The Paradoxes of Defensive Medicine

61 Pages Posted: 26 May 2020

See all articles by Michael J. Saks

Michael J. Saks

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Stephan Landsman

DePaul University - College of Law

Date Written: April 27, 2020

Abstract

For decades, “defensive medicine” has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice is widely believed to exist throughout American healthcare as a response to fears of malpractice litigation, and thought to be enormously wasteful of healthcare dollars. In consequence, it has become a justification for law reforms insulating the healthcare industry from tort liability. These claims are promoted by the healthcare industry even though they imply that most providers routinely engage in healthcare fraud and violate their own ethical rules. We review the evidence behind these beliefs — including direct physician surveys, clinical scenario studies, and multivariate analyses of actual case data — and find little support and numerous paradoxes. The validity vel non of the defensive medicine narrative has implications for law and legal policy, as well as healthcare economics and patient safety.

Keywords: defensive medicine, health law, torts, malpractice

Suggested Citation

Saks, Michael J. and Landsman, Stephan, The Paradoxes of Defensive Medicine (April 27, 2020). Michael J. Saks and Stephan Landsman, The Paradoxes of Defensive Medicine, 30 Health Matrix: Journal of Law-Medicine, 25 (2020), Forthcoming , Available at SSRN: https://ssrn.com/abstract=3587101

Michael J. Saks (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

111 E. Taylor Street
MC-9520
Phoenix, AZ 85004
United States

Stephan Landsman

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL 60604-2287
United States
312-362-6647 (Phone)
312-362-5448 (Fax)

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