Nothing polarizes the heath care debate more than defensive medicine. A recent study from Health Affairs will only add more fuel to the fire.

Here’s what I wrote a couple of years ago in USA Today: “When you consider that rampant testing is a major driver of escalating health care dollars, addressing defensive medicine should be a primary goal of cost containment.”

Is that still true?

Well, yes and no.

MedPage Today summarizes the findings:

Costs associated with medical malpractice added about $55.6 billion to the nation’s total health care costs in 2008 — roughly 2.4% of a more than $2.3-trillion tab — and most of that money went to pay for tests, procedures, and treatments associated with defensive medicine, according to an analysis by Harvard researchers …

… A second paper by J. William Thomas, PhD, of the Cutler Institute for Health and Social Policy at the University of Southern Maine, in Portland, and colleagues, analyzed the costs of defensive medicine across 35 medical specialties and concluded that “defensive medicine practices exist and are widespread, but their impact on medical costs is small.”

In other words, both the doctors and lawyers are right. Defensive medicine is rampant, per the doctors, but its cumulative cost effect is much smaller than most physicians think, per the lawyers.  (Although I’d argue that adding $55.6 billion to the nation’s annual health care costs should not be so easily dismissed.)

So, what’s next?

Politically, malpractice caps are dead — tort reformers should abandon that option. Furthermore, arguing that tort reform will save significant sums of money is growing less viable.

It’s more important to re-frame the malpractice debate to focus on patients. That’s where the malpractice reform crowd will have more solid evidence to stand on.

Again, in a previous USA Today op-ed:

… nearly one in six cases involving patients injured from medical errors received no payment. For patients who did receive compensation, they waited an average of five years before their case was decided, with one-third of claims requiring six years or more to resolve. These are long waits for patients and their families, who are forced to endure the uncertainty of whether they will be compensated or not.

And with 54 cents of every dollar injured patients receive used to pay legal and administrative fees, the overhead costs clearly do not justify this level of inefficiency.

Those who want to reform the malpractice system — namely, the majority of physicians — would be much more persuasive if they focused on how the current system is wholly inadequate in treating injured patients.  That’s something that conservative-leaning tort reformers and progressive heath reformers can agree on.

And it’s the only way that plausible solutions, like health courts or no-fault malpractice, can move forward.

Kevin Pho is an internal medicine physician and on the Board of Contributors at USA Today.  He is founder and editor of KevinMD.com, also on Facebook, Twitter, Google+, and LinkedIn.