Medical Malpractice and Physician Liability: Examining Alternatives in Defensive Medicine

Abstract

One frequently overlooked side-effect of the current medical malpractice crisis in the U.S. is the fact that it encourages doctors to practice defensive medicine. Under the current system, doctors face incentives to order more diagnostic tests, over-prescribe pharmaceuticals, schedule unnecessary follow-up visits, and prolong patient stays in order to limit their exposure to malpractice liability. All of these clearly have detrimental effect on health care quality in addition to driving up costs. This paper examines the phenomenon of defensive medical practice, its causes, potential benefits, and problematic effects on both the cost and quality of health care in America. An exhaustive literature supplemented by interviews with doctors and lawyers reveals that the primary causes of defensive medicine are psychological rather than financial. Doctors fear enduring a long, protracted trial far more than they fear its financial consequences, in part because malpractice insurance protects them from monetary penalties. Interestingly, existing reforms have typically focused on limiting the financial liability of physicians who are sued for malpractice. Instead, states should consider exploring such alternatives as alternative dispute resolution, enterprise liability, selective no-fault liability, and the use of clinical practice guidelines.

Keywords: defensive medicine, health care quality, medical malpractice