Burton on Health Care and "Defensive Medicine"

In the current debate about health care reform, we hear a renewed call by medical and insurance lobbyists, politicians, and media pundits for “malpractice reform.” These ardent reformers do not seek to reduce medical malpractice or improve patient safety. Instead they seek to block access to the courts for the families of patients who have been injured or killed by medical errors.

A woman in Charlotte recently responded to this misguided campaign. In an op-ed article published in the Charlotte Observer, Laurie Sanders explained why she has a special interest in the subject:

Medical negligence isn’t a topic I gave much thought to, until my six-year-old son went to the hospital sick for the first time in his life, and died of oxygen deprivation. Christopher was my only son. His Daddy, my husband, had died of cancer a few years earlier.

In experiencing the death of my husband and son, I have seen the best medical professionals and the worst. I have seen the most caring, and the least.
I buried my husband knowing that medical professionals did everything they could. I buried my son knowing that medical professionals failed him at the most basic level.

Lobbyists for “malpractice reform” claim that lawsuits raise health care costs by inducing doctors to practice “defensive medicine.” Laurie responded:

We are told that doctors will stop ordering unnecessary tests and procedures if they are freed of the threat of malpractice lawsuits. Both the Government Accounting Office and the Congressional Budget Office have issued reports questioning the pervasiveness of “defensive medicine” and concluding that meddling with the legal system will have a minimal effect on health care costs. When doctors and hospitals have an economic incentive to order additional tests and procedures, we should be skeptical of their claims that they were motivated by the fear of being sued.
One of the lessons of Christopher’s unnecessary death -- and my necessary lawsuit -- is not that health care providers need to engage in cost-inflating “defensive medicine.” Instead, it is that doctors and nurses must pay attention, communicate with their colleagues, and adhere to well recognized standards of practice.

In a recent New Yorker article about health care costs, Dr. Atul Gawande confirmed Laurie’s insight about “defensive medicine.” Per capita costs for Medicare patients vary dramatically across the country. To better understand those variations, Dr. Gawande studied McAllen, Texas, a community whose Medicare costs are at the highest end of the spectrum.

Dr. Gawande found that demographic differences (such as race, ethnicity, poverty and age) could not explain why costs are so high in McAllen: per capita Medicare costs in El Paso, a city with virtually the same demographics as McAllen, are much lower. Nor could the high medical costs in McAllen be blamed on “defensive medicine”: doctors in El Paso and McAllen are governed by the same tort laws, and all benefit from the radical version of “malpractice reform” that Texas adopted in the 1990’s.

After interviewing doctors and hospital administrators in McAllen, and ruling out other possible explanations, Dr. Gawande concluded that the intense entrepreneurial spirit that pervades the McAllen medical community is primarily responsible for the high cost of care. In short, the doctors who are most highly motivated by profit are the ones who order the most expensive tests and procedures.

As they consider calls for “malpractice reform,” legislators need to remember McAllen, Laurie and Christopher. Restricting patients’ access to the courts will diminish patient safety, and do nothing to lower health care costs.

(Burton's post has been cross-posted on the NCAJ's blog.)