The Vicious Cycle of Defensive Medicine

New York is one of the most litigious states in the most litigious nation in the world. Consequently, fear of lawsuits is a driving factor for most everything people do.  A recent nationwide poll found that 51% of the nation believes that people have become so fearful of frivolous lawsuits that they are discouraged from engaging in normal activities.  Worse yet, a survey released this July by CNBC ranked New York dead last for business friendliness due in large part to litigation fears.  Those in the medical profession are driven to order unnecessary tests and procedures to protect against lawsuits, referred to as “defensive medicine.”

In 2011, New York paid out a staggering $677,866,050 for medical malpractice litigation, the highest in the nation and over double the amount the next highest state, Pennsylvania.  This number speaks not to the quality of doctors in our state, but to our imbalanced and misguided civil justice system. In fact, a series of studies of closed claims by the Harvard School of Public Health found that more than half of medical malpractice claims were either “frivolous” or of “uncertain merit. ” Equally troubling, almost a quarter of frivolous suits received compensation, while those of uncertain merit received compensation more than half the time. It’s no wonder our courts are inundated with lawsuits.

A recent opinion piece in the New York Times highlighted the link between the use of defensive medicine to prevent malpractice, and more incidents occurring due to the increased treatment.  Since 1999 it is estimated that despite advances in medicine, the deaths related to medical malpractice have almost doubled.  Medicine and technology have made great strides over the past years, yet the fear of lawsuits has sabotaged any gains in safety.

“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.” The New York Times reports.

What the doctors do not intend is the increased possibility for something to go wrong with each additional test or prescription.

“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.” 

There are countless mechanisms in place to try and counter the use of unnecessary tests such as hospital checklists, rules, and weekly meetings. These are critical steps – but the only way to truly reduce defensive medicine to a minimum is to decrease the risk of litigation.

Numerous promising common-sense solutions are available to reach this goal. For example, strengthening evidentiary standards would ensure that claims are supported by scientifically sound theories – current rules of evidence merely require that a theory be “generally accepted.” Implementing a time frame for the disclosure of expert witnesses, as is the norm in Federal courts and many other states, would eliminate last minute “trial by ambush.” Lastly, requiring medical malpractice lawsuits to be accompanied by a certificate of merit signed by a physician would create a strong mechanism for blocking meritless suits.

There is no way to fully eliminate mistakes in the medical field because, as Alexander Pope so famously noted, “to err is human.” But we must repair our broken liability system to ensure that litigation does not perpetuate the ill effects it was intended to prevent. Doctors and medical professionals make tremendous sacrifices every day to save lives and make people healthy – they should be allowed to focus on providing care, not fighting off lawsuits.

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