There is no scientific or legal definition of what “defensive medicine” is, so we can’t look there.  All we have is the colloquial definition of defensive medicine as when a doctor orders a procedure because he or she is afraid of being sued, not because the treatment is medically necessary.  Some argue that if we make it harder for doctors to be sued, defensive medicine will decrease, and the concomitant decrease in unnecessary procedures will lower healthcare costs.  One problem with this argument is that there are already checks in the system that prevent doctors from ordering unnecessary procedures.  Insurers (including Medicare & Medicaid) have guidelines as to when they will pay for a specific procedure. 

For every injury or illness, there are a range of possible treatments.  The (very crude) drawing below represents that range.  At the left end of the scale is to “do nothing” and see if the injury gets better on its own.  At the far right end of the scale is immediate surgery to try and correct the problem.  The bracket in the middle represents treatment within the permissible standard of care for a hypothetical injury.  For this hypothetical injury, it would be inappropriate to do nothing, and it would also be inappropriate to take the patient to surgery immediately.  Medically appropriate treatments might include administering drugs, ordering an inexpensive diagnostic test, and ordering an expensive diagnostic test.    Doctor Smith may be conservative with his treatment and decide to order an inexpensive diagnostic test, while Doctor Jones may be aggressive and order the administration of drugs and the expensive diagnostic test.  While both doctors treated the same injury in different ways, neither doctor committed malpractice.  More importantly, if Doctor Smith is afraid of being sued and orders the expensive test, we cannot say that his fear of being sued led him to order a medically unnecessary test.  The worst we can say is that the tort system nudged the doctor towards being more cautious. 

Let’s tweak the hypothetical and make it a little more interesting.  Assume that Doctor Smith buys the machine that does the expensive diagnostic tests.  When he bought the machine, he had to finance it, and has a monthly payment for the machine.  Now, when he orders that expensive test, he is paid for doing so.  Do you think he is more likely to order the expensive test because he’s afraid of being sued, or because the profit from running the expensive test helps him pay that monthly payment?If we really want to minimize the incentives for doctors to err on the side of caution (does that really sound like a good idea?) then perhaps we should be more concerned about the financial incentives doctors have to err on the side of caution. 

The “reform” crowd often argues that lawyers practice law in accordance to what’s best for themselves, and not for their clients.  Is it really so hard to believe there are some doctors who practice medicine the same way? And is it really so hard to believe that those same doctors invented the concept of “defensive medicine” so they can blame lawyers for their pursuit of their own self-interest? 

So part of me is cringing a bit because there’s another McDonald’s burn lawsuit moving forward through the courts: 

When Frank Sutton bit into his sandwich, scalding grease “flew all over his mouth,” a fellow diner recalled. Mr. Sutton’s wife took ice from her drink and applied it to his face, but his lips blistered. When he told one of the employees, he testified that she said “this is what happens” to the sandwiches “when they aren’t drained completely.” The next morning, he found that his lips had bled on the pillow.

Seven months later, his injuries still had not completely healed. He says he avoided certain work assignments at his job of refurbishing and assembling outdoor amusement rides if he thought they would make his lip condition worse. Mr. Sutton sued McDonald’s and the local franchisee, alleging that he had suffered $2 million in medical bills, lost wages, and pain and suffering.

Source: Editorial - A Nonfrivolous Suit - NYTimes.com

It is my sincere hope that those of us who value a robust civil justice system don’t let Frank Sutton become a victim of the “tort wars.”  How about getting in front of this one and making sure that the media (with the help of the “reform” crowd) doesn’t distort these facts?

With comprehensive health care legislation foundering in Congress, the House Wednesday passed a narrower piece of legislation that lawmakers hope has widespread, populist appeal: repealing the antitrust exemption for health insurers. The measure now goes for consideration to the Senate, where it's prospects are not clear.

Proponents say that the legislation would spur competition among insurers and bring down costs for consumers. Reps. Tom Perriello, D-Va., and Betsy Markey, D-Colo., who are sponsoring the bill, said in a press release it would “end special treatment for the insurance industry that allows them to fix prices, collude with each other, and set their own markets without fear of being investigated.”
But many antitrust experts say that ending the exemption -- by repealing the 1945 McCarran-Ferguson Act -- wouldn't significantly increase competition or reduce premiums.

Source: The Antitrust Exemption For Health Insurers: Meaningful Or Not? - Kaiser Health News

Bashar Ashkar should be at work running the seven-figure engineering firm that bears his name, or helping his wife, Shari, plan his daughter Lauren's fall wedding.

Instead, the 63-year-old spends most days lying down or sitting up in his Houston nursing home room, staring straight ahead at a wall of family pictures.

They're a daily reminder of his life before July 14, 2005, when a steroid injection into his spine for arm and back pain resulted in a cerebral hemorrhage that locked him forever inside a useless body.

To communicate, he relies on what he has left, his ability to nod “yes” or shake his head “no” in response to visitors' questions or to spell out his answers from a letter board Lauren or her twin sister, Nora, hold up.

. . . .

For his pain and suffering, Bashar Ashkar received $60,307.60. His wife's ordeal was worth $101,145.28.

Source: Paralyzed in body - and by law | Dead by mistake

About a week after my father’s death, The New Yorker ran an article by Atul Gawande profiling the efforts of Dr. Peter Pronovost to reduce the incidence of fatal hospital-borne infections. Pronovost’s solution? A simple checklist of ICU protocols governing physician hand-washing and other basic sterilization procedures. Hospitals implementing Pronovost’s checklist had enjoyed almost instantaneous success, reducing hospital-infection rates by two-thirds within the first three months of its adoption. But many physicians rejected the checklist as an unnecessary and belittling bureaucratic intrusion, and many hospital executives were reluctant to push it on them. The story chronicled Pronovost’s travels around the country as he struggled to persuade hospitals to embrace his reform.

Source: How American Health Care Killed My Father - Magazine - The Atlantic

And this is another reason I don’t buy into the “defensive medicine” argument.  How can the fear of lawsuits drive doctors to spend billions on unnecessary tests, but not drive them to wash their hands?  If a doctor doesn’t order an MRI, the odds are he or she can find a doctor to say it wasn’t malpractice to fail to do so.  But no doctor will testify that it’s OK not to wash your hands before you operate on a patient.  As long as doctors keep making basic and preventable errors, you have ample evidence that doctors are not paralyzed by the fear of malpractice suits.

P.S. – This article was brought to my attention by a soon-to-be new contributor to the site.  If you’ve got something you think I should see, or if you’d like to contribute to the site, drop me a line at justinian at justinian dot us.

To think that [tort “reform”] would significantly change health care costs is like believing that a Mack truck can be diverted by a June bug — even a moderately large June bug — hitting its windshield.

There are reasons to suspect even that analogy overstates the result.

Source: Tort reform won't control health spending. - STLtoday.com

I would also point out that fear-of-being-sued is not the only reason that doctors order unnecessary procedures.  Remember, doctors charge money for and get paid for even unnecessary procedures.  Even if we completely eliminate all medical malpractice lawsuits, there will still be doctors who order unnecessary procedures just because it puts money in their pockets.  Let’s not pretend otherwise.

But there’s a serious flaw in that argument, and it’s called subrogation.  Assume that a doctor makes a medical error during a surgery, and that error necessitates a second surgery.  If the patient files a medical malpractice lawsuit and recovers any money, the insurer who paid for that second surgery will get reimbursed for its expenses.  That right of the insurer to be reimbursed is referred to as the right of subrogation.  If the patient doesn’t file a malpractice lawsuit, the insurer ends up footing the bill for the second surgery.  And if the insurer is Medicare or Medicaid, “the insurer” is actually the taxpayers.

The problem with the current debate over how much money malpractice reform may save is that it doesn’t take into account how much money the government recovers every year through malpractice lawsuits.  Considering that the cost of a second (or third) surgery is generally far more expensive than running an unnecessary test, it’s entirely possible that we’ll lose more money than we save.  If we’re going to justify medical malpractice reform on the ground that it will save us money, we cannot seriously evaluate that justification until we know exactly how much money we’re taking in through subrogation, and until we figure out how much of that money we’ll lose through enacting malpractice reform.

Is it too much to ask that if we’re going to make decisions based on numbers, we base the decision on all of the numbers?

The Illinois Supreme Court says limiting damage amounts in medical malpractice cases violates the state's Constitution.

In an opinion filed Thursday, the court says such caps violate the principle of separation of powers. The court says the limits the Illinois General Assembly adopted in 2005 would infringe on the judicial branch's power.

Medical providers quickly warned that the ruling could hurt patients' access to doctors and hospitals because of increased costs.

Source: Illinois Supreme Court strikes down limits on damages in medical malpractice cases - Breaking news - bnd.com

• Negligence
• Statute of Limitations
• Summary Judgment

If there’s a term you think I should add, or think I should expand on an existing term more, please either email me or comment here and I’ll do so.

• CJ&D’s blog, ThePopTort, has for the second year in a row been selected as one of the 100 best legal blawgs by the American Bar Association.  You can help turn that good news to great news by voting for The PopTort in its individual category.  First, register here (it’s quick and free.)   Second, simply click here and vote for it.  I’ll wait patiently while you go register and vote for it.  This is a big honor for the CJ&D, as there is a lot of competition to be in the top 100 legal blawgs by the ABA.
• The CJ&D has also launched its own Facebook page, with lots of great photos including some hilarious scenes outside its window in Lower Manhattan.   You may already be a Facebook fan of ThePopTort, but now CJ&D has a page, too.  Why not become a Facebook fan of both ThePopTort and the CJ&D today?
• You can also start following Joanne’s excellent blog posts at the Huffington Post.

Again, hearty congratulations are in order to Joanne and the fine crew at the Center for Justice & Democracy.  They’re one of the finest organizations fighting to protect the civil justice system from the millionaires & billionaires behind the tort “reform” movement.

A prevailing plaintiff should be entitled to recover the full cost of her medical care, even if her private insurer paid a smaller, negotiated amount to cover all of her hospital and doctor bills, California's 4th District Court of Appeal panel held Monday.

The decision overturns a San Diego County Superior Court ruling that cut plaintiff Rebecca Howell's jury award for medical expenses from $189,978 to $59,691 on the grounds that she should only recover the amount her insurer, PacifiCare, paid to settle her bills, not the initial amount her medical providers charged. Howell suffered severe neck injuries when the driver of a Hamilton Meats & Provisions truck made an illegal U-turn and struck her car.

Under California's collateral source rule, "Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift; and Hamilton, as the party liable for Howell's injuries, should not garner the benefits of Howell's providence," Justice Gilbert Nares wrote for the unanimous three-justice panel.

Source: Law.com - Injured Can Recover Full Price of Care Even if Insurer Paid Smaller Sum, Calif. Court Holds

What’s going to be very interesting to watch is how healthcare reform affects this decision (if at all).  Under California law, this decision doesn’t apply to anyone who has government-provided health insurance, but instead applies only to those with private insurance.  Would an individual who takes “the public option” (if it’s offered) not be able to recover the full cost of medical care?  Or if we’re all required to buy private insurance, will the rationale of this case go away? 

“It is the court’s opinion that the negligence of the corps, in this instance by failing to maintain the MR-GO properly, was not policy, but insouciance, myopia and shortsightedness,” wrote Judge Stanwood R. Duval Jr. of Federal District Court.

…

The plaintiffs’ lawyers argued that the Army Corps had not exercised “due care” in its maintenance of the channel, and that the maintenance that was done, like dredging, only made things worse. The corps’ actions, they said, brought salt water into the New Orleans area, killing off marshes; eroded the banks on which levees sat; and more than doubled the channel in width, giving water driven by hurricanes an unobstructed path to the city.

In his decision, Judge Duval largely agreed with this argument, at least as it pertained to St. Bernard and the Lower Ninth Ward. He was highly critical of the government, which had argued that the hurricane and its massive storm surge was simply more than the system had been designed to handle, and said the corps had manipulated facts.

Source: Ruling on Katrina Flooding Favors Homeowners - NYTimes.com

The “vanishing trial” is resulting in less courtroom experience for Hawaii’s litigators as parties on both sides of legal disputes seek faster and cheaper ways to resolve their differences.

Only 17 civil jury trials were completed in the state’s circuit courts in the fiscal year ending June 30, 2008, according to the most recent data available from the Hawaii Judiciary.

Source: Hawaii civil jury trials becoming a vanishing breed - Pacific Business News (Honolulu):

And only eight in the federal court system.

Now, does it really sound like Hawaii has a tort crisis going on?

LAKELAND | A federal judge Thursday cut $535,000 from the $800,000 GEICO was ordered to pay a former employee from Lakeland whom the company fired in August 2004 for refusing orders to dismiss an older worker.

U.S. District Court Judge James Moody ruled the insurance giant should pay $265,000 to Marija Stone, a former GEICO unit manager, her lawyer, Peter Helwig, said.

The ruling overturns a Sept. 21 federal jury's finding for Stone that included $100,000 in back pay, $200,000 in damages for emotional distress and $500,000 in punitive damages.

Moody ruled Stone was not entitled to punitive damages because the jury essentially doubled her award for back pay, Helwig said.

Source: Judge Slashes Lakeland Woman's GEICO Payout | theledger.com | The Ledger | Lakeland, FL

Judges can and do reduce jury verdicts they find to be excessive.  Because judges have and exercise this power, you can’t argue for tort reform solely because you believe juries are too likely to inflate damage awards.  Such an argument necessarily implicates judges for failing to reduce jury awards.  This power is known as remittitur. 

If you didn’t know, most judges don’t have the power to increase jury awards they find to be too low.