Defensive Medicine: A Case and Review of Its Status and Possible Solutions

Malpractice liability systems exist, in part, to provide compensation for medical malpractice, corrective justice for those injured by it, and to incentivize quality care by punishing substandard care. Defensive medicine is loosely defined as practice based primarily on the fear of litigation rather than on expected patient outcomes. It is largely motivated by a physician’s belief that the malpractice system is unfair, slow, and ineffective; these perceptions make malpractice concerns one of the largest physician stressors. A physician’s perception of malpractice rarely correlates with the stringency of their state’s tort system, overestimates their own risk, and overestimates the cost of defensive practices. While estimates are difficult to make, defensive medicine likely only accounts for 2.8% of total healthcare expenses. The phrase “tort reform” has been frequently used to suggest fixes to the malpractice system and to defensive practices. Safe harbors, clinical practice guidelines, comparative fault reform, reducing plaintiff attorney fees, and apology laws have each been evaluated as potential remedies to defensive practice, although most are unproven and all must be deployed in a state-by-state approach.