Fear of Malpractice Litigation

Joe Cantlupe, for HealthLeaders Media , September 9, 2010

I wasn't named in the lawsuit, nor was I a defendant; the newspaper was. But the continued presence of the lawsuit, the shadow of the plaintiff's accusation, was an endless stream of constant worry and stress for me. I'll never forget when I asked our lawyer if he thought I would have to testify. "Oh sure," he said cheerfully, "We can't have Hamlet without Hamlet."  Thanks, Mr. Attorney, I said.

As a young reporter, in the end, I learned many lessons, including the fact that what you do, even if you feel you are so right, in your motivations and outcome, can certainly be tested in a court of law, with the end result never certain. For at least a month, even after the case was resolved successfully, I felt the most significant journalism I truly wanted to write about was about parades, or Easter egg hunts. Basically, I didn't feel like doing my job; that was my internal defense against potential litigation.

For physicians, defensive medicine is often their barrier against litigation, but it probably isn't the best idea. Although analysts disagree about the scope and cost of defensive medicine, physicians "consistently report they often engage in defensive practices out of fear of becoming the subject of a malpractice lawsuit," according to Reschovsky and his colleagues.

In another Health Affairs report, by Harvard law and public health professor Michelle Mello, associate professor of surgery Atul Gawande, MD and others, it was estimated that defensive medicine was extremely costly, in terms of overall healthcare costs, making up $45.6 billion per year.

Ironically, the fear of litigation may compromise physicians' ability to communicate effectively with patients, particularly in disclosing medical errors. Translation: it affects physicians doing their jobs.

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