Lincoln, Healthcare and the Antebellum Lawsuit Problem

One way to illustrate the inefficient cost imposed by defensive medicine is to compare patient safety to auto safety. Tens of thousands of motorists die each year in automobile accidents. However, racecar drivers crash their vehicles at 180 mph and routinely walk away unharmed. What if we mandated that the average driver outfit his or her car with the same crash frames, roll-bars, anti-rollover devices and fire control systems that race cars employ? Shouldn’t we also mandate a fire-proof racing suit, including gloves and boots? And what about including a racing helmet and HANS device to prevent head and neck injuries? Certainly these measures would lower the rate of death from vehicular crashes. But for the vast majority of drivers, these measures would provide no additional value or safety. It could be argued that the restrictive nature of the safety clothing and devices may even increase the risk of harm in certain situations. Drivers may even drive more aggressively, relying on the new “protections” instead of relying on more prudent, safe driving skills. What is certain is that these mandates would dramatically increase the cost to operate an automobile. Obviously the public would not support such a dramatic increase in cost for negligible increase in protection.

Is there a way to address defensive medicine and patient safety? One solution would be to offer safe harbor immunity for doctors who follow physician developed guidelines. Such a proposal encourages the use of cost effective guidelines. Additionally, allow qualified immunity for doctors who consciously deviate from such guidelines when it makes good clinical sense for the patient; eliminating potential objections of cookbook medicine. This dynamic gives physicians the latitude to do the right thing for their patients 100 percent of the time and not be penalized for doing so.

As we approach the year 2010, shouldn’t we move from a 19th century medico-legal system into an efficient 21st century system? Shouldn’t we support proposals that benefit patients and give doctors the peace of mind to treat patients the best way, not the defensive way? If we don’t, defensive medicine will continue unabated, patient safety will remain an issue, and costs will continue to escalate uncontrolled.

Jeffrey Segal, MD, JD, FACS, is a board-certified neurosurgeon, a fellow of the American College of Surgeons and a member of the American Association of Neurological Surgeons and the North American Spine Society. He is chief executive officer and founder of Medical Justice.