The Culture of Defensive Medicine: Is Tort Reform Necessary?

This paper examines the culture of defensive medicine that has spread rapidly across the United States in response to an increase in malpractice lawsuits and staggering malpractice insurance premiums in certain high-risk medical and surgical specialties. Due to the presence of this culture, it is important to question whether tort reform (e.g. placing caps on jury awards) is necessary to curb rising malpractice insurance premiums and reduce the implicit costs of defensive medicine. Based on compelling data, placing caps on jury awards for pecuniary and non-pecuniary damages will reduce malpractice premiums, ensure fair compensation for victims of medical negligence, and encourage physicians to practice sound medicine in high-risk specialties by dismantling the culture of defensive medicine prevalent throughout the United States. The culture of defensive medicine is defined by the Office of Technology Assessment as the practice of “order[ing] tests, procedures, or visits, or avoid[ing] high risk patients or procedures, primarily (but not necessarily solely) to reduce [doctors’] exposure to malpractice liability.”1 Indeed, as two prominent economists, Kessler and McClellan, argue, “Defensive medicine is a potentially serious social problem: if fear of liability drives health care providers to administer treatments that do not have worthwhile medical benefits, then the current liability system may generate inefficiencies many times greater than the costs of compensating malpractice claimants.”2 Even more troubling, Studdert et al. surveyed 824 physicians on the prevalence of defensive medicine in their practice: 93 percent reported that they sometimes or often engaged in defensive medicine outlined in the survey.3 Many of the respondents to the survey also reported that they had restricted the scope of their clinical practice because of liability concerns (42 percent) and/or were likely to do so further in the next two years (49 percent).3 It is critical, therefore, for policymakers and future healthcare professionals to have a sound understanding of the defensive medicine culture (and the benefits of tort reform) to understand how it contributes, along with other factors, to current “expenditures [of U.S. healthcare which are predicted to rise] from $1.6 trillion in 2002 (14.9 percent of gross domestic product) to $3.6 trillion by 2013 (18.4 percent of gross domestic product).”4