Doctors Need to Uphold Standards of Care
Voters in California, this week rejected a proposal, which would have raised medical malpractice damage caps and required drug testing for doctors. The proposal was opposed by a well-funded campaign led by malpractice insurance companies and the California Medical Association. Opponents claimed that the proposed law would increase the cost of health care, an assertion which has recently (and repeatedly) been proven untrue.
“Defensive medicine” and Tort reform
Insurance companies and medical societies often fall back on the term, “defensive medicine.” Defensive medicine is decision making based mainly to protect the physician against a possible medical malpractice lawsuit filed by the patient. The argument goes like this: “doctors order and perform unnecessary medical tests in order to protect themselves, thus increasing overall costs of care.” These special interest groups argue that Tort reform is necessary in order to reduce the cost of defensive medicine.
But is the argument in favor of Tort reform true?
It is not true. Recent studies, like one in the New England Journal of Medicine last month reveal that laws designed to reduce malpractice claims do not reduce the cost of care. Supporters of malpractice reform have argued for decades that fear of lawsuits results in “defensive medicine” — unnecessary medical tests and procedures performed by health care providers simply to avoid being sued. After reviewing the results in three states that have implemented malpractice reform, the NEJM study found that laws making it harder for victims to recover reasonable and adequate compensation have almost no effect on the practice or cost of medicine.
Medical malpractice victims deserve fair compensation
The NEJM study does not explain why fair compensatory awards have so little impact on the cost of medicine, but I have my opinions based on over 20 years of experience as a medical malpractice lawyer representing both medical professionals and injured patients.
Tort reform merely protects special interests, like insurance companies from compensating injured patients for failures to adhere to standards of medical care, standards that are set by the medical community. A standard of care is a medical or psychological treatment guideline, and can be general or specific. It specifies appropriate treatment based on scientific evidence and collaboration between medical and/or psychological professionals involved in the treatment of a given condition.
The special interests are therefore, trying to rename “standards of care” as “defensive medicine.” If doctors are practicing “defensive” medicine, meaning that they conform with standards of care to protect the best interests of their patients, then I for one am all for “defensive” medicine.
Too many people are victims of medical negligence, and good doctors do not have to fear the tort system. The tort system will protect them as it protects injured patients.
This article is written by Sanders Firm associate Theodore Goralski.