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Caps on damages won't reduce defensive medicine - The Hill's Congress Blog

August 27, 2012, by Jeff Segal, M.D., CEO, Medical Justice

As we move into the fall and future political debate about how our nation should control spiraling healthcare costs, one item is certain: the Affordable Care Act will do little to reduce healthcare spending.

One reason, according to Gallup, is that one in four healthcare dollars in America is spent on defensive medicine. Defensive medicine occurs when doctors order more tests and procedures -- such as CT scans, blood work and biopsies -- than are medically necessary to keep from being sued.
This costs consumers as much as $650 billion annually.
The medical community has long supported tort reform as one solution to the healthcare spending crisis. One prong of tort reform includes a cap on malpractice damages for patients who sue for pain and suffering. The thinking goes that caps on pain and suffering will decrease healthcare costs.
While it can be debated whether caps lower malpractice premiums for doctors, it does little to change physicians' behavior when it comes to defensive medicine. In states highly praised for enacting comprehensive civil justice reform, doctors report little difference between the amounts of defensive medicine they practice compared to doctors elsewhere, according to a 2011 nationwide physicians' survey conducted by Jackson Healthcare.

For example:

•    In Texas, 79 percent of physicians said they practice defensive medicine compared to 81 percent in all states. This despite comprehensive legal reform adopted in 2003 that included much-acclaimed limits on non-economic damages, something known as "pain and suffering."
•    In California, 77 percent of doctors said they practice defensive medicine compared to 81 percent in all states. Yet more than 30 years ago, California lawmakers adopted the prototype for civil justice reform that included caps on non-economic damages or "pain and suffering." 

The recent Jackson survey of physicians found that only 27 percent of doctors nationwide said that traditional tort reform measures would cause doctors to decrease or discontinue the practice of defensive medicine.

Obviously doctors still believe they can be hauled into court with or without traditional tort reform measures. Doctors abhor any type of litigation. If the risk of litigation still exists, they believe it's safer to order more tests and procedures than are medically necessary.

The single best way we can quickly bring down the cost curve in healthcare is to take bolder steps to completely replace our broken medical liability system.

I propose we consider a system similar to one that has worked in Sweden for decades. There, doctors do not feel compelled to order unneeded tests and procedures. Further, patients who are harmed are fairly compensated.

We need a non-adversarial system that quickly and fairly processes claims. Patients for Fair Compensation is currently proposing such a plan to lawmakers in several states.

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