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Justinian Lane
Justinian Lane
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Defensive Medicine and Medical Malpractice "Reform"

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One of the ambitious goals that President Obama has set is to provide some sort of universal healthcare. Because of the sweeping changes any such system would bring, lobbyists from every interest group are intensely interested in shaping the system. The tort “reform” interest groups suggest correctly that one of the goals of universal healthcare should be to lower costs. But they suggest incorrectly that we need to limit medical malpractice lawsuits in order to curb “defensive medicine.”

What is defensive medicine? It’s generally described as when a physician orders a test or a procedure he or she thinks is unnecessary, but orders it to insulate him or herself from a possible medical malpractice lawsuit. Defensive medicine, as the argument goes, results in the costs being driven up for everyone because of questionable lawsuits filed by bad lawyers.

I use another phrase instead of defensive medicine. I say “insurance fraud.” Because when a doctor orders a test that he or she doesn’t feel is medically necessary, he has to justify that test to the insurer footing the bill. There’s no ICD 9 code for “physician worried about a malpractice lawsuit.” We’ve all heard anecdotes about how insurers sometimes refuse to pay for legitimate procedures that the patient truly needs. Whether those anecdotes are true or not, we all recognize that no rational insurer would pay for a procedure that is not medically necessary.

So when a doctor says he or she is practicing defensive medicine, it means one of two things: Either the doctor is committing insurance fraud by representing to the insurer that the procedure is medically necessary, or the procedure really is medically necessary and the doctor therefore isn’t practicing defensive medicine.

It has always humored me that doctors who claim they practice defensive medicine cast themselves as victims for being forced to run unnecessary tests. Let’s be realistic. It’s not as though the doctor is performing the tests for free. Instead, the doctor is billing for them and making a profit. Yet because lawyers are so hated, doctors can brazenly admit that they’re ripping off private and public insurers. And when I say public insurers, I mean Medicare and Medicaid. And when I say Medicare and Medicaid, I mean taxpayers like you and me. Now, I don’t know about you, but I don’t want my tax dollars being used to line the pockets of doctors who are charging for procedures they don’t think are necessary. Sorry, but if a doctor is worried about being sued, he or she should buy malpractice insurance¸ not commit insurance fraud.

I also wonder what the thousands of people every year who aren’t diagnosed with cancer until it’s too late think about the notion that doctors are too eager to run diagnostic tests. But that’s a blog post for another day.