New York Healthcare Law Blog

Overutilization is the ordering of tests or performing procedures when medically a physician would be justified simply trusting his or her own clinical judgment. Overutilization is the cornerstone of the initiation of the political reform in the area of healthcare. Defensive medicine is defined by the US Congress Office of Technology Assessment as: "When doctors order tests, procedures, or visits, or avoid high-risk patients or procedures primarily (but not necessarily solely) to reduce their exposure to malpractice liability."

It is predicted that the heavy scrutiny that physicians currently face from the government and third parties will only intensify within the framework of new legislation. Provisions of reform bills in Congress propose to rank doctors against peers in their specialty with financial punishment expecting those whose use of "resources" such as diagnostic test is deemed too high.

The legal system, however, is set up still to encourage defensive medicine. Doctors are well aware that they have to be judicious in ordering tests but the standard of care is driven by the fear of malpractice suit. It is not difficult to see how defensive medicine can drive up healthcare costs. The question is whether physicians concientious of the need to lower healthcare costs can do so without putting themselves at risk?

According to claims data from 1985 to 2007 compiled by the Physician Insureres Association of America, more than 80% of medical malpractice cases are closed without payment and even when there is an actual trial, the ruling is in favor of the physician-defendant 89% of the time. Still, the stress of the lawsuit and damage to reputation is an experience that most doctors want to avoid at all costs. Most malpractice attorneys agree that the only way to reduce defensive medicine is to control physicians' fear of being sued and the basic path to such result has been continuously emphasized by many malpractice insurers: documentation and better communication with patients.