I almost hate to admit it, but I rarely think much about medical malpractice claims.  I have been involved in very few in my legal career, and we do nothing at my firm to encourage people to bring their medical malpractice claims to us for handling (although we still seem to regularly get telephone calls asking us to).  Nevertheless, I do have a strong interest in what some people call “tort reform”  (I call it “tort de-form”) and maintaining the rights of people to protect themselves by seeking reasonable compensation when they have been the victims of medical negligence.

This is why I was so intrigued by a new study published by Dr. David Katz, an Internal Medicine doctor at the University of Iowa, and several of his colleagues in the journal, Health Affairs.  Dr. Katz and his colleagues looked at the phenomenon of defensive medicine, and the justification advanced by doctors that defensive medicine is made necessary by a fear of medical malpractice claims.  Dr. Katz looked at doctors’ attitudes about defensive medicine across a range of jurisdictions – from those with strong laws limiting medical malpractice claims to those where medical malpractice laws were perceived to be good for patients and bad for doctors.

Dr. Katz and his colleagues found that doctors in virtually every jurisdiction said they were very worried about malpractice claims, even when objective measures of risk to doctors (such as strong malpractice laws, or statistics showing decreasing annual malpractice claims filed) were low.  Practicing doctors told the researchers that they were still practicing defensive medicine out of fear.  Dr. Katz’s team concluded that doctors simply have a “fear of suits that seems out of proportion to the actual risk of being sued.”

Three possible reasons for such a disproportionate attitude are offered.  First, it is proposed that medical societies and lobbyists who make their money advocating for doctors in Congress and the various State Houses generate a constant flow of propaganda to doctors designed to keep them in a constant state of fear, and to keep their checkbooks open.

Second, it is possible that doctors practice defensive medicine for personal gain in a system that rewards them on a per-procedure basis.

Last, it may just be human nature for doctors to overestimate and overstate the extremely slight risk that they actually face of ever facing a malpractice claim.  An example might be the well-recognized fear that many people have of flying in airplanes, when it is much, much more likely that a person will actually be killed in a car accident.  Some human beings cannot control a fear of severe, unpredictable, or uncontrollable events, no matter how irrational.  Generally, these folks are thought to be suffering with a psychological condition, but one wonders how many doctors would agree to be diagnosed as a result of their fear of malpractic claims.

It will be interesting to see if this viewpoint is introduced into the debate that will be had in the Florida Legislature in 2011, as Rick Scott and his lawsuit-hating associates consider additional tort reform.

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