Op-ed: In defense of defensive medicine

Published on

The San Diego Union-Tribune

Let’s lower auto insurance premiums by stopping lawsuits against drunk drivers, not by preventing drunk driving.

This is the logic by which President Bush proposes to lower the medical malpractice premiums that doctors pay. Bush and striking West Virginia doctors point to California, which has the nation’s most Draconian restrictions on injured patients as their model. Blaming the victim for doctors’ and insurers’ excesses in our state, however, has resulted only in greater recklessness.

Striking doctors in California 26 years ago declared a similar “crisis” to enact the severe legal restrictions on innocent malpractice victims, including a cap on the amount of damages they can receive. Former Gov. Jerry Brown, who signed the law, stated 17 years later that he would not recommend it for the nation because in the interlude he “witnessed yet another insurance crisis and found that insurance company avarice, not utilization of the legal system by injured consumers was responsible for excessive premiums.” “Saddest of all,” Brown continued, is “the arbitrary and cruel effect upon victims of malpractice.”

Injured patients in California are not merely denied full compensation, but in most cases cannot find attorneys to represent them. The situation stirred a crisis of conscience by well-known defense attorney Robert Baker, who defended malpractice suits for more than 20 years. “In my view, these malpractice reforms have aided insurance companies and physicians, but have, to a significant extent, been detrimental to person injured by medical negligence,” Baker told in Congress in 1994. “As a result of the caps on damages, most of the exceedingly competent plaintiff’s lawyers in California simply will not handle a malpractice case.”

Soon after, Baker’s major clients — the HMO Kaiser Permanente and malpractice insurer The Doctors’ Company — fired him. Such corporations have been the principle beneficiaries of the removal of legal accountability.

The lessened legal deterrence to medical malfeasance led California to become the pioneer of HMO medicine and its vices. One year after the restrictions on injured patients passed in 1975, California began licensing HMOs under a law authored by the same legislator behind limiting victims’ recourse. These HMOs, including Kaiser Permanente, drove the national trend. Four of the nation’s seven largest health plans are based in the state.

The first drive-through deliveries and outpatient mastectomies were instituted at California HMOs. Health plans in the state were also the first to pay doctors a lump sum for every patient, regardless of how sick or well. Such “capitation” payments have remained dominant in California while being shunned in the rest of the nation because they lead to the questionable ethics of paying doctors more for providing less medicine.

The “less is more” motto in California hospitals has led to such inadequate staffing and unsafe care that the state’s largest nurses union, whose nurses who can be sued for malpractice, also switched its position on the 1975 malpractice restrictions. The California Nurses Association supported an attempted legislative repeal in the late 1990s because of its principled belief that unaccountable corporations were endangering patients. The curtailing of caution can be witnessed by the average visitor to a Los Angeles County emergency room who faces a six-hour wait.

National proponents of limiting victims’ rights claim that doctors’ fear of lawsuits, so called defensive medicine, is driving them to perform unnecessary tests and procedures. In the managed care age, the financial incentives point the other way — to less caution, not more.

The Congressional Office of Technology Assessment foresaw this trend in July 1994, reporting that less than 8 percent of diagnostic procedures are likely to be caused by conscious concern about malpractice liability. “Defensive medicine is not always bad for patients,” the agency stated. “Malpractice reforms that remove incentives to practice defensively, without differentiating between appropriate and inappropriate defensive medicine, could also remove a deterrent to providing too little care at the very time that such mechanisms are needed.”

While California doctors and insurers claimed 26 years ago that defensive medicine was ruining them, California patients today can attest that a lack of caution is far more ruinous.


Court is executive director of the Santa Monica-based Foundation for Taxpayer and Consumer Rights and co-author of “Making A Killing: HMOs and The Threat To Your Health” (Common Courage Press). He can be reached via e-mail at [email protected].

Consumer Watchdog
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