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Is “Defensive Medicine” Really a Problem?

Iowa Congressman and attorney Bruce Braley recently sent a letter to the Center for American Progress contesting a report the Center had published. The report mentioned the “problem” of defensive medicine. Congressman Braley deftly rebutted the article in his letter, which is excerpted below. All of this came from an e-mail to me from the congressman.

The Center for American Progress (CAP) has released its “Senior Protection Plan,” which it bills as a plan to “improve the efficiency of the health care system, eliminate waste, and improve the quality of care.”

While I agree with CAP on many issues, I was shocked to read that CAP endorsed the myth of “defensive medicine,” and recommended a “safe harbor” proposal where providers would be granted immunity from medical negligence claims for adherence to a practice guideline.

Please read the letter below that I sent to the President and CEO of CAP, Neera Tanden. I simply can’t stand by when these types of misguided proposals are put on the table, and I wanted to share my response to CAP with you.

I’m counting on your help in the never-ending struggle to promote patient safety and protect patient rights.


Neera Tanden
President & CEO
Center for American Progress
1333 H Street, NW, 10th Floor
Washington, DC 20005

Dear Ms. Tanden,

I was shocked to read that the Center for American Progress is promoting a policy that will have an adverse impact on patient safety for seniors. Your recently-released “Seniors Protection Plan” includes a chapter entitled “Reduce the costs of defensive medicine,” which claims to find “savings” by addressing a problem that CAP has neither justified nor quantified. It concerns me that CAP begins with an assumption of a problem that has never been proven to exist, and also fails to consider the impact on patient outcomes when offering public policy recommendations.

Much has been written about the economic impact of so-called “defensive medicine,” yet very little credible empirical evidence exists to support this practice. Anecdotal surveys of physician practices would never survive any reputable peer review process, yet are often cited to justify outrageous numbers of added costs to healthcare delivery. Many commentators have noted that the financial motivation to increase revenues to clinical practices can be an equally compelling justification for ordering unnecessary tests that can actually result in harming patients and adding more costs to the system. [See: Overtreated: Why Too Much Medicine is Making Us Sicker and Poorer, Shannon Brownlee, (2007)]

Unfortunately, despite the many flaws with the arguments used to justify “the high cost of defensive medicine,” it appears that CAP has accepted this myth without questioning. How can “progressive” public policy analysts ignore this basic fact of healthcare reimbursement in the United States: Every time a health care provider submits a fee-for-service bill, they represent that the medical procedure or medical test was “medically necessary.” If the provider does not make that representation, they don’t get paid. If a test or procedure is defined as “medically necessary” by the provider so they can get paid, then it is clearly not “defensive medicine.” True “defensive medicine” is provided not because it’s medically necessary, but because it is used to protect the provider from liability. A provider who gets paid for doing something that they legally represent as “medically necessary” would be committing billing fraud if they received payment for a service that is actually medically unnecessary. Before CAP makes any assumptions about so-called “defensive medicine,” it owes it to the health care consumers of America to investigate this fundamental irreconcilable flaw in the myth of “defensive medicine.”

In light of this concern, I have a number of questions after reading your Plan:

  • What justification does CAP have to support the claim that “the risk of being sued may cause physicians to practice defensive medicine?” Does this justification include peer-reviewed studies?
  • Does CAP believe that in these instances, physicians are billing Medicare, Medicaid and private payers for medical services which are not actually medically necessary? Is CAP asserting that there is widespread billing fraud occurring?
  • How does CAP quantify what services are considered medically necessary, and what services are considered “defensive medicine?” What methodology was used to determine which, how many, and under what circumstances medical procedures served a legitimate purpose and which were considered “defensive?”

The CAP plan suggests that physicians should receive “safe harbor” if they 1) document adherence to evidence-based clinical practice guidelines; 2) use qualified health information technology systems; and 3) use clinical decision support systems that incorporate guidelines. None of these three points are new ideas, though I’m concerned that CAP would suggest attaching limitations on patients’ rights to them. The report does not explain why it should be necessary to limit patients’ rights in order to get physicians to follow proper guidelines.

  • How does CAP justify the claim that “defensive medicine” is a significant enough problem to restrict patients’ rights in order to address it, particularly when evidence of compliance with clinical practice guidelines is already admissible to definitively establish the standard of care? And if clinical practice guidelines are admissible to demonstrate a “safe harbor” compliance with the standard of care, why are physician groups so reluctant to accept the opposite reality: that failure to comply with clinical practice guidelines should be an “unsafe harbor” that leads to a finding of liability?
  • Has CAP analyzed the potential cost to patient safety of providing a “safe harbor?” Your report mentions, “Every year, about 200,000 severe medical injuries are caused by negligence.” This statement is grossly misleading given the findings of the Institute of Medicine in its landmark studies on Patient Safety. The IOM found as many as 98,000 deaths per year due to preventable medical errors, and hundreds of thousands of injuries caused by preventable medical errors. The IOM estimated that the cost of these preventable medical errors amounted to $17-28 billion each year, mostly in the form of additional medical care. This is far more than the Congressional Budget Office estimated the cost of “defensive medicine” using the same flawed assumptions about defensive medicine that are contained in your report.

I am all in favor of promoting improvements in patient safety by looking at incentives that give providers clear guidance on the standard of care and look at meaningful ways to reduce the cost of medical liability. I have real world experience proposing solutions to do just that, which I look forward to discussing with you. I urge you to revisit the basic underlying questions about what is called “defensive medicine” and prioritize patient safety first, and not to seek cost savings at the expense of patient outcomes based on erroneous assumptions.


Bruce Braley

Bob Kraft

I am a Dallas, Texas lawyer who has had the privilege of helping thousands of clients since 1971 in the areas of Personal Injury law and Social Security Disability.

About This Blog

The title of this blog reflects my attitude toward those government agencies and insurance companies that routinely mistreat injured or disabled people. As a Dallas, Texas lawyer, I've spent more than 45 years trying to help those poor folk, and I have been frustrated daily by the actions of the people on the other side of their claims. (Sorry if I offended you...)

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