The Role of Informed Consent in Defensive Medicine

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This article examines the problem of "defensive medicine." Those who advocate tort reform often point to the problem of defensive medicine as a justification to limit the right of redress of victims of medical malpractice. The argument is that the "pervasiveness of malpractice litigation" causes health care providers to "order tests or procedures in excess of their actual need to protect themselves from the risk of lawsuits." Tara F. Bishop, MD, Alex D. Federman, MD, MPH & Salomeh Keyhani, MD, MPH, Physicians’ Views on Defensive Medicine: A National Survey, 170 Arch Intern. Med. 1081 (2010).

There are many reasons to question the scope of the problem of defensive medicine. First, initial steps to quantify it were based solely on surveys of physicians. An examination of the health care landscape reveals that there are many forces that motivate doctors to over-order diagnostic tests and procedures. Second, although some states have now enacted tort reform, data from studies suggest that limiting medical malpractice victims' rights of redress do not significantly impact physician behavior. This is not very surprising given the absence of progress in the patient safety movement.

In addition to the problems posed by prescribing tort reform to cure the problem of defensive medicine evident in the medical literature, from a legal perspective it is a mistake to think that granting doctors immunity for consequential decisions will result in less diagnostic tests and procedures because the duty of informed consent now requires most consequential medical decisions to be made by doctors in consultation with their patients. It may very well be that bringing patients into the process has resulted in more decisions that err on the side of caution. Courts decided long ago that patients had this prerogative. It does not seem fair to shift the burden of the costs of informed consent to a smaller group of people simply because they have been harmed by medical malpractice. Fairness aside, enacting tort reform to combat defensive medicine is a public policy decision based on a loosely defined and overstated problem and studies already show that it will not impact physician behavior. Of course, it will not impact the medical decisions of patients either.

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