New Study Finds Defensive Medicine NOT Fault of Trial Lawyers

Posted By: Tony Baratta | October 23rd, 2014

 Some physicians claim to order a large number of unnecessary and expensive tests, such as CT scans or MRI’s, not because patients need them but to protect themselves from lawsuits.  The “defensive medicine excuse” is one argument used by physician lobbying groups to persuade lawmakers to enact tort reform.

A new Rand Corporation study, published in the New England Journal of Medicine (NEJM) on October 16th finds that laws which practically immunize emergency room doctors from lawsuits have no effect on the ordering of expensive tests, debunking the theory that “defensive medicine” is the fault of lawyers.

The Rand researchers looked at three states, Georgia, Texas and South Carolina, each of which changed the legal malpractice standard for emergency care to gross negligence from a failure to exercise ordinary care standard.  That means, in those three states, a victim of harm must prove that the emergency care provider knowingly acted in such a way to cause harm, as opposed to making a mistake that should not be made.  This change in the law in these three states had the practical effect of virtually immunizing emergency care workers and in fact the legal filings for emergency room mistakes in those states plummeted after the laws were enacted.

So, if the “defensive medicine is the fault of trial lawyers” claim is true, you would expect that the amount of expensive testing ordered in these three states would drop.   The Rand researchers examined 3.8 million Medicare patient records from 1,166 hospital emergency departments from 1997 to 2011.  They compared care in the three reform states, before and after the statutes were enacted, to care in neighboring states that did not pass similar reforms.  The study looked at whether physicians ordered advanced imaging studies such as CT’s or MRI’s and whether the patient was admitted to the hospital after the ER visit.  The result: the reform laws had no effect on the rate of imaging or upon the rate of admission. 

So, at least there is now a study to prove what is simply logical….lawyers are not at fault for ordering expensive tests like MRI’s and CT’s.   These tests are ordered because a physician believes the tests are reasonable and necessary to prevent harm to their patients.  To accept the argument that physicians order unnecessary and expensive tests only to protect themselves from a potential lawsuit, and not for the benefit of the patient, is tantamount to insurance fraud against billers like Medicare, Medicaid and private insurance carriers.

So, like many of the arguments made by physician groups which have successfully used trial lawyers as scapegoats for their increased insurance premiums, the “defensive medicine excuse” can be debunked as well.

At BRB we fight to ensure victims of medical negligence are fully compensated.  It is a very difficult, intensive, expensive and risky fight given the daunting statistics of jury verdicts that largely favor the medical profession.  But a victim of medical negligence, and their family, should not be left holding the bag of suffering without the responsible party held accountable.

About the Author

Anthony J. Baratta (Tony) is a trial attorney. He has tried more than 50 cases to Juries in State and Federal Courts and has litigated thousands of personal injury and medical malpractice cases in his 30-year career. Tony is the founding partner of Baratta, Russell, & Baratta and an active board member of the Pennsylvania Brain Injury Association (BPIA). Tony is also on the board for the Philadelphia VIP and performs pro bono work for the Laurel House, a non-profit for victims of domestic abuse. In addition, Tony is a member of the Million Dollar Advocates Forum for trial attorneys, voted one of Philadelphia’s Super Lawyers for the past 14 years, and a 2018 recipient of the First Judicial District Pro Bono Award for the Civil Trial Division.

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