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Brett Emison
Brett Emison
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The Defensive Medicine Myth: Are Doctor’s Committing Fraud?


What is defensive medicine really?There’s been a lot of talk about medical liability reform recently. President Obama mentioned it in his State of the Union address and the US House Judiciary Committee just approved HR 5. Ted at POL notes a new study showing that 20% of expensive tests administered by a group of orthopedic surgeons in Pennsylvania are unnecessary and the result of "defensive medicine". The study, as reported by the Associated Press, required doctors to check a box indicating whether the test performed was required for clinical care or done "for defensive reasons."

This study (and others like it) begs the question: What is "defensive medicine" and why does it occur?

Disclaimer: I am an attorney, though I don’t do medical malpractice work. Medical malpractice reform won’t directly affect my business, but it does affect our constitutional rights.

Claims of "defensive medicine" raise the following paradox:

Doctors claim they run medically unnecessary tests in order to avoid liability for medical malpractice, but doctors are held liable for malpractice only for violating the accepted standard of care — that is, doctors are liability only if they fail to run necessary tests.

So, if doctor’s are negligent only if they fail to run necessary tests, how does performing completely unnecessary tests help to avoid liability?

The real answer: it doesn’t.

If running unnecessary tests doesn’t really avoid malpractice liability, what is the reason? Who benefits from the tests?

If the patient benefits from the test, then it seems as if the tests were medically necessary and, thus, not "defensive medicine."

So, for purely defensive, medically unnecessary tests, patients do not benefit and health insurance companies do not benefit. These "defensive medicine" tests are medically "unnecessary", but performed anyway at a cost of hundreds or thousands of dollars going to… doctors and hospitals.

So, we have doctors and hospitals admitting they are (1) running completely unnecessary tests costing hundreds or thousands of dollars (and billing those costs directly to patients, private insurers, or state and federal governments through Medicaid and Medicare); and (2) which do not benefit patients; and (3) will not prevent liability for failing to run a necessary test. For this admitted fraud who gets the blame… lawyers and malpractice victims.

The defensive medicine myth begs another question: Will proposed tort reform stop fraudulent defensive medicine practices? The answer again is no.

Suggested reforms, like capping non-economic damages does nothing to prevent either defensive medicine or frivolous lawsuits. Non-economic damages are only awarded if an injured victim has shown (1) the doctor violated the standard of care; and (2) the doctor’s violation caused injury. By definition, those awarded non-economic damages did not bring a "frivolous" lawsuit. Such caps serve only to twice victimize injured patients and encourage bad doctors.

Top republicans have called out medical liability reform (like that contained in HR 5) as unconstitutional. See:

Instead of punishing injured victims and compromising fundamental constitutional rights – like those found in the 7th and 10th Amendments – why don’t we just hold bad doctors accountable for hurting their patients and for billing fraudulent charges?


(c) Copyright 2011 Brett A. Emison


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    I’ve always thought the “defensive medicine” argument is bunk. If I have a loved one (such as child, wife or parent) who has a condition a doctor better run every test possible so that we can make an objective finding as compared with a doctor’s subjective belief. I’ve seen those subjective beliefs be wrong many times. If its that same doctor’s loved one I gaurantee they will want every test possible ran.

    Further, is it a bad thing if a doctor truly runs an *extra* test? By doing so he is either not completely sure of his diagnosis and/or is committing fraud. We are not talking about cars where you can buy a new engine. This is the human body and doctors should be required to garner as much certainity through objective testing as possible.

  2. Mark B. says:
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    According to a first-of-its-kind study in Pennsylvania, roughly one-fifth of tests ordered are because a doctor fears being sued, not because the patient needs them. I think we can all agree there’s a problem with that fact. Not that a doctor being cautious is a bad thing… A doctor fearing a lawsuit during the care of a patient is a reason for concern though. http://www.equotemd.com