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Experienced New England Attorneys

Debunking Defensive Medicine


In my last post, I summarized the recent Time Magazine article by Steven Brill, which exposed the rampant abuse and overcharging that drive up health costs beyond the means of many ordinary people–even those with health insurance.  Brill demonstrated how “non-profit” hospitals often generate stunning profits by marking up the cost of both common and specialty medical supplies and by billing separately for items most people would assume are included within other charges.bitter pill cover

Although not cited as a main force behind soaring medical costs, Brill does mention the role of so-called defensive medicine, the practice of ordering tests or treatments based on fear of a malpractice suit rather than good medical practice.  While Brill acknowledges that other factors–including personal profit motives–may prompt doctors to order “unnecessary” tests or treatments, he also assumes that some doctors do treat patients with one eye on their possible malpractice liability, ordering tests for fear that they will be sued if they don’t do so.

Brill’s proposed solution to the problem of defensive medicine is one that has been around for a while.  He suggests that doctors would order fewer unnecessary tests if they knew that they could not be held liable as long as they followed established professional standards for diagnosing a particular condition.

There are two main problems with Brill’s solution, which, if properly implemented, in theory, would have the potential to help patients by ensuring that more people get appropriate care.  One is the obvious problem of how the “established” standards are set—and by whom.  If physician organizations are permitted to set artificially low standards, patients will suffer.

But the other problem is that physician groups have fought valiantly—and for the most part successfully—against the establishment of this type of standard.  Unfortunately, the medical groups’ opposition is not based on any concern that patients may be harmed by standards that are set too low.  Rather, the opposition from physicians is motivated by pure self-interest: they are afraid that if there are clear universal standards, they will have absolutely no defense if they don’t follow the standards!

Because a favorite defense technique is a confusion.  Malpractice defendants love to argue that medicine is an art, not a science, that medicine is not practiced from a “cookbook” that gives the proper treatment in each  given situation, and that practicing medicine requires doctors to “exercise their judgment.”  Imagine what would happen to this defense if there was a clear, unambiguous professional standard that required certain actions in a given situation. Rather than protecting the doctor from liability, that unambiguous standard would provide the injured plaintiff with precisely the proof of negligence that he needs.

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