Ignoring the facts

The defensive medicine myth is hard to kill

Med-Mal Matters

Thomas A. Demetrio and Kenneth T. Lumb

Thomas A. Demetrio is a founding partner of Corboy & Demetrio, representing victims of medical malpractice and personal injury.

Kenneth T. Lumb is a medical-malpractice attorney and partner at Corboy & Demetrio.

December 2017

In 2015, we wrote about a study in the New England Journal of Medicine regarding the effect that medical-malpractice damage caps and other so-called tort reform measures have on the actual care provided in hospital emergency rooms. The authors set out to study the conventional wisdom that doctors prescribe unnecessary tests, procedures and treatments because of a fear of lawsuits and that tort reform will lower health-care costs. Their study, however, proved the exact opposite: Even extreme tort reform that practically immunized emergency care providers did not change prescribing behavior.

This year, a Rutgers law school professor, Sabrina Safrin, published a draft of an article which will appear in the University of Illinois Law Review in 2018. The article, apparently written by a Tina Turner fan, is titled “The C-Section Epidemic: What’s Tort Reform Got to Do With It?” The author examines the conventional wisdom that fear of malpractice liability is responsible for a “cesarean section epidemic” and that tort reform is the cure. As with emergency care, however, the facts belie the conventional wisdom.

Professor Safrin examined, and presented in her draft, evidence of cesarean rates for births in states subject to damage caps and rates for births in states without damage caps. That data, which should be extremely persuasive to anyone interested in actual science, proves that a woman is not less likely to give birth by C-section in a state with damage caps than in a state without caps.

In 2016, Dr. Martin Makary wrote in the British Medical Journal that medical error — a euphemism for medical negligence — is now the third leading cause of death in the United States. It stands to reason that medical negligence didn’t rise to third because doctors are being too aggressive in diagnosing and treating patients.

Also this year, Makary published in the peer-reviewed journal, PLOS ONE, the results of a survey of physicians regarding overtreatment. A total of 2,106 physicians from various medical subspecialties who belonged to the American Medical Association responded to questions such as:

  • In your specialty, what percent of overall care do you think is unnecessary?
  • Nationally, what do you think are the top reasons for overutilization of resources, if any?
  • In your opinion, what can decrease overutilization?

The survey found that most physicians believe that at least 15 to 30 percent of medical care is unnecessary and concede that physicians are prone to provide unnecessary procedures when they profit from them. The top cited reason for overtreatment, however, was “fear of malpractice,” and the author makes clear that this means the fear of malpractice lawsuits, not the fear of failing to protect patient safety, or committing malpractice.

Makary concludes, in a monumental understatement, that perceptions on the prevalence of malpractice lawsuits, “may be greater than the reality of the problem.” Only 2 to 3 percent of patients harmed by negligence ever pursue litigation, Makary writes, only half of those receive any compensation and paid claims have declined by nearly 50 percent in the last decade. Despite the facts, Makary points out, physicians continue to believe that tort reform will solve the problem of unnecessary treatment and lower health-care costs.

A September article in Law360 may help to explain the disconnect. The article can be read to claim that Makary’s survey is proof that defensive medicine is caused by medical-malpractice lawsuits and that tort reform is the answer. The results of the survey, the article states, is hardly surprising because defensive medicine has “long been cited by state and federal lawmakers as a chief reason to institute tort reforms.”

The author then quotes a lawmaker’s unsupported claim that doctors practice defensive medicine “so they don’t get sued,” without citing or quoting the contrary facts in the very study he is discussing. As so many commentators do, Law360 assumes that what doctors believe must be true while ignoring the facts disproving those beliefs.

Facts may indeed be stubborn things, but they’re no match for a firmly held belief that’s consistent with the believer’s self-interest.