Tort reform advocates often cite concerns about the cost of "defensive medicine" as a rallying point to change our current civil justice system for medical malpractice cases.  They seek to limit a patient's right to recover for injuries negligently caused by a health care provider on the grounds that it will reduce the practice of defensive medicine and its associated cost.  Are these tort reform advocates right in their analysis?

The practice of "defensive medicine" is said to occur when a health care provider orders tests not to ensure the health of the patient, but as a safeguard to protect the health care provider from potential medical malpractice liability.  While there is much debate about how much defensive medicine actually occurs, there can be no debate that a significant percentage of medical malpractice cases actually involve diagnostic errors.  

Diagnostic errors involve diagnoses that are wrong, missed or delayed.  They can occur when a health care provider fails to order a particular test, when there is the miscommunication of information between consulting health care providers, or when a health care provider fails to consider all potential diagnoses.  Researchers have estimated that diagnostic errors account for as many as 40,000 - 80,000 hospital deaths per year, and even more bodily injuries per year.  In light of these estimates, can health care providers really be ordering too many unnecessary tests, and still be making so many diagnostic errors?  As a society, do we really want to limit a patient's recovery for injuries that were caused by the proven negligence of a health care provider?
Michael J. Shevlin
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Specializing in medical malpractice and serious personal injury cases since 1994.
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