Invited Commentary—It Is Time to Address the Costs of Defensive Medicine:  Comment on “Physicians’ Views on Defensive Medicine: A National Survey” FREE

The common themes running through most of the recent debate over national health care policy, sadly, have been division and partisanship. Though Democrats and Republicans alike agree that our nation's health care system is in dire need of reform, consensus on Capitol Hill has been an elusive commodity. Among the many issues contributing to the seemingly constant division has been what to do about the costs imposed by medical malpractice lawsuits. This is unfortunate because, as studies like the one by Bishop et al have shown, the problems associated with health care litigation are real and widespread, and potential solutions are well within reach.

Over the last several years, as Congress has debated this issue, I have had an opportunity to meet with many physicians, most of whom have told me the same thing: That the constant threat of litigation leads them to perform extraneous and often inappropriate procedures, the costs of which they have no choice but to pass on to their patients. To stay in business, physicians must do everything they can to avoid being sued and to keep the costs of their malpractice insurance premiums from going through the roof. Unfortunately, the best way for them to do this is to perform extra and unnecessary tests and procedures and prescribe needless medications. In each case, this means more costs charged to patients and insurers as a result of fear of lawsuits instead of medical necessity.

The evidence for this trend is not merely anecdotal. The results of the survey Bishop et al published in this issue of the Archives indicate that physicians nationwide readily admit that these practices—typically referred to as “defensive medicine”—are commonplace. Other studies have given us a picture of the costs of these practices. For example, a 2008 study by PricewaterhouseCoopers found that as much as one-half of our nation's health care spending can be attributed to waste and that the single largest source of wasteful spending is defensive medicine.¹

Because of these trends, I and a number of my colleagues have, over the years, supported reasonable, commonsensical reforms that would discourage frivolous claims and encourage the settlement of legitimate claims. These reforms would reduce the need for the practice of defensive medicine and result in significant savings for patients. These proposals have taken a variety of forms, including caps on noneconomic damages (ie, those not associated with actual, calculable losses), limitations on joint and several liability, and heightened evidentiary standards for punitive damages. Efforts have been made to enact these ideas systemwide or even to limit them only to certain high-risk specialties, such as obstetrics. Unfortunately, trial lawyers associations have successfully blocked tort reform, arguing that people with low incomes will not be able to find lawyers to take their cases on contingency if settlements are capped. However, that has not been the case in states like California that have enacted meaningful tort reform.

In the midst of the most recent health care debate, I received a letter from the Congressional Budget Office (CBO) regarding this issue.² That letter was remarkable in that, for the first time, the CBO took into account the costs associated with defensive medicine when evaluating the budgetary impact of proposed reforms. In their letter, the CBO indicated that, by enacting a number of commonly proposed tort reform measures, Congress could reduce the deficit by $54 billion over 10 years. In addition, according to the CBO's numbers, the private sector would see a roughly $125 billion reduction in private sector health spending over that same 10-year period. These are hardly insignificant numbers. Yet, even with this evidence in place, this issue was not significantly addressed in any of the recent health care bills debated in Congress, despite several attempts on the part of the minority to introduce amendments toward this end.

It is my hope that, as the American people see more evidence that they are paying for redundant and unuseful medical procedures, they will demand in larger numbers that real reforms be enacted to address this problem. That is what makes studies like the one by Bishop et al so important.

Correspondence: Orrin G. Hatch, 104 Hart Office Bldg, Washington, DC 20510 (Bryan_Hickman@judiciary-rep.senate.gov).