Recently, the new statistics for medical malpractice filings and jury trials in 2012 were released, and those numbers revealed a couple of important points.

First, the odds at trial are heavily stacked against patients. In 2012, 133 malpractice cases went to a jury trial, and 79.7 percent of them resulted in defense verdicts. I suppose there could be valid reasons why 4 out of every 5 jury verdicts go in favor of the doctor or hospital — maybe the strongest cases are all being settled before trial, leaving only the weakest cases behind — but it’s hard to say that with a straight face when those figures mean that malpractice defendants have better odds winning in a courtroom than the odds a casino has winning its own games.

It’s hard to deny that plaintiffs are losing trials left and right thanks to years of relentless tort reform propaganda designed to mislead jurors about the nature of malpractice and its effects. It sure seems like some counties have particular problems; consider this paragraph from a recent Legal Intelligencer article:
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In contrast to the demanding world of blogging, where every typo results in an avalanche of criticism, the beauty of speaking on network television in quaint soundbites and writing 750 word op-ed columns in national newspapers is that you rarely have to explain yourself. You will rarely, if ever, be put in the position where you are expected to fully explain your argument, and, hiding behind the presumed credibility of established newspapers and networks, it isn’t likely that you’ll face a thoughtful critique of your argument. Just say something and, ipse dixit, it’s true. (There are, of course, rare exceptions, like when you make up Bob Dylan quotes, forgetting the legions of obsessed Dylanites out there.)

What else explains how Sanjay Gupta of CNN fame thought he could stick this whopper into his New York Times op-ed piece:

Certainly many procedures, tests and prescriptions are based on legitimate need. But many are not. In a recent anonymous survey, orthopedic surgeons said 24 percent of the tests they ordered were medically unnecessary. This kind of treatment is a form of defensive medicine, meant less to protect the patient than to protect the doctor or hospital against potential lawsuits.

Herein lies a stunning irony. Defensive medicine is rooted in the goal of avoiding mistakes. But each additional procedure or test, no matter how cautiously performed, injects a fresh possibility of error. CT and M.R.I. scans can lead to false positives and unnecessary operations, which carry the risk of complications like infections and bleeding. The more medications patients are prescribed, the more likely they are to accidentally overdose or suffer an allergic reaction. Even routine operations like gallbladder removals require anesthesia, which can increase the risk of heart attack and stroke.

Isn’t it amazing how Dr. Gupta just knows that every last medically unnecessary treatment is a “form of defensive medicine?” There’s a word for Dr. Gupta’s argument. To find that word, let me quote Dr. Atul Gawande in The New Yorker three years ago, himself quoting a discussion among surgeons about defensive medicine: 
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I haven’t written much about medical malpractice lately because, apart from a couple unique cases, it doesn’t feel like there is anything new to say. Medical malpractice is still responsible for less than one-half of 1% of all United States healthcare costs, and it is still the case that even “hellhole” jurisdictions like Philadelphia are nonetheless still so hostile to patients’ lawsuits that three-quarters of injured patients walk away empty-handed from jury trials. (I would be remiss not to mention this recent study further discrediting the “hellhole” data about Philadelphia’s courts.)

But now I have some good news to report: it seems that many of the major medical societies are moving away from blaming lawyers and lawsuits for every problem under the sun, and are starting to take matters into their own hands to reduce the overall cost of healthcare while still protecting patient safety. The new campaign, “Choosing Wisely,” unveiled this week, was organized by the ABIM Foundation, part of the American Board of Internal Medicine (which has its headquarters only a couple blocks from my office). The ABIM Foundation brought together a number of the major physician specialty societies to come up with lists of five things — typically diagnostic tests — that doctors in each specialty shouldn’t do because they are wasteful and unnecessary.

The part that pleasantly surprises me is how the medical societies have all resisted the urge to trot out the “defensive medicine” line, the claim that doctors wouldn’t do any of these tests if it weren’t for the potential for medical malpractice liability.  See, for example, this NPR story and this JAMA article, neither of which quotes a doctor blaming lawyers for every wasteful practice in medicine.

As I have argued many times before on this blog, I think “defensive medicine” is mostly a bunch of hooey.  Contrary to what you hear from some insurance companies and tort reform organizations, medical malpractice lawsuits don’t impact access to care, and don’t cause doctors to order unnecessary tests. To see why lawsuits don’t result in “defensive medicine” requires a bit more understanding about how malpractice lawsuits work: 
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Through Andy Barovick’s Twitter feed, I saw John Tierney’s recent column in the New York Times about playground equipment:

[S]ome researchers … question the value of safety-first playgrounds. Even if children do suffer fewer physical injuries — and the evidence for that is debatable — the critics say that these playgrounds may stunt emotional development, leaving children with anxieties and fears that are ultimately worse than a broken bone.“Children need to encounter risks and overcome fears on the playground,” said Ellen Sandseter, a professor of psychology at Queen Maud University in Norway. “I think monkey bars and tall slides are great. As playgrounds become more and more boring, these are some of the few features that still can give children thrilling experiences with heights and high speed.”

After observing children on playgrounds in Norway, England and Australia, Dr. Sandseter identified six categories of risky play: exploring heights, experiencing high speed, handling dangerous tools, being near dangerous elements (like water or fire), rough-and-tumble play (like wrestling), and wandering alone away from adult supervision. The most common is climbing heights.

Various tort reformers have long used playground safety to attack personal injury lawyers. Playgrounds are boring these days, the story goes, because evil trial lawyers have forced cities and schools to prioritize safety over fun. The new line these days is that these excessively safe playgrounds aren’t actually safer, because they secretly cause long-term damage so subtle it can barely be perceived.

We’ve seen that line before with the “defensive medicine” meme. Never mind the favorable link between patient-friendly malpractice laws and the availability of treatment; tort reformers claim that doctors exposed to accountability will ignore the basic dictates of economics and, instead of working to reduce their liability by reducing the damage they cause, will inexplicably spend their time and money treating diseases that don’t exist.

Same goes for playgrounds. Tort reforms now say playgrounds are too safe because school administrators, for some unexplained reason, don’t worry about serious injuries — the only thing that can prompt any significant monetary liability — but rather phantom dangers manufactured by trial lawyers.

I think my favorite line from Tierney’s article is this one:

While some psychologists — and many parents — have worried that a child who suffered a bad fall would develop a fear of heights, studies have shown the opposite pattern: A child who’s hurt in a fall before the age of 9 is less likely as a teenager to have a fear of heights.

It logically follows, then, that we could rid society of acrophobia if we passed a law requiring all children be thrown from a height of no less than six feet at least once during adolescence. Perhaps we should  require that, if the child didn’t break a bone the first time around, they be shoved off again and again until they “learned” to be fearless in the face of an unnecessary danger.
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The print edition of September’s Emergency Physicians Monthly features a debate between yours truly and WhiteCoat, EPM’s in-house blogger on the subject, “Does Medical Malpractice Liability Impact Access To Emergency Care?”

I’ve posted the debate below, with footnotes added to show my sources. I believe WhiteCoat will update his with sources when he gets

Professor Richard Epstein of the University of Chicago published an opinion piece in yesterday’s Wall Street Journal on medical malpractice.

"Embarrassingly ignorant" would be a charitable description. Eric Turkewitz calls it "flat out false."

How bad was it? Turkewitz caught two outright falsehoods:

American courts commonly think it proper for juries to infer medical negligence from