Health care in the United States costs too much, and it doesn’t look like that’s going to change. Recent health care reform legislation doesn’t take any meaningful steps towards reducing or controlling costs. In fact, it explicitly forbids states from trying to curtail the costs of malpractice litigation in any way that would reduce lawyers’ fees.

How does a fear of lawsuits increase costs? The most direct way is “defensive medicine”– the ordering of unneeded labs and tests for the sole purpose of preventing a lawsuit, or to provide defensive ammunition in case of a lawsuit. The best example I can think of is the startling and bizarre increase in the rate of Caesarian sections, which has now passed a third of all births in several states.

Despite the fact that there are real and important health disadvantages to the baby and mother, a C-section is perceived as the best way to prevent lawsuits involving babies who later develop neurologic symptoms of brain damage from diseases like cerebral palsy. Basically, if a baby is found to have neurologic damage, everyone knows that a jury will probably award a huge sum to the family– despite the fact that it’s been demonstrated for years that this kind of injury almost always occurs well before birth, and nothing the obstetrician or midwife did could have prevented it. The science doesn’t matter, especially when a sad, handicapped child can take the stand, and a slimeball lawyer like John Edwards can smear the doctor, hospital, and everyone else involved (yes, he did claim in open court to have the spirit of an injured child speak through him to convince the jury to return a favorable verdict for his client.)

Of course there is far more to defensive medicine than obstetric procedures. Many CT scans are entirely unnecessary, and in fact expose patients to radiation that may contribute to one in fifty cancers. But woe to the emergency room doc who didn’t immediately scan the head of a trauma patient. Unnecessary blood tests, biopsies, and specialist referrals are all done to “spread the blame” and make lawsuits defensible.

Defensive medicine costs you more than money. When was the last time you asked for telephone advice? Doctors are very, very leery of giving meaningful advice over the phone, because we can’t take the risk of this kind of conversation in front of a jury:

Attorney: You mean you refilled the medicine without performing another physical exam? If you had seen the patient in person, you would have found the cancer earlier!

Doctor: The medicine had nothing to do with cancer! I was just trying to help the patient! It’s expensive to make them come in every month for a refill!

Anytime we tell anyone anything, any kind of advice, doctors must consider the risk of a lawsuit. Everything we say and do is supposed to be documented, too — to defend ourselves. Every wonder why the doc spends so much time scribbling in the chart, instead of talking to you? It’s not because we like writing. It’s because every single day we’re reminded that the chart is our only defense.

Do you think this hasn’t increased health care costs? Do you think it hasn’t affected the relationships doctors have with patients?

The current medical malpractice system is a disgrace. It doesn’t prevent errors (in fact, it encourages hospitals and doctors to hide mistakes), it doesn’t proportionally reprimand or punish truly bad doctors, and it doesn’t fairly compensate most victims of true medical mistakes. The only people who like this system are the trial lawyers, who contribute tremendously to Democratic Party campaigns– more than any other industry or trade group.

Howard Dean even admitted, in a refreshingly candid statement, that there was no way his party would even consider taking on the trial lawyers by trying to include tort reform in healthcare legislation. It’s very clear that the current medical malpractice system is increasing costs for all of us, and nothing is going to slow down this disaster any time soon.

Roy Benaroch is a pediatrician who blogs at The Pediatric Insider. He is also the author of Solving Health and Behavioral Problems from Birth through Preschool: A Parent’s Guide and A Guide to Getting the Best Health Care for Your Child.