Tort DeformTort Reform

Tort Deform Myth Busted

By August 27, 20138 Comments

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.


  • James Cook says:

    Limiting the recovery of truly injured patients will not change physician behavior. Physicians do not want to be sued–period.

  • Thomas Greer says:

    Good post. Other studies have been done to show that so-called “defensive medicine” is often caused by financial motivation. For instance, doctors with their own MRI machines tend to order many more MRI scans than doctors without a machine. Keep up the good work.

  • Jesse Reiter says:

    Great piece! Would you support restrictions on the right to a jury trial if the research had clearly shown that physicians do, in fact, practice more defensive medicine in states with no caps on damages?

  • Drew says:

    Thank you for sharing this insight.

    It should come as no surprise that the claim of defensive medicine is untrue. Clearly, if doctors order unnecessary tests, they are committing insurance fraud. I think we all can only hope that the reason negative resulting tests are ordered is because doctors simply don’t want on their conscience that they missed something that could have saved a life.
    I prefer to think doctors all want what is best for their patients.

  • paul scoptur says:

    The real studies show that defensive medicine costs contribute to less than 1% of health care costs. Caps have not proven to be effective in holding down the cost of health care. Here in wisconsin we have caps, yet have one of the highest health care costs in the nation? Why? lack of real competition, as there are only a few large health care systems that have carved up the state geographically.

  • Richard Gurfein says:

    Thanks for posting this important information. Defensive medicine is a misnomer. Either a doctor properly investigates a patients complaints to arrive at a diagnosis or they don’t. Ordering an unnecessary test is insurance fraud and won’t help the patient. Not ordering a necessary test is a departure from accepted medical practice and is malpractice. There is no middle ground and it’s high time the public understood that!

  • Armand Leone says:

    I think a major reason for excessive ordering of tests is not for defensive medicine purposes, but simply because doctors now rely on testing in lieu of clinical diagnosis. Due to time restrictions, the plethora of medical tests available and the desire for patients to “get a scan”, it is faster to order a battery of tests and imaging studies to “see what they show”. Instead of using tests to confirm a clinical suspicion, the tests are used in place of physical diagnosis. It is more convenient to put the cost blame on malpractice litigation than to look at the underlying reasons for ever increasing medical costs.

  • Deborah Nelson says:

    I find it interesting that the general public complains about defensive medicine and that “it makes doctors order more tests.” Is ordering more tests always a problem? Should they order fewer tests? Sadly, people often don’t think analytically about this issue to see why doctors (and their insurers) seek special protection to shield them from the harmful results of malpractice – and why their insurers want to spread propaganda about this. Too often, communities get the medical care that they are willing to allow, by virtue of their verdicts against doctors who have been sued.