Although depositions can be highly stressful events, I was fairly composed that hot September afternoon. Reviewing my records, I found the piece of evidence that ultimately saved me from further legal turmoil. Dorothy’s persistent back pain was consistent with lumbar spine disk disease, and although she lacked any of the worrisome red flag features, I had ordered a totally unnecessary magnetic resonance imaging (MRI) study. It demonstrated what I already knew: multilevel lumbar disk space narrowing. There were no surprises. So why did I order it? I was practicing defensive medicine. She insisted on having the test, and I relented. Sitting in the law firm’s conference room, I was relieved that I had made this costly decision, one that likely saved me from becoming a co-defendant in a malpractice lawsuit.
Defensive medicine and medical malpractice are inextricably twisted into healthcare’s version of the Gordian knot. Physicians’ fear of malpractice litigation drives defensive medicine behaviors. We order more tests in a fruitless effort to reduce our potential liability to as close to zero as possible. Simply stated, the mere thought of having to appear in court to defend one’s medical decisions strikes terror in our hearts and minds. We are entrusted to care for our patients, and when we are sued, we feel as though we are failures. Life does not return to normal for many malpractice defendants. Doctors who have faced litigation have higher rates of anxiety and depression than their peers in other professions who face similar legal woes.1
However, there is a downside to defensive medicine. Excessive laboratory testing and overprescribing of drugs can lead to more costly and more dangerous care. For example, the widespread overuse of computerized tomography and magnetic resonance imaging in the evaluation of many of our patients is fueled by our own fears and aided and abetted by risk-averse radiologists who often conclude their reports by recommending additional imaging studies, “just to be safe.” Sometimes, the extra data generated by these tests beget even more medical errors and, ultimately, expose physicians to more litigation. After all, false-positive results abound in medicine. The true financial cost of defensive medicine is hard to quantify, although estimates run as high as $650 billion annually or nearly one-quarter of all U.S. healthcare costs.
Physicians’ fear of malpractice litigation drives defensive medicine behaviors. We order more tests in a fruitless effort to reduce our potential liability to as close to zero as possible.
Malpractice: Then & Now
An opinion piece written by the leadership of the Massachusetts Medical Society once referred to the “alarmingly frequent” prosecutions of doctors for malpractice and the belief that some surgeons were closing their practices because of this hostile situation.2 This statement may describe the current state of affairs, but it was actually written in 1850. Some historians consider this era to be the time when medical malpractice litigation exploded. A cadre of physicians who were trained in medical schools was replacing the medical quacks and other hucksters who offered frivolous remedies. Medical textbooks and journals began to appear, creating a proper environment for the establishment of practice standards. Although these were positive changes, they came with one major drawback. Lawyers could now challenge doctors in court whenever their care was believed to deviate from these standards. Physicians could no longer resort to a common legal defense, aptly described in 1849 by a U.S. Navy physician, William Wood, MD:3
