The Defensive Effect of Medical Practice Policies in Malpractice Litigation

Abstract

According to the prevailing discourse in health policy circles, America's medical system is in the grips of two crises: one of health care spending and one of medical malpractice liability. Although this crisis mentality may result in part from uncritical acceptance of interest group dogma, to the extent that a crisis is in fact widely perceived, it has the quality of a selffulfilling prophesy: if doctors believe, rightly or wrongly, that malpractice suits are out of control, they will practice more defensively, which will further fuel rampant health care spending.' Moreover, malpractice law may stand as a principal force in opposition to cost containment reforms: if the inflated practice norms of the past are enshrined in malpractice law precedents, then any physician who responds to cost containment incentives by treating patients less aggressively may be exposing herself to certain malpractice liability.2