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Medical malpractice lawsuits have long been under attack. Whether it is the insurance industry arguing for caps on damages, or politicians accusing “greedy trial lawyers” of exploiting the judicial system to trick juries into awarding “jackpot” verdicts on behalf of their clients, or physicians and physicians groups complaining that the threat of lawsuits drives a wedge between the doctor-patient relationship, the smear campaign against the mere concept of medical negligence claims is relentless.

For years, the catch-phrase “frivolous lawsuits” was so closely associated with medical malpractice cases that it was almost assumed that any case involving an injured patient suing a doctor or a hospital must be a fraudulent attempt to bilk the system out of millions of dollars. These bogus lawsuits, so the argument went, were driving up the cost of medicine and driving doctors out of business. Who can ever forget former President George W. Bush stumping for medical liability tort reform back in 2004 with this unintentional double entendre?

We've got an issue in America. Too many good docs are getting out of business. Too many OB-GYNs aren't able to practice their love with women all across this country.

Lawyers handling cases on behalf of injured patients encountered anti-plaintiff bias in the courtroom, with prospective jurors ranting against frivolous lawsuits during jury selection before they had even heard a single fact about the case about to be tried. Potential clients would apologize for even considering a malpractice suit – “I’m not the type of person who sues…” – as if there was some shame in seeking recompense for being victimized by substandard medical care. For a time, it seemed like the “frivolous lawsuit” label would lead to a massive overhaul of the justice system, with Congress repeatedly considering federal legislation to kneecap medical negligence cases.

The problem was, it wasn’t true. Frivolous lawsuits were not prevalent. A careful review of the system showed that meritless cases were weeded out long before they reached the courthouse steps. Medical malpractice cases are enormously expensive to pursue and very difficult to win. As a result, lawyers were only pursuing cases involving grievous provable medical errors that resulted in serious injuries to or the death of a patient. Movies like Hot Coffee shed some light on the issue. Texas tort reform was a failure. Efforts to impose federal tort reform stalled time and again.

The new line of attack against the medical malpractice system is the assertion that, because of the mere threat of a lawsuit, doctors practice “defensive medicine” and drive up the cost of health care. In a recent call to reform the medical malpractice system, the Center for American Progress explained the perceived need for tort reform as follows:

Faced with both financial and nonfinancial costs, the risk of being sued may cause physicians to practice what is known as defensive medicine, or the ordering of excessive and unnecessary medical tests, procedures, or further consultations done in part to protect the physician from accusations of negligence. Defensive medicine increases health care costs without improving health outcomes.

In the most recent peer-reviewed study, orthopedic surgeons recorded in real time whether imaging was required for clinical care or ordered for defensive reasons and found that physicians ordered 19.1 percent of imaging tests and 38.5 percent of MRIsfor defensive reasons. Tellingly, physicians who had been sued within the past five years were substantially more likely to order defensive imaging. The same was true for physicians who had practiced medicine for more than 15 years.

This study is consistent with many previous studies finding that 80 percent to 90 percent of physicians report practicing defensive medicine due to fears of medical-malpractice claims. In another study, in which physicians were given different clinical scenarios, the nonpartisan Office of Technology Assessment found that, on average, 8 percent of physicians chose a clinical action for primarily defensive reasons, and in certain situations, the rate was much higher. Several other peer-reviewed studies have found that malpractice costs are associated with increased health care utilization, particularly of diagnostic and imaging procedures. To the extent that this increased utilization does not improve patients’ health outcomes, it represents defensive medicine.

Translation: in a survey designed to elicit information about whether the threat of lawsuits leads to ordering “unnecessary” tests, the very doctors who (understandably) do not want to get sued claim that yes, they practice defensive medicine. This is a win-win position both for the tort reform lobby and for the doctors who are ordering these unnecessary tests. Health care costs are out of control, right? Everybody knows that our health care system is going to bankrupt America, right? Everybody hates medical malpractice lawsuits, right? Instead of focusing on the fact that the fee-for-service reimbursement system incentivizes doctors to order tests (in other words, for every test a doctor orders, there is a bill and usually a corresponding payment), it is much easier to “blame the lawyers” again and use this epidemic of over-testing and over-billing to justify a call to change the medical malpractice system.

A recent horror story out of Chicago underscored the fact that there might just be another explanation for why a doctor or hospital would be tempted to order/perform unnecessary medical services: Greed. In its article entitled “Chicago hospital seen cutting throats for $160,000 from Medicare” the Chicago Tribune reported:

Based in part on surreptitious tape recordings, an FBI affidavit lays out allegations that a Sacred Heart pulmonologist kept patients too sedated to breathe on their own, then ordered unneeded tracheotomies for them — enabling the for-profit hospital to reap revenue of as much as $160,000 per case.

A tracheotomy (or tracheostomy) is a procedure that involves cutting a hole in a patient’s windpipe to insert a tube that allows the patient to breathe without their nose or mouth. A patient who can breathe on his own does not need a tracheotomy. According to the article, both the hospital and some doctors were profiting from the practice, which appeared to be associated with an increased risk of patient death:

A Sacred Heart surgeon performed tracheotomies on 28 Medicare patients between early 2010 and January, according to the affidavit, which doesn't identify the surgeon by name. Five patients died within two weeks — a death rate three times the statewide rate in Illinois.

If true, then the culprits should go to jail. Undoubtedly, the victims of this heinous practice and their families should be entitled to pursue claims through the justice system. But something else should come out of this macabre story – – a closer look at the bald assertion that unnecessary medical services occur only because doctors are practicing “defensive medicine.”

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