Saks and Landsman, ‘The Paradoxes of Defensive Medicine’

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.

Saks, Michael J and Landsman, Stephan, The Paradoxes of Defensive Medicine (April 27, 2020), 30 Health Matrix: Journal of Law-Medicine, 25 (2020), forthcoming.

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