The flawed concept of 'defensive medicine'

When the topic of controlling healthcare costs comes up, those opposed to single payer reform, and, for that matter, opposed to the Affordable Care Act, frequently cite the need for malpractice reform, often claiming that defensive medicine (ordering unnecessary tests and medical interventions merely to prevent lawsuits) is a major cause of excess healthcare spending.

But an article published last week in the New England Journal of Medicine - "The Effect of Malpractice Reform on Emergency Department Care" - casts doubt that malpractice reform would reduce supposed defensive medicine.

The three states studied – Texas, Georgia and South Carolina – passed laws requiring a much more rigid standard of “gross negligence” for emergency department physicians to be found liable for malpractice. Data available from Texas demonstrates that their reforms did reduce malpractice claim filings by 60 percent, and reduced malpractice payments by 70 percent. Physicians were reassured that they were protected as long as they did not proceed with “conscious indifference” with care that had a “likelihood of serious injury.”

Now that there was no longer a need for CT and MRI scans and hospital admissions that were done only to prevent lawsuits, the level of these presumed defensive medicine measures should have decreased. They did not.

This suggests that these measures were taken for reasons other than simply to prevent lawsuits. A low yield test or procedure is not necessarily a no yield intervention. These are done because there is a real chance, even if at low odds, that the intervention may benefit the patient.

Although it is commonly stated that 3 percent of healthcare costs are due to defensive medicine strictly to avoid lawsuits, that care is more than defensive medicine. It is low yield care. No physician would order a scan just to avoid a lawsuit when it is clear that there is no possibility that the scan will turn up a disorder. You cannot be sued for missing a diagnosis that does not exist. A suit could occur if it were decided to skip a scan that might show a significant but unlikely problem and then the problem became manifest and caused harm that was preventable with earlier diagnosis.

It is therefore reasonable to order such low yield tests after discussing the pros and cons with the patient. If malpractice suits were totally eliminated, there would still be a demand for low yield testing, and therefore there is not much to be saved since most of these interventions will still be done. The NEJM study showed that most physicians believe that defensive medicine is common, but it is actually low yield medicine that is common, and should not automatically be denied simply because it is low yield. A pap smear is a low yield test that will very likely show nothing, but nobody would consider it to be defensive medicine.

The NEJM study leads us to conclude that the concept that there is excessive resource-intensive care provided strictly as defensive medicine should be abandoned and replaced with patient-centered outcomes research to better determine what is of value in healthcare (PCORI in the Affordable Care Act is such an attempt).

We should no longer allow ourselves to be distracted by false promises of healthcare savings through flawed concepts such as defensive medicine. We know what will greatly reduce wasteful spending, and that is a single payer national health program. We must not be distracted from trying to achieve that goal.

Don McCanne, MD, is senior health policy fellow at Physicians for a National Health Program. His "Quote of the Day" commentaries on topical health policy issues can be found here. He lives in San Juan Capistrano, Calif.