02/01/2016 // Hartford, CT, USA // cttriallawyers // Neil Ferstand // (press release)
If you are unfamiliar with the term, a common definition of defensive medicine is the practice by a physician of ordering precautionary treatments, tests and procedures largely or entirely to avoid potential liability. The concept came into prominence when the AMA started using the term in the mid to late 60s and it started to gain traction sometime in the 1970’s. The medical industry claims the costs associated with defensive medicine significantly add to the costs of U.S. health care.
The problem with this claim is that not one shred of evidence or research that has been authenticated or peer reviewed, supports the notion of defensive medicine driving costs. In fact in study after study of this claim, and there have been many, the contrary has been true. In one of the most recent conducted in 2014 at Northwestern University entitled, “Do Doctors Practice Defensive Medicine, Revisited”, the authors examined health care spending trends in nine states that had enacted tort reforms.
Their finding: “[O]ne policy conclusion is straightforward: There is no evidence that limiting medical malpractice lawsuits will bend the healthcare cost curve, except perhaps in the wrong direction. Policymakers seeking a way to address rising healthcare spending should look elsewhere.”
Taking the issue a step further, it is not unfair to compare claims of defensive medicine to health care fraud. To believe that defensive medicine is actually driving costs one must also believe that doctors are conducting unnecessary tests and billing for them – resulting in insurance companies, state and federal governments paying for them.
Take Medicare or Medicaid as an example. A doctor who bills for tests or procedures done for a personal purpose, such as possible lawsuit protection, as opposed to what is medically necessary is committing fraud under state and federal law. Medicare law specifically states that “[N]o payment be made……for any expense incurred for items or services…which…are not reasonable and necessary…”
More importantly, the Medicare claim form (Form 1500) requires providers to expressly certify that services were medically indicated. If not, the claim is false. As a recent reminder, there have been several Medicare fraud investigations conducted in Connecticut and nationwide. It is unknown whether the fraud conducted, contained unnecessary testing or billing for tests and procedures never conducted.
Alternatively, there are other reasons doctors order too many tests and procedures: workload and revenue. In a 2013 survey of hospital attending doctors published in JAMA Internal Medicine, 22 percent of physicians reported that workload led them to “order potentially unnecessary tests, procedures, consultations, or radiographs due to not having the time to assess the patient adequately in person”.
In other words a heavy workload, not fear of a lawsuit, caused the ordering of extra tests.
In 2014 UCLA Medical School conducted a review of 2012 Medicare data which showed that “high-earning clinicians make more money by ordering more procedures and services per patient rather than by seeing more patients, which may not be in patients’ best interest.” The lead author Professor Jonathan Bergman, MD, MPH, found that “…the findings suggest that the current health care reimbursement model may not be creating the correct incentives for clinicians to keep their patients healthy.”
Defensive medicine ranks right up there with the Loch Ness monster and Bigfoot – many people have claimed they’ve seen it, but no one can find it.
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