Should severe birth injuries be pulled out of the court system, and can defensive medicine be good?

Two recent op-eds were recently published in The New York Times concerning medical malpractice.

With health care costs spiraling out of control, there is some grudging acceptance within both the Democratic party and mainstream media that something needs to be done to fix the American malpractice system.

The stance that the American Medical Association is taking, namely, exempting doctors from malpractice if they adhere to evidence-based clinical guidelines, is a good one. Another idea would be removing certain injuries from the court system. Severe birth injuries are one example, as they can still happen despite following the standard of care. Funneling these cases into a no-fault system would help patients receive quicker compensation.

Of course, I think that the entire medical malpractice system would be better served with a no-fault system, but birth injuries would be a good place to start.

A companion op-ed is written from the lawyer’s point of view. On the prospect of defensive medicine, attorney Tom Baker writes:

Critics point to defensive medicine as the hidden burden that liability imposes on health care. Yet research shows that while the fear of liability changes doctors’ behavior, that isn’t necessarily a burden. Some defensive medicine is, like defensive driving, good practice. Too often, we can’t distinguish between treatments that are necessary and those that are wasteful. Better research on what works and what doesn’t — evidence-based medicine — will help. And it will address the more general challenge of avoiding costly but unnecessary care.

I’ve written previously that defensive medicine, which leads to over-testing and over-treatment stemming from the fear of liability, does not help patients. In fact, more tests increase the risk of complications, and can necessitate more invasive studies that can be to the detriment of patients. The Dartmouth Atlas studies have said as much.

But I agree with Mr. Baker that we do need more evidence-based medicine, which comparative effectiveness studies can help with. But is he willing to go as far as to endorse what the AMA is proposing, and grant doctors immunity if they adhere to the evidence he espouses?

I wouldn’t hold my breath.

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