The Impact of Malpractice on Medical Care Costs

SEPTEMBER 12, 2019
MD Magazine

Simon D. Murray, MD: Do you think, fairly, that malpractice is driving up the cost of medical care significantly?

Glen Bergenfield: Well, I’m not an expert in this, but I’d say no most of the time. I know I hear doctors talk about how you have to practice defensive medicine and how much they reset it and what a burden it is. I would say that, in general, the presence of tort law and malpractice and malpractice lawyers makes doctors a bit more careful. It makes lawyers more careful. It makes doctors a bit more careful. It makes the factory floor safer, and it makes construction safer. And when you go to Home Depot, the reason the lumber doesn’t fall on your head is because of tort law. They don’t want to get sued. And that’s 1 of the 2 purposes of tort law.

To that extent I guess it makes it a little more expensive, but I think those are really good results, and I don’t think it’s much. I think machines and technologies and Big Pharma are far bigger drivers of the increased expense of health care. Everyone agrees we pay too much in this country, but I think the medical malpractice system is a very tiny part of that.

Simon D. Murray, MD: You know I agree with you. I know for a fact that it’s been estimated to be about 5%.

Glen Bergenfield: You know there are cameras rolling now. You just said that as a doctor.

Simon D. Murray, MD: I know.

Glen Bergenfield: All right, OK, I’m just warning you.

Simon D. Murray, MD: About $5 billion, I think, is paid out for claims.

Glen Bergenfield: That’s what I’ve heard.

Simon D. Murray, MD: But the vast majority is said to be paid out for defensive medicine.
Now, the whole thing of defensive medicine is really kind of nebulous too. Because what’s defensive medicine? You know, ordering extra tests. And who benefits from that? I mean, often we do.

Glen Bergenfield: The doctors.

Simon D. Murray, MD: Self-benefit. I know that’s not a popular thing to say.

Glen Bergenfield: No.

Simon D. Murray, MD: I see a lot of unnecessary care, and maybe it’s because we’re being extra careful, maybe we’re worried about malpractice. But I see a lot of unnecessary care that could reduce the cost of health care significantly.

Glen Bergenfield: Do you think lawyers are responsible for doctors doing unnecessary parts?

Simon D. Murray, MD: I think they’re blamed for it.

Glen Bergenfield: You do what?

Simon D. Murray, MD: They take the blame for it.

Glen Bergenfield: They take the blame for it. Yeah, but do you think that’s fair? Do you think that’s accurate?

Simon D. Murray, MD: No, not exactly, not completely.

Glen Bergenfield: I don’t think most doctors, when they’re with a patient, are thinking: “You know, I could get sued if I don’t do this test and that test.” I just don’t see that. I mean, the standards aren’t set that way.

Simon D. Murray, MD: I certainly don’t practice that way. I don’t see it as this sort of Damocles sword hanging over my head. But, you know, you think about it quite a bit.

Glen Bergenfield: Sure.

Simon D. Murray, MD: It doesn’t drive what I do.

Glen Bergenfield: Right. And so does everyone, and that’s the purpose of tort law. That’s not a bad thing. It might have a bad result if someone’s right, that too much wasteful testing is being done. I don’t think so, but I don’t know. But the purpose of tort law is to get people to be more careful. Not defensive, that’s a loaded word, but to do a better job—to be more careful, to stay up a little later, and to worry a little more. That’s the point.

Simon D. Murray, MD: Yeah. I think some doctors use defensive medicine as an excuse either to help their own insecurities about things. They’re insecure; they want to know—they always want to know. I know a lot of oncologists, and they do a lot of tests on people because they’re worried about them. Diseases change quickly, and they do a lot of tests. I don’t think it’s all defensive medicine. I think it’s really because they worry about the patients.

Glen Bergenfield: Right, that’s my sense of the doctors I deal with. Certainly with you.

Simon D. Murray, MD: Yes.

Glen Bergenfield: It’s that it’s a concern for the patient, and it may be that the test is going to give you useful information only a small percentage of the time. But it might be really important to know it nonetheless. That’s my sense of how most doctors do it.

Simon D. Murray, MD: Yeah. In that regard—this is a little off topic—sometimes doing a test that’s medically unnecessary will cure the disease. I’ll give you an example: A person who’s convinced there’s a brain tumor, for some reason. Maybe the father had it, maybe they have headaches and migraine or something. Doing the MRI [magnetic resonance imaging], which I know they don’t need, will cure it once they find out it’s normal. That’s the end of story [and] maybe the cheapest way to deal with it.

Glen Bergenfield: Right.

Simon D. Murray, MD: Even though from the straight point of view of medicine, our textbooks say, “Don’t do it. It’s an unnecessary test.”

Glen Bergenfield: Right. Well, I’m listening to that as a potential patient with a potential brain tumor. If you could do a test on me and say, “You can calm down now,” that would be a test that I wouldn’t consider to be defensive or unjustified.

Simon D. Murray, MD: Yeah. Well, our guidelines may say it’s unjustified, but I still would do it in that circumstance.

Glen Bergenfield: For me, right? You’d do that for me.

Transcript edited for clarity.

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