Defensive Medicine:  Costs, Consequences, Solutions

Kill all the lawyers (King Henry).

Kill the physician, and the fee (Othello)

Shakespeare (1564-1616)

Shakespeare was right.  If he were speaking today,  he might say the way to solve  defensive medicine inflation would be to kill all the lawyers and physicians.

But we need lawyers and physicians, so that is no solution.

Besides,

·         Patients will still go to doctors.

·         Patients unhappy with doctors will still go to lawyers.

·         Injuries due to malpractice or unhappiness due to miscommunication will still occur.

·         Patients will still demand all that medicine has to offer as long as someone else is paying the bill and as long as they are disconnected with any cost burden.

·         Doctors will still order tests and consultations just “to be sure” they have covered all the bases should a malpractice suit eventuate.

·         Doctors will continue to flee to states, such as Texas, where tort reforms have been enacted from states with high malpractice premiums.

·         States with high malpractice rates will stukk suffer severe  doctor shortages in rural areas and inner cities.

·         Defensive medicine inflation will still remain as long as imaging scans are considered the standard of care for headaches, injuries, back joint discomfort, and obscure abdominal or thoracic diseases , and as long as antibiotics are standard treatment for fever or upper respiratory infections.

Defensive medicine will flourish and inflate health costs to the tune of $50 billion to $500 billion out of the $28 trillion expended on health care.  No one knows the exact figure, though we do know 64% to $68 % of physicians admit they order tests and consultations to avoid the appearance of malpractice (Chandra, Jena, and Seabury, “Defensive Medicine May Be Costlier Than It Seems, “Wall Street Journal, February 7, 2013).

Is there hope for respite from defensive medicine related inflation?

Maybe , if,

·         the American legal profession eliminates contingency fees as routine in malpractice rewards;

·         the U.S. were to adopt a national policy of “loser pays” for trivial malpractice suits;

·         patients were to pay bills out of their own pockets through health savings accounts.

Fat chance. These are huge “If’s.”  They are unlikely as long as the Association of Trial Lawyers are big contributors to the Democratic Party,  and as long as lawyers dominate both houses of Congress.

Until then, our best chance, a slim one,  is to listen to Philip K. Howard,  JD, Chair of Common Good.

“The only cure for defensive medicine is a system of justice that reliably distinguishes good care from bad. That’s why a growing consensus,  including President Obama, Mitt Romney, and the Simpson-Bowels proposal, call for creating special health courts. The cure for the disease of unreliable justice is reliable health courts.” (Letter to the Editor, “Defensive Medicine Mentality Permeates Health Care,” Wall Street Journal, February 16, 2013).

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