Our medical malpractice attorneys in Chicago have often written about the falsehoods and misinformation behind the movement for so-called “tort reform.” One area of misinformation has gotten some play recently: the idea of “defensive medicine.”
Defensive medicine is a term coined by proponents of “tort reform” to describe the supposed overuse of unnecessary or unjustified tests and procedures, simply to avoid a future malpractice lawsuit. As our medical malpractice lawyers have previously discussed, the practice of defensive medicine may itself constitute fraud, if the doctor is billing federal or state Medicare or Medicaid programs for these tests and services. Submitting a bill to these programs for services which were not medically necessary or justified is fraud on the government, and is not only unethical, it is a crime.
More fundamentally, however, there is absolutely no evidence that: (1) doctors are practicing “defensively” to the detriment of their patients’ health; or (2) medical malpractice lawsuits have anything to do with it.
For instance, in a recent New Yorker article, Dr. Atul Gawande quoted his discussions with McAllen physicians of various specialties, and talked to them about why McAllen had the most expensive health care in the nation. The physicians initially blamed malpractice suits, claiming that the town was “legal hell.”
But when pressed about the fact that Texas’ tort reform laws had so curtailed patient’s rights that malpractice lawsuits in the state had dropped “practically to zero,” the physicians admitted that these arguments were “bullshit.” Medical care in the town was expensive, they admitted, because doctors increased fees and charges by ordering extra tests, procedures, and other medical services.
In other words: (1) doctors and hospitals made more money by ordering extra tests and providing additional medical services; and (2) those tests and medical procedures, if anything, improved patient care; and (3) the irrational fear of medical malpractice had no impact on this practice.
Indeed, a new study out of the University of Iowa, led by David Katz, M.D., found that physicians’ reported fears of being sued for malpractice are in fact irrational — because doctors are not being sued, and are not held liable, for conduct that falls within the agreed-upon standard of care within the medical community.
Nevertheless, the hype and lobbying over tort reform has become so pervasive that physicians believe they are in constant peril of being sued for “frivolous” lawsuits, even when this is not the case. There is absolutely no mention of all of the safeguards in place to prevent against inappropriate lawsuits, such as: (1) the requirement in nearly every state, including Illinois, that a doctor must file a sworn affidavit that there is a merit to the malpractice lawsuit before such a suit can be filed; (2) judges can sanction inappropriate lawsuits; (3) lawyers representing plaintiffs typically have contingency arrangements with their clients — meaning if the plaintiff loses, his or her lawyer gets nothing — and is out all of the expenses paid with respect to the lawsuit.
Conversely, what fears are completely rational? Those of patients. As our medical malpractice attorneys have previously reported, according to the U.S. Department of Human Services, when a patient enters the hospital she has a one in seven chance of being harmed there, including medical injury that leads to severe, permanent disability or death.
Clearly, the proper solution to a misperceived defensive medicine epidemic is not to take away the legal rights of the one in seven patients whom these doctors injure. It is time to end, once and for all, the specter of “tort reform” and move forward with real reforms to reduce malpractice suits – instituting and following proper procedures that will prevent medical malpractice in the first place. In the meantime, our attorneys stand ready to defend the rights of the victims of this plague of bad medicine.
For a free consultation with an experienced Chicago malpractice injury lawyer at Passen Law Group, call us at (312) 527-4500.