Defensive Medicine as a Preemptive Measure

Defensive medicine has become an increasingly common practice, particularly in the United States, where malpractice litigation is most common. It takes two distinct forms: avoidance and assurance.

In an avoidance mode, the practitioner simply opts not to practice medicine in a field that is prone to high levels of litigation, is inherently high-risk or where a malpractice claim is especially difficult to defend against.

In an assurance mode, the general philosophy is to “cover all the bases,” by performing extensive tests, referring patients to specialists for second opinions or ordering procedures or medications without sound indications that they may be productive.

There are three principal reasons for such measures:

  • Improve the chances of successful treatment;
  • Reduce the risk of a patient filing a malpractice claim;
  • Preempt liability by demonstrating diligence in seeking the best possible diagnosis and treatment.

Unfortunately, all three can result in higher costs to the patient’s insurer (and ultimately, the patient) and can delay effective treatment.

How Prevalent is Defensive Medicine?

According to a 2010 study by Health Affairs, defensive medicine is responsible for at least $45.6 billion per year in additional medical costs in the U.S. That makes the entire cost of the medical liability system nearly 2.5 percent of total health care spending… and rising.

Interestingly, a 2010 Gallup Poll found that the U.S. physicians polled attributed 26 percent of overall healthcare costs to defensive medicine. That equates to an extra $650 billion. Other polls of physicians have indicated that number to be 34 percent, or an additional $850 billion.

A 2005 study by Price Waterhouse Cooper determined that $1.2 trillion of the total $2.2 trillion spent on medical care that year was unnecessary cost, comprised largely of defensive medicine.

Perhaps equally disturbing are the findings of a study conducted by Academic Medicine early in 2012. Of the third- and fourth-year medical students and residents polled, the following was reported:

  • Of the student polled, 92 percent reported that they had encountered at least one incident of assurance practice, and 34 percent had encountered at least one incident of avoidance.
  • Of the residents polled, 96 percent had seen incidents of assurance and 43 percent had seen avoidance.
  • Overall, 41 percent of all the students polled and 53 percent of the residents stated that their attending physicians had taught them to consider liability when making clinical decisions.

Even if one accepts the lowest figure of slightly less than 2.5 percent of all medical care spending, it nevertheless represents an additional $146 of spending each year for every man, woman and child in the U.S., on a per capita basis. If the Price Waterhouse Cooper data is correct, that becomes over $3,800 per capita, per year—and those costs will be recovered somewhere. The insurer isn’t likely to be willing to absorb them, so the cost will be passed on to the insured parties.

What is the Solution?

A number of proposals have been offered, focusing on reducing the unnecessary costs of defensive medicine. This is probably the best approach, since defensive medicine costs dwarf those of malpractice insurance.

Florida recently did something interesting for doctors in the Emergency Department (ED). The state will be the responsible party in the event of a lawsuit, not the physician. It’s important to note that ED is the profession in which the greatest amount of defensive medicine is being practiced.

There seems to be a consensus forming that the best method of reducing overall medical costs is not via tort reform, but rather, in controlling the motivations for defensive medicine. Seen in that light, the plan implemented in Florida may have merit.

Also exposed, as a fallacy, is the myth that the primary motivation for unnecessary tests or treatments is financial. But very few doctors receive any remuneration for referrals or tests. In fact, many such kickbacks are illegal. Drugs, lab tests and referrals are simply not a source of income for doctors, except in very rare instances.

Often touted as necessary elements in any plan to curtail the practice of defensive medicine is the removal of financial responsibility from the physicians’ shoulders and review by peers, rather than by administrators with no familiarity of medicine.

The Future of Defensive Medicine

There are a number of reasons that many express doubts that there will soon be major improvement to these unnecessary costs. Litigation seems to be such a deeply entrenched aspect of U.S. society that immunity to lawsuits may be the only way to defuse it. Florida’s ED experiment may prove sufficiently successful to convince lawmakers in other states to follow suit.

A peer review process for malpractice claims would seem to make a great deal of sense. Unfortunately, there is always hesitance to allow any industry to police itself, even though the legal profession does so, as well as many engineering disciplines, so there may also be hope on that front.

There has always existed a certain level of trust between doctor and patient, and this relationship suffers on both sides from the practice of defensive medicine.  In fact, it’s a three-sided loss:

  • The patient is subjected to procedures and treatments that may be unnecessary and can experience delays in treatment and additional expense as a result, and in some cases, can pose additional risks.
  • The physician feels forced to dedicate more resources than necessary to the diagnosis and treatment of ailments in order to protect himself and his practice. This can also result in resources being unavailable for other cases in which they’re sorely needed.
  • The insurers face additional burden in processing approvals and payments for what may be many more times what is necessary. This, as well as the medical payments, results in cost increases for medical coverage.


Probably the most effective approach to overcoming (and hopefully, reversing) these issues is one of educating the public, while pressing for legislative change for the financial responsibility and peer review models. This begins with educating your patients.

If a procedure or test may be effective, it should be presented to the patient in that fashion, citing all the possible downsides, benefits and side effects. Hospital administrators should try to resist the temptation to automatically refer even the most straightforward ER issues to full batteries of tests and lab work.

In short, the trust of the patient-doctor relationship must be nurtured, with clear communication being its foundation.

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