This summer the journal Health Affairs concluded that the costs of medical malpractice lawsuits make up 2.5% of our health care spending. About 0.5% of that was payouts to compensate the victims of medical malpratice; the remainder was the costs of “defensive medicine” practiced by doctors. The article found that the malpractice costs were a fraction of health care costs and were dwarfed by the costs of so-called fee-for-service medicine: doctors getting paid per test performed, rather than for results obtained.
Other studies have shown that states that have passed caps on damages in medical malpractice, such as Texas, Florida and California, have not seen a reduction in the number of tests and procedures ordered by doctors.
Nevertheless, the furor about the cost of “defensive medicine” continues, revived by Republicans backing H.R. 5, a bill to place a national cap on damages in medical malpractice cases and a recent survey of seventy-four Pennsylvania orthopedic surgeons.
But, as a recent essay in Time co-authored by Drs. Jesse Pines and Zachary Meisel explains, there are lots of reasons why doctors order unnecessary tests and procedures, quite apart from any fears of being sued or desire to line their own pockets. (Hat tip to J.G. Preston at the Protect Consumer Justice blog for the link). Chief among them are doctors’ desire to avoid embarrassment in the eyes of their colleagues and young doctors’ dependence on new medical technology.
As Drs. Pines and Meisel explain, hospitals regularly schedule Morbidity and Mortality (“M&M”) seminars to help learn from past mistakes. At an M&M meeting, doctors pore over other doctors’ mistakes – mistakes that most of the time never lead to medical malpractice lawsuits. Ordering unnecessary tests and procedures helps doctors avoid the painful embarrassment of having their mistakes analyzed by their peers.
The pressure that doctors feel to be perceived as infallible in their colleagues’ eyes is a topic I’ve blogged about quite a bit before; see here, here and here. The remedy for this, I think, is not caps on damages for pain-and-suffering, but a cultural transformation within medicine. Medicine needs to embrace the cultural ethos of engineering where, mistakes are not marks of shame but opportunities to learn.
Drs. Pines and Meisel also contend that expensive medical procedures – such as CT scans – have become a technological crutch that young doctors rely upon. While a couple decades ago, a surgeon would extensively interview a patient before determining whether a CT scan is necessary, today’s young doctors order the CT scan first and only speak to the patient afterward.

This blog in maintained by Boston medical malpractice lawyers at The Law Office of Alan H. Crede, P.C. It does not offer legal advice, nor should you construe it as offering legal advice on a medical malpractice claim that you should have.