Defensive Medicine: The Doctored Crisis

March 30, 2011 — Proposals to limit medical malpractice liability are a perennial feature of health care debates. At present, the principal claim of those seeking to limit liability is that malpractice liability causes massive extra costs through “defensive medicine”: Fear of litigation leads doctors to exercise grossly excessive caution, ordering unnecessary tests and procedures. Current House Speaker John Boehner (R-Ohio) claimed in 2010 that “medical malpractice and the defensive medicine that doctors practice” is the “biggest cost driver” in all of medicine. Is Rep. Boehner correct? The reliable empirical evidence paints a vastly different picture.

This report, based on reliable published studies, covers the following topics:

  • The most empirically sound, evidence-based studies of defensive medicine usually find that its role is small.

  • Factors other than defensive medicine, such as financial incentives to order more tests, offer much better explanations for many of the practices that liability opponents deem defensive.

  • Defensive medicine cannot be driving the fast-paced growth of health care costs be-cause the costs of diagnostic testing — the principal type of purported defensive medicine — are small in proportion to overall health care spending.

  • Malpractice litigation has declined, but the decline has not slowed the growth of health care costs. Malpractice litigation is at the lowest level on record, and there is no evidence that the decline in litigation has slowed the growth of health care costs. This may because fear of litigation is unrelated to actual risk of litigation.

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