The Truth About Defensive Medicine

Little Rock Medical Malpractice Lawyer Serving All of Arkansas


What “Tort Reform” Groups Say:

Everyone who has read the paper or paid any attention to the news has heard the argument made by insurance industry groups and their lobbyists to the effect that there are billions of dollars being spent on “unnecessary tests” which are ordered by doctors simply to avoid  a malpractice suit against the doctor.  This “defensive medicine” argument is yet another of the misleading  and outright false arguments which the insurance industry and “tort reform” groups have been making over the last 20 years.

What They Aren’t Telling You: 

To begin with, the “defensive medicine” argument is built on a clearly false idea, which is that doctors would ever be sued for not ordering an unnecessary test  Put another way, the only way a doctor would ever get sued for not ordering a blood test, MRI, x-ray or any other test is if that test would have allowed the doctor to make the correct diagnosis, and would have prevented the patient’s death.  Clearly, in a situation where the doctor’s failure to order an MRI resulted in a failure to diagnose a fatal disease, the MRI is anything but “unnecessary”.  Therefore, doctors are right  to fear that if they failed to order a test which would have saved a patient’s life they are going to be held accountable for that error.  And there’s nothing wrong with that.  Doctors, like anyone else, need to be accountable for the results of their errors.

What Do Insurance Lobbyists Mean by “Unnecessary Tests”?

But where the “defensive medicine” argument really falls apart is in the definition of what tests are or are not “unnecessary”.  When “tort  reform” groups claim that billions of dollars are being spent on unnecessary tests, they can’t ever point to a single test that was in fact unnecessary — they always rely instead on estimates from “think tank” organizations which are themselves wholly funded by the insurance industry and big business.  In effect, they are paying people to make estimates which they then use as “fact” to support arguments which are scientifically insupportable.

In truth, nobody has any idea of what tests are “unnecessary” and how many “unnecessary” tests are being ordered, simply because the situations doctors face every day, and the variety of medical conditions which doctors are trying to diagnose, are so varied.

  To take just one example of many hundreds of examples that happen every day in emergency  rooms across the country: suppose the patient comes in to the emergency room  has just been in a car accident.  The patient hit her head on the steering wheel in the accident, and now has a big bruise on her for her head: she is dizzy, nauseated and pale.  Any doctor knows that there is a risk that a patient in this situation has sustained a head injury and has bleeding into her brain.  Any doctor knows that in this situation that such bleeding could, if not treated promptly, lead to the patients death.  The doctor also knows that there is only one chance in 100 that an MRI scan would show such an injury.  To put it the opposite way, the doctor knows that there is a 99% chance that an MRI scan done of this patient would be negative.  Does that mean that an MRI scan  is “unnecessary”?

What if the chances that the MRI scan would show bleeding into her brain were one in 10, instead of one in 100?  That still means that there is a 90% chance that the MRI scan results would be negative.  “Tort reform” groups would argue that if the doctor ordered an MRI scan in this situation, that the test is “unnecessary” and therefore part of the “billions of dollars” of unnecessary tests ordered as “defensive medicine”.  However, no doctor in America, and certainly no patient or family of a patient in this situation would consider such tests to be “unnecessary”.

 In fact, modern medicine requires a doctor to consider the possibility of several different diagnoses when a patient comes in with complaints to the emergency room.  Tests are performed in order to allow a doctor to narrow his list of possible diagnoses of the patient’s problems.  In the case where a patient comes into the emergency room complaining of lower abdominal pain, the proper diagnosis could be indigestion, appendicitis, pelvic inflammatory disease, or many other problems  — some of which are minor and some of which are potentially fatal.  When a doctor does testing to rule out the fatal condition, and the test results come back negative, only a fool ( or a “tort reform” lobbyist) would argue that the test was “unnecessary”. 

Similar issues come into play when discussing mammograms, prostate exams, chest x-rays, arteriograms,  blood tests—in fact, all of the tests which science has devised to detect illness or injury and which separate American medicine now from what it was 150 years ago. 

Guesses Used to Support Bad Public Policy

The people that  give multibillion-dollar estimates of the cost of “defensive medicine” never say where they got these huge numbers from.  The reason they don’t  is because the numbers are estimates only, and the estimates are based on guesses about the cost and number of  tests that come back negative every year.  But this is a silly basis on which to argue any public policy.  When an x-ray comes back and shows that a patient doesn’t have lung cancer, that test is hardly “unnecessary”.  Nobody will ever say which tests were unnecessarily ordered, how often, or by which doctors—because the one thing that is these tests save lives.

The bottom line is that the “defensive medicine” argument is full of holes.  It makes for some good “sound bites” which insurance lobbyists can say while they are making arguments in favor of cutting insurance benefits or preventing people hurt by medical malpractice from recovering for their injuries, but there aro facts to support the argument.  No sane person would argue that just because a test comes back negative, that the test has no value.

And only an insurance company lobbyist would say that because some tests come back negative that we should allow doctors to get away with medical malpractice.