Defensive medicine can be practiced in two different modes: assurance or avoidance.

1. Assurance: the prescription of treatments or tests primarily for the purpose of protecting oneself against possible malpractice claims or to increase the odds of finding an effective treatment;

2. Avoidance: the refusal to engage in the treatment or diagnosis of patients in a field that is inherently high-risk, typically has high levels of malpractice claims or in which defense against malpractice claims can be particularly difficult.

Both forms of defensive medicine are becoming increasingly progressive among doctors, especially in the US, as malpractice litigation has become more common.

The Impact

References for tests or second opinions can not only increase the total costs of diagnosis and treatment, but can also delay effective treatment of the patient. It can tie up high-demand resources, delaying treatments for other patients, as well. If those referrals are a result of defensive medicine, those delays and cost increases can have a detrimental effect on the quality of care for many patients.

A Health Affairs study in 2010 claimed that defensive medicine accounted for at least $ 45.6 billion each year in extra medical costs in the United States. However, a Gallup Poll of US doctors found that $ 650 billion was a more likely number – 26% of total health care expenses, versus the 2.5% of the Health Affairs findings. Another doctors poll of the same time-frame arrived at $ 850 billion, or 34%.

Even more alarming, a 2005 Price Waterhouse Cooper study found more than half – $ 1.2 trillion of a $ 2.2 trillion total – was unnecessary costs, primarily driven by defensive medicine.

No less concerned are the findings of an early 2012 Academic Medicine study, polling 3rd and 4th year medical students and residents:

  • 92% of the students polled reported that they had seen at least one instance of assurance practice, with 34% seeing at least one instance of avoidance.
  • 96% of the residents polled said they had seen accidents of assurance, with 43% seeing avoidance.
  • 41% overall of the students polled and 53% the residents admitted that their attending had taught them that potential liability should be taken into consideration when making their clinical decisions.

These are alarming numbers, pointing to a systemic problem that requires immediate attention. The cost per capita of such superfluous practices is tremendous. Accepting for a moment the findings of the Gallup Poll, that would indicate an additional burden of over $ 3,800 per year for every man, woman and child in the US -and those costs will be absorbed by someone. The insured parties are much more likely to end up footing the bill than the insurers.

Is There a Solution for Defensive Medicine?

There have been several solutions offered, some of which may have merit. In all probability, the most effective remediation may be a combination of several tactics.

The notification that the costs of malpractice liability insurance are largely liable for the rising costs of medical care is erroneous. While it certainly contributes to the operating costs of a practice, it is dwarfed by the costs of defensive medicine.

Therefore, the greatest savings can be realized by removing the incentives for practicing defensive medicine. That may be accomplished by something similar to what Florida recently implemented for its Emergency Department (ED) doctors.

They have made the State the responsible entity in any malpractice action, rather than the physician. Given that ED is the area in which defensive medicine is most prevalent, this would seem to be a worthy test of effectiveness.

In lieu of simple tort reform, such immunity could go a long way towards removing the threat of life-destroying lawsuits, hence helping to reduce unnecessary procedures and cut total healthcare expenses drastically.

Another fallacy that can be easily debunked is that many unnecessary tests and procedures are motivated by financial kickbacks. In reality, most such kickback schemes simply do not exist, as they are patently illegal. References, lab tests and drug prescriptions very rarely represent any sort of income stream for doctors.

Another major change that would be very helpful in reducing the practice of defensive medicine would be to transition to a peer review process in the settlement of malpractice claims. The current structure, usually involving claim decisions by non-medical personnel, has occurred far too many unwarranted malpractice findings.

When Will it End?

There is reason to hope, if Florida's ED experiment renders positive results. Such a program, if effective, could dramatically improve any state's healthcare program, while reducing overall costs. That would attract more doctors, which would improve healthcare availability in many areas that are currently found lacking, both geographically and in high-risk specialties.

Curtailing the threat of litigation is a key factor, obviously. That, combined with a peer review system, would probably allow the situation to right itself in short order. But many legislators have expressed concern about allowing the medical profession to police itself. Since the majority of legislators are lawyers, a profession which, in fact, polices itself very effectively, this would seem to be an unfounded concern.

Still, any major change in an industry that is already seen by many to be out of control, will understandably be examined with caution. Some degree of oversight will probably be desired, and that may not be unreasonable.

Until such changes can be agreed upon and implemented, however, both doctor and patient need to do all that is possible to minimize the practice of defensive medicine. Patients should be willing to listen to their doctor's opinion in charting their treatment plans. Doctors, in turn, must be frank and open with their patients, to ensure that they are made aware of all the ramifications of every procedure that might be of marginal value to their treatment.

As always, education will play an important role in combating what essentially amounts to a counter productive system. The insurers may well be the strongest advocates for such reforms, with the doctors as the vanguard. In the end, doctors, patients and insurers will all be winners.