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Tort reformers like to talk a lot about how the threat of malpractice suits raises health care costs by forcing doctors to practice “defensive medicine”—the ordering of unnecessary tests, procedures, and prescriptions in an attempt to protect themselves against a possible negligence lawsuit.

In a 2008 AMA survey, they remind us, a majority of the doctors who responded admitted to practicing defensive medicine—a number that translates, the AMA calculated, to $1.4 billion more spent annually on health care. If our doctors weren’t threatened into doing this, we’d all save loads of money and our national health crisis would be over.

Are the tort reformers right? Well, let’s look at Texas. Several years ago, the state passed a stringent medical malpractice law that capped awards for pain and suffering at $250,000, and brought the number of malpractice lawsuits down dramatically.

So the cost of health care in Texas must also be down, you suppose, since doctors don’t face the same malpractice threats as the rest of the country. Eh, No. In fact, Texas is home to three of the top ten most expensive cities in the country to receive health care: McAllen, Harlingen and Corpus Christi. In each of these cities, every Medicare patient is costing the country more than $10,000 a year (a couple thousand more than the national average).

So if defensive medicine against the threat of malpractice suits isn’t driving up costs, what is?

Harvard Medical School surgeon Atul Gawande got a candid answer to this question from a general surgeon in McAllen, Texas:

“Come on,” the general surgeon finally said. “We all know these arguments are [BS]. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

The surgeon came to McAllen in the mid-nineties, and since then, he said, “the way to practice medicine has changed completely. Before, it was about how to do a good job. Now it is about ‘How much will you benefit?’ ” –Atul Gawande, The NewYorker


While tort reform like Texas’ won’t improve the cost of our health care, changing our charge-per-service structure just might.

24 Comments

  1. Gravatar for Mike Bryant

    Minnesota has great care and because of our efficiency have some of the lowers Medicare reimbursement rates. In a system where you make more by people coming in vs. getting info over the phone, it is clear what clinics are doing. Texas continues to be to be watched, just to see if they can come up with any benefits for the consumer.

  2. Gravatar for Penny Lane

    Let's all work together to get a system that everyone likes. I think the biggest problem is with the mega-insurance companies who must make a profit at any cost. They should be subject to anti-trust laws like every other company. They have too much power.

  3. Gravatar for Greg Cusimano

    No doubt you are on the money on this one. It’s not just Texas, the same is true for almost every state that pasted laws limiting patient rights.

  4. Gravatar for Steve Lombardi

    When you see Governor Perry addressing a room full of people about how he's just protected them from being responsible for their professional mistakes, know that behind the Governor are the patients who he's turned his back on. They are the same voting citizens that professional mistakes injured, disabled, killed and maimed. They are the people whose lives were turned upside down and who will never retire while those making the mistakes get an early retirement. We need not wonder why this next generation isn't willing to accept responsibility for their lives; they need only look to our generation and the greed that pervades our political decision-making. Now the only question Governor Perry needs to address is what does he have to say to the catastrophically injured patient who suffers because of the mistakes made by licensed professionals? Should those patients take comfort in knowing Texas is a magnet for doctors with poor surgical skills or who can’t get cheap malpractice insurance in some other state? Should they take comfort in knowing they won’t be alone and that other suffering patients will soon follow in their foot steps? Exactly who voted this man into office?

  5. Gravatar for Steve Lombardi

    And one more thing I'd like to say. (Do I ever run out of one more things to say?) Defensive medicine is pure poppycock. If doctors are ordering tests when there is no medical necessity, BCBS and Medicare wouldn't pay for those tests. Otherwise it would be condoning fraud. Like the concept of “the frivolous lawsuit”, the idea of “defensive medicine” is made up by Madison Avenue to line the pockets of those who cry wolf. P

  6. Gravatar for Darren Wilson

    I agree, Steve.

    Defensive medicine? What's wrong with that? I should hope that my doctors and nurses are more concerned with defending my health than they are with defending themselves from a lawsuit in the first place.

    People tend to forget (or fail to consider) that in our contingency fee system, having a good case (clearly showing medical negligence) is a requirement for even considering filing suit.

    If you are only ordering that MRI to be absolutely sure my child's head injury isn't life threatening because you are afraid of being sued, then I am not sure I want you as my health care provider.

  7. Gravatar for Mike Ferrara

    A book was written called "What's The Matter With Kansas" or something akin to that. It detailed why Kansas voted overwhelmingly for Bush when he was in was in the worst interests. The Sheep just need to be informed. A massive PR campaign by AAJ is something I've been advocating for years. The public has to know that their rights are being taken away by the Insurance Companies and their lackies. I actually had a doctor call my radio show and say he didn't feel doctors should accept personal responsibility for the harms they cause! See the link at www.thebigtalker1210.com for the August 30, 2009 Legal Perspectives Show.

  8. Gravatar for Phil Johnson

    Wow, injury attorneys who don't agree with tort reform, I'm shocked.

    Of course healthcare practioners are going to make mistakes, they're human beings not machines. Malpractice insurance premiums are so high for doctors because lawyers know the deep-pocketed insurance companies pay the settlements, not the doctors. So what's wrong with asking for millions in punitive damages that go way beyond the actual needs of the patient? That new car will really help the victim's family get by, plus the lawyer's vacation home doesn't pay for itself.

    I have a serious medical condition and I know my doctor works in my best interests. But I think it's wasteful of my time and his if he orders an extra test or MRI to validate something he is already 95% certain of based on years of experience. But, he orders it anyway out of fear of a possible lawsuit and an increase in his malpractice premiums, which then lead to higher charges to the patient. Do some doctors abuse "defensive medicine" practices? Absolutely. But given the current legal environment, it is very easy to justify ordering an additional prodcedure and having Medicare or the patient's insurance company provide reimbursement. The same way a lawyer can easily justify filing a lawsuit for "medical negligence".

    Patients' rights do need to be protected, but at what point does protection turn into abusing the system?

  9. Gravatar for Steve Levine

    I hate to tell you boys (and Ms. Lane), but health care liability reform in Texas was never about reducing defensive medicine and holding down costs. That will happen, someday, but those defensive medicine practices are ingrained into physicians who've spent decades with lawyers peering over their shoulders.

    No. Health care liability reform in Texas was all about improving access to quality health care for Texans -- especially those who are sickest or most severely injured. That's exactly what has happened.

    By all measures, the reforms have worked exactly as promised. Patients have better access to needed and timely care. More physicians provide specialty and high-risk obstetrical care in both urban and rural areas.

    Texas has gained more than 14,000 new physicians to take care of Texas patients. Many of these physicians practice high-risk specialties such as emergency medicine, neurosurgery, pediatric intensive care, and pediatric infectious disease medicine. Patients now can get more timely and convenient care when needed. Twenty-one rural Texas counties have added at least one obstetrician since the passage of Proposition 12, including 12 counties that previously had none.

    The 2003 liability reforms have worked. They’ve lived up to their promise. Sick and injured Texans now have more physicians who are more willing and able to give them the medical care they need.

    Steve Levine

    VP, Communication

    Texas Medical Association

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