Litigation/

Is In: "Proving The Earth Is Flat."

The TortsProf blog recently published a list of their top ten most downloaded articles on tort law. Number five on the list was entitled "The Truth About Torts: Defensive Medicine and the Unsupported Case." The paper was published by the Center For Progressive Reform.

With a title like that, we immediately must say "This will be good. Really good. Good for some entertainment, that is." It is the authors' contention that there is no justification for tort reform, especially if it is done because of "defensive medicine." In fact, the authors who happen to be law professors at Wake Forest and University of Texas at Austin go on to assert and prove there is no such thing as "defensive medicine." It is a myth. It is more accurate to say the professors do more asserting than proving. But it is the same old canard. Without the policing function of tort law, doctors would run wild. And physician behavior is not affected by the threat of lawsuits. So in other words, the esteemed law professors are proving that the earth is flat. And anyone who thinks it isn't flat believes in myths.

Here is an abridged version of their paper:

In the debate about health care reform, “defensive medicine” has become a convenient culprit for rising costs and especially rising physician malpractice premiums. Vaguely defined, the phrase, “defensive medicine,” is used to suggest that physicians make medical decisions to avoid potential litigation, instead of with their patients’ health and safety in mind. On the strength of this assertion alone, some policymakers argue for restricting Americans’ right to bring suit to recover damages for medical malpractice. This report demonstrates, however, that the proponents of medical malpractice “reform” lack persuasive evidence that tort litigation against physicians encourages them to make medical decisions that they would not have made otherwise.

Powerful business interests have compelling reasons to perpetuate the “defensive medicine” myth. Because the national health care debate has been framed around costs – not patient health and safety or access to care – the “defensive medicine” message has been successfully deployed to restrict Americans’ access to the courts in many states. Meanwhile, “defensive medicine” also serves as a politically expedient straw man, allowing policymakers and the insurance industry to ignore or obscure the real drivers of rising medical costs, including the high costs of prescription drugs; the high demand for, and increasing use of, state-of-the-art technology; the growing incidence of chronic diseases; and an aging population that lives longer and consumes more medical care.

This report first establishes that an intact and robust civil justice system is necessary to the health of society and exposes how rarely doctors are actually being sued. Next, it examines why doctors order tests and procedures. It then surveys available empirical evidence showing that a supposed “defensive medicine” mindset has little impact on medical decisions or on medical practice costs. The report also exposes extraordinary shortcomings in the methodology and academic rigor of the evidence most frequently cited by civil justice opponents. This report concludes:

1.) Those who blame “defensive medicine” for the health care system’s woes include in their definition procedures performed for reasons unrelated to litigation. Opponents of the civil justice system have a strong incentive for the term to be over-inclusive to include any indication that superfluous or “extra” medicine is being practiced, ignoring other motivations such as the desire to maintain a good doctor patient relationship, the influence of advertising on patient demands, family pressure, financial gain, and the simple availability of technology.

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