Is Defensive Medicine Driven by Fears of Medical Malpractice in Massachusetts?

The Massachusetts Medical Society has published a report suggesting that doctors in Massachusetts are ordering thousands of tests as a result of “defensive medicine.” As a result, the Society argues, health care costs in Massachusetts are increasing unnecessarily. The Society also argues that in order to trim these rising costs, medical malpractice reforms are necessary.

These claims have, of course, been made before. For over twenty years doctors have been claiming that malpractice claims have driven them to excessive testing. However, independent analysis in 2004 at the Congressional Budget Office found the evidence that defensive medicine was contributing to soaring insurance costs to be “weak and inconclusive.” And, as Marc Breakstone, a member of the firm of Boston medical malpractice firm of Breakstone, White & Gluck, PC, pointed out in the Boston Globe today, managed care and utilization review reduce medically unnecessary tests.

Ronald Gluck, another member of the Massachusetts malpractice firm, Breakstone, White & Gluck, P.C., explained to the National Law Journal that there were serious questions about the survey data. He also pointed out that many tests must be approved by insurance companies, which help reduce unnecessary testing.

There are, of course, other sides to this story. Physicians who order more tests may be increasing their own revenues by billing for the tests.  And hopefully, the extra testing has some benefit for patients, who can be reassured when conditions are actually ruled out.

The claims of the Medical Society are quite stark. They report that 83% of the doctors they surveyed reported practicing some level of defensive medicine. The report also indicates 18-28% of tests and procedures, and 13% of hospitalizations were ordered to avoid lawsuits.

How reliable are these results? Well, when you read the Society’s disclaimer, you can see a lot of red flags. In their own words:

    This study is based entirely on self-reported measures whose validity and reliability have not been established. Physicians’ reports of the frequency of defensive practices may have errors due to recall bias. In addition, social desirability may have lead physicians to report higher rates of defensive  practices in an effort to bring attention to what they and the Society perceive to be a wasteful and  potentially harmful situation. Conversely, concerns over acknowledging tests and procedures that  were not motivated by medical necessity may have suppressed reports of defensive practices.  Confirmation of these patterns with data from chart reviews and other more objective measures  would enhance the validity of our results. Finally, the response rate for this survey, while in the e  expected range for a study of physicians, was lower than what is considered optimal. To address this  issue, we conducted separate analyses using multiple imputations, a simulation-based approach to  the assignment of missing data.

In other words, the study’s reliability has not been established; the data is unreliable; the response rate was low; and some data analysis required “multiple imputations.” (Would a defensive linguist say the conclusions were “made up”?)

Just the same, it is not a surprise that, in their press package promoting the report, the Massachusetts Medical Society also called for sweeping medical malpractice reforms and freedom from liability when a doctor apologizes for his or her mistakes. (See our previous comments on “I’m Sorry” medical malpractice legislation.)  The legislative season will soon be upon us, and the lobbying by doctors for protection from malpractice cases has just begun.

At Breakstone, White & Gluck, we have been active in opposing medical malpractice “reform” for over a decade. We have frequently testified at the State House against legislation which would prevent an injured victim from recovering his or her damages resulting from the negligence of a doctor, hospital, or other medical provider.

If you feel you have suffered from a medical malpractice injury, please contact us and allow us to help you review the matter.

For more details:
Doctors’ fear of lawsuits tied to added costs of $1.4 billion, Boston Globe, 11/18/08
Investigation of Defensive Medicine in Massachusetts, Massachusetts Medical Society, Nov. 2008