Fear of lawsuits drives unnecessary medical tests

Not only does defensive medicine exist, a new study has taken a fair stab at quantifying its cost.

As reported by the New York Times, a new paper published in draft form by the National Bureau of Economic Research estimates that the medical malpractice system actually adds about 5 percent to the intensity of health care patients get in the hospital—not that they’re any better off for it.

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Doctors, of course, have been complaining about it for years, saying that the need to defend against medical malpractice compels them to “order unnecessary tests and procedures to protect themselves if a patient sues them.”

And Tom Price, former Health and Human Services secretary, claimed back in 2010 when he was a congressman that defensive medicine was the reason health care cost so much. Price claimed that it cost an extra $650 billion a year, amounting to 26 percent of every dollar spent.

Part of the problem in studying the potential added cost involved in defensive medicine has been finding a group to study that cannot sue for malpractice. But this latest study, conducted by researchers from Duke and M.I.T., focused on the health care system for active-duty members of the military. They’re barred from suing for malpractice, while family members who are also treated at military hospitals have the freedom to sue if they so choose.

“There is defensive medicine,” said Jonathan Gruber, a health economist at M.I.T. and an author of the paper. “But that defensive medicine is not explaining a large share of what’s driving U.S. health care costs.”

In their study, Gruber and Michael D. Frakes, a Duke economist and lawyer, says the report, “looked at what happened to the hospital care that military members received when a base closing forced them to use their benefits in civilian hospitals, where it was possible to sue. Spending on their health care increased, particularly on extra diagnostic tests.”

In addition, they found that even within the military hospitals, family members who could sue tended to get more tests than those who could not.

Of course, the study doesn’t account for all instances of medical care, such as emergency room treatment, in which defensive medicine might expand testing and costs. But the findings also found no indication that doctors cut corners in treatment in instances in which malpractice suits weren’t an issue.

Instead, it found that the additional steps taken in a malpractice-possible environment didn’t add any improvements to patient care and patients were no better off.

“It suggests that physicians change their behavior in response to liability considerations, but they don’t do it in a very calibrated way,” Michelle Mello, a professor of law and health policy at Stanford, who has studied medical malpractice, told NYT. “They tend to make a lot of changes that don’t result in better patient care.”