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Debunking Defensive Medicine: Fear of Litigation Not Responsible for Skyrocketing Health Care Costs, New Public Citizen Report Says

March 30, 2011

Debunking Defensive Medicine: Fear of Litigation Not Responsible for Skyrocketing Health Care Costs, New Public Citizen Report Says

Financial Incentives, Fraud and Many Other Factors Provide Far More Plausible Explanations for Rising Care Costs

WASHINGTON, D.C. – In the vast majority of circumstances, doctors act based on their clinical judgment and other factors, not based on liability concerns, according to a report released today by Public Citizen. Common claims about “defensive medicine,” a term for doctors performing unnecessary tests and procedures due to the fear of litigation, are wildly overblown. Much stronger evidence points to other causes of unnecessary tests and procedures, such as a fee-for-service system that pays providers more for every additional test and procedure.

The report, “Defensive Medicine: The Doctored Crisis,” comes as both congressional Republicans and President Barack Obama have called for new policies on medical liability.

Republicans in the U.S. House of Representatives are pushing through the legislative process a sweeping bill, the Help Efficient Accessible, Low-cost, Timely Healthcare Act of 2011, or H.R. 5, that would let all the players in the medical industry – doctors, hospitals, pharmaceutical companies, nursing home providers and the medical device industry – off the hook when they injure or kill people with recklessness.

“Both academic research and common sense suggest that claims about defensive medicine are wildly overblown,” said Taylor Lincoln, research director for Public Citizen’s Congress Watch division and the report’s author. “If members of Congress truly want to rein in health care costs, they should reduce incentives for doctors to order more tests and procedures, and address other problems that are far more pressing.”

Public Citizen found that:

• The most empirically sound, evidence-based studies show that liability concerns have no more than a minimal effect on health care costs;
• Doctor surveys are unreliable and provide fodder for most of the alarmist claims on defensive medicine;
• Many of the tests and procedures that some attribute to defensive medicine are the same ones that come with financial incentives for the provider; and
• Reducing litigation does not reduce health care spending because fear of litigation is unrelated to the actual risk of litigation. Litigation has declined over the past decade, while health care costs have skyrocketed.

Other factors contributing to the high cost of health care include fraud by the health industry, the high cost of pharmaceuticals, hefty physician salaries, duplicative tests and a lack of electronic records.
“The best solution for curbing unnecessary spending is to reduce doctors’ incentives to engage in unwarranted medical procedures,” said Christine Hines, consumer and civil justice counsel for Public Citizen’s Congress Watch division. “This would be far more effective than liability limits and would not restrict the rights of innocent victims of malpractice or saddle them with the costs that malpractice creates.”

The U.S. spends 50 percent more on health care than any other country in the world. Yet the U.S. ranks 46th in the world in infant mortality and 49th in life expectancy. In areas of the country in which a higher concentration of health care is rendered, patients have worse communication with their physicians, worse continuity of care, worse access to care and greater waiting times. These factors all contribute to the high cost of health care.

Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please visit www.citizen.org.