Contributing Writer: Marissa Stolt | May, 2024
After weeks of battling what seemed like a common cold that would go away without medical intervention, Maria Clark contemplated visiting Urgent Care for treatment. As a low-income individual with children, Maria did not have time or money to waste. Her cold was preventing her from working efficiently to support her family. Although wary of unexpected costs and hours lost in the waiting room, going to the doctor was her last resort.
Concerned about the potential for a misdiagnosis, Maria’s doctor ordered a battery of tests that extended beyond what might be considered medically necessary for a persistent cold. Like many physicians navigating the litigious landscape of healthcare, Maria’s doctor took a cautious approach to treatment. If Maria or any other patient was eventually diagnosed elsewhere with a condition this doctor did not test for, they could sue for malpractice, threatening their doctor’s reputation and career. This approach seemed like the only way for her doctor to safeguard against potential legal repercussions for the doctor. Still, it raises questions about the economic toll of over-cautiousness on the individual patient and the broader healthcare system.
Maria’s unfortunate routine encounter demonstrates the use of positive defensive medicine: a practice where healthcare providers, out of fear of legal consequences, opt for excessive diagnostic tests, procedures, and treatments. Negative defensive medicine, a practice hoping to achieve similar goals differently, occurs when doctors limit their services to avoid high-risk patients or procedures. The threat of legal action against doctors forces them to make decisions without their patients’ best interests in mind. Approximately 80-90% of doctors openly practice defensive medicine, making it a major driver of increasing healthcare costs and negative economic consequences. The total cost of the practice ranges from $46 billion to $300 billion annually, although most estimates are between $50–65 billion when factoring in benefits and costs. This cost illustrates how essential it is to understand the burdens defensive medicine causes and how professionals can prevent it.
Healthcare Costs: Inefficient Resource Allocation
A number of costs are associated with the practice of defensive medicine. Unnecessary tests and procedures increase the overall healthcare expenditures, leading to higher insurance premiums and out-of-pocket expenses for patients. These effects create an unnecessarily high demand for higher-cost medical practices. Positive and negative defensive medicine also impact access to care. With limited screening and testing resources, a backlog of tests demanded by doctors trying to protect themselves from lawsuits makes it difficult for patients in legitimate need. For example, a patient coming to the emergency room with mild chest discomfort might cause their doctor to order a CT angiogram or a stress echocardiogram to rule out any potential cardiac issues. However, their vital signs and initial evaluation suggest low risk.
Resources are not allocated in a way that maximizes social benefit. Providing the most efficient and effective care strategies should be the goal of healthcare practices, and it has yet to be realized. In other cases, those with the highest level of need simply receive no care. A doctor might refuse a patient presenting with chronic pain proper pain medication out of fear of liability, leaving the patient without appropriate care or management of their condition. Further, a survey of Pennsylvania physicians in a range of specialties showed that over 42% reported that they had taken steps to restrict their practice because of liability concerns, and 49% stated that they were likely to do so in the next two years. Given the high rates of malpractice claims, many specialists have closed their practices, stopped performing high-risk procedures, or reduced their care of high-risk patients. This avoidant behavior contributes to a lack of medical specialists in small towns and cities. When doctors act outside of the best interests of their patients, resource allocation becomes disorganized, access to care is disrupted, and overall productivity is lost.
Beyond the Healthcare Sector
While most of the negative implications of defensive medicine fall within the healthcare sector, other industries are also affected by this damaging practice. It is essential to understand why defensive medicine is used to understand its effects. It is primarily motivated by a physician’s belief that the legal malpractice system is slow, unfair, ineffective, and damaging to the reputation of qualified practitioners. While 20,000 malpractice lawsuits are filed annually in the U.S., a study by Johns Hopkins estimated that only 1% of all adverse medical incidents eventually result in any official malpractice claim. This system is inefficient and unproductive and works against doctors and patients. While an optimal level of lawsuits exists economically to ensure fair treatment of patients and doctors, it has not been met. The current system doctors work under creates quantifiable economic and psychological costs physicians face under the stress of a possible malpractice lawsuit that could be career-ending.
While defensive medicine leads to more cautious care, the physician is, by definition, less motivated by medical outcomes than by legal risk. The high numbers of medical malpractice claims and lawsuits burden the legal system and increase costs. Similar to the higher costs and backlog created in the healthcare industry, the legal system also feels the effects of defensive medicine. Additionally, insurance companies that back doctors face high legal fees, affecting operating costs. Doctors themselves have to cough up, on average, $7,500 for malpractice insurance, and the risk of being sued is one of the most stress-inducing aspects of their job, with 34% of doctors having a claim filed against them at some point in their careers. While accountability is needed to prevent healthcare professionals from endangering their patients, the current system doctors work under must be revised. Defensive medicine will continue to create negative pecuniary externalities without a way to standardize care and ensure fair treatment.
Finding A Solution
In 1993, a Lewin Group report argued that the US healthcare system could save nearly $36 billion over five years by taking steps to eliminate defensive medicine. To reduce the practice of defensive medicine, decriminalization of medical errors and understanding the importance of clinical reasoning is essential. Clinical Practice Guidelines, or CPGs, are standardized care procedures based on the best available research and empirical evidence. In Italy, CPGs are the most direct route to limit faulty care. “In the purview of Law no. 24/2017 established by the National Institute of Health through the new Italian National Center for Clinical Excellence, Quality, and Security: adherence to national guidelines can lead to a reduction in medical malpractice claims and the practice of so-called “defensive medicine’. The law has assigned a central role to the guidelines”.
The primary reason CPGs are more effective in Italy compared to the United States lies in the legal and regulatory framework surrounding their implementation. This legal backing creates a stronger incentive for healthcare providers to adhere to CPGs, thereby reducing the burden of decision-making on doctors and minimizing the threat of legal action by patients. Creating national CPGs and standards of care offers a powerful strategy to avoid the damaging practice of defensive medicine.
REFERENCE
“AMA Studies Show Continued Cost Burden of Medical Liability System.” American Medical Association, 4 Jan. 2018, www.ama-assn.org/press-center/press-releases/ama-studies-show-continued-cost-burden-medical-liability-system.
“Medical Malpractice Statistics.” Medical Malpractice, 6 Sep. 2023, www.millerandzois.com/medical-malpractice/medical-malpractice-statistics/.
Sethi, Manish K. “Defensive Medicine: ‘Glowing’ with Pain.” Patient Safety Network, 2010, psnet.ahrq.gov/web-mm/defensive-medicine-glowing-pain.
Zerbo, Stefania, et al. “Guidelines and Current Assessment of Health Care Responsibility in Italy.” Risk Management and Healthcare Policy, U.S. National Library of Medicine, 10 Mar. 2020, www.ncbi.nlm.nih.gov/pmc/articles/PMC7073368/#