For decades, many physicians have been pushing for comprehensive tort reform on the national level. Malpractice claims in the U.S. are twice those of other developed countries such as England, Canada, and Germany. Payouts in a U.S. claim can easily reach 3 million dollars or more; in Germany most claims are around $30,000 or less.

A survey conducted by RAND in 2011 estimates that 99 percent of American physicians in high-risk specialties such as neurosurgery will face a lawsuit at least once in their career; in Europe, that number is only 20 percent. All the while, the costs of health care in the U.S. are skyrocketing, and the Affordable Care Act has been ineffective in reducing costs. While there are many causes of the inflated costs of care in the U.S., the ACA only addresses a few and leaves others unchecked.

Recently, an observational study of the relationship between physician spending and risk for malpractice claims was conducted in the U.S., and the results were published in the British Medical Journal in October 2015. In the study, hospital data for more than 24,000 physicians were sampled, and the investigators found that the higher the resource use, the lower the risk for malpractice claims: In a nutshell, doctors who ordered more tests were significantly less likely to be sued for malpractice. This finding was consistent across 6 of 7 different specialties evaluated and was particularly pronounced in obstetrics.

Defensive medicine, defined as medical decision making and care provided solely for the purpose of avoiding malpractice litigation, accounts for a significant proportion of health care costs in the U.S. today. Physicians, while striving to provide excellent care for their patients are faced with the harsh realities of our litigious society — many are always looking over their shoulders for the next “ambulance chaser” to appear.

In medical school, physicians are taught to think like Sherlock Holmes. When a patient presents with a set of symptoms and physical findings, we develop a differential diagnosis (a list of possible etiologies) and then we work to eliminate the possibilities through logic and objective data. The role of diagnostic testing is to help eliminate or confirm a particular diagnosis and allows physicians to zero in on a particular cause so that therapy may be initiated quickly. In many cases, a diagnosis can be confirmed simply by talking to and examining the patient — the medical history and physical exam — which is becoming a lost art.

When defensive medicine is practiced, the entire system is perturbed. Why would we order a test when it is unlikely to substantially change what we do.  Think “fork in the road.” If a test is ordered, the result should point us one direction or the other.

So, just how can we expect to lower health care costs if we are playing defense in the clinics and emergency rooms of America? How does defensive medicine impact patients?

Data such as those recently provided by the BMJ suggests that the practice of defensive medicine is on the rise. It is also very clear that the overutilization of testing is a major contributor to the high costs of health care in the U.S. As physicians we are taught that the best time to order a test is when we have an intermediate index of suspicion or pretest probability of the presence of a particular disease state or finding — employing Bayesian statistics. If our pretest possibility is high, then no testing is necessary, simply proceed with a therapeutic intervention. Conversely, if our pretest probability is determined to be quite low, then no testing should be performed — simply move on to another diagnosis.

Defensive medicine and over testing effectively negates our statistical advantage when making a diagnosis. Multiple unneeded tests are ordered and sometimes these tests have false positive findings that may result in further testing and even unnecessary procedures. These procedures often are associated with complications — all of which could be avoided by more responsible and judicious use of diagnostic tests. Moreover, patients must deal with the psychological impacts that having a false positive test result often produces.

We must all work to continue to push for tort reform. Only by removing the motivation for frivolous medical lawsuits will we be able to better contain costs and limit testing to those tests that are clinically indicated. While physicians must be held accountable for their decisions and their actions (as well as their clinical judgment and thought processes), we must insist that there are more reasonable caps placed on damages. Those attorneys who repeatedly introduce ridiculous and frivolous complaints must be held accountable for the costs and waste that they place on the system.

Until then, we will not be successful in curtailing costs and good physicians will continue to feel compelled to play defense in the clinic.

Kevin R. Campbell is a cardiac electrophysiologist who blogs at his self-titled site, Dr. Kevin R. Campbell, MD. He is the author of Women and Cardiovascular Disease.

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