Arguments supporting restrictions on the right to a jury trial (mischaracterized as tort or lawsuit reform) are based primarily on myths and unsubstantiated anecdotes. One of these myths is that doctors practice defensive medicine more often in states without caps on damages; therefore, caps on damages will reduce defensive medicine. A new study busts this myth.
According to a study by the Center for Studying Health System Change in the August Health Affairs, physicians’ perception of their risk of malpractice liability predicts their practice of defensive medicine. Below is the abstract of the newly released study:
Health Aff (Millwood). 2013 Aug;32(8):1383-91. doi: 10.1377/hlthaff.2013.0233.
Despite widespread agreement that physicians who practice defensive medicine drive up health care costs, the extent to which defensive medicine increases costs is unclear. The differences in findings to date stem in part from the use of two distinct approaches for assessing physicians’ perceived malpractice risk. In this study we used an alternative strategy: We linked physicians’ responses regarding their levels of malpractice concern as reported in the 2008 Health Tracking Physician Survey to Medicare Parts A and B claims for the patients they treated during the study period, 2007-09. We found that physicians who reported a high level of malpractice concern were most likely to engage in practices that would be considered defensive when diagnosing patients who visited their offices with new complaints of chest pain, headache, or lower back pain. No consistent relationship was seen, however, when state-level indicators of malpractice risk replaced self-rated concern. Reducing defensive medicine may require approaches focused on physicians’ perceptions of legal risk and the underlying factors driving those perceptions.
The findings of this study suggest that malpractice reforms touted for years as reducing defensive medicine, such as caps on damages, do not change how physicians practice. On the other hand, one could certainly argue that there is actually no such thing as defensive medicine. Either a test or procedure is necessary or it is insurance fraud to bill for it.
Under the Arkansas Constitution, the right to a jury trial is protected by language which says, “The right to a jury trial shall remain inviolate…”. Inviolate means untouched and undisturbed. The right to a jury trial should remain untouched and undisturbed and not subject to restrictions based on myths.