One of the reasons for medical "tort reform" that the medical industry and insurance lobby never tires of repeating is that medical costs are driven up by doctors practicing "defensive medicine" out of fear of malpractice lawsuits.  This claim has surface plausibility, but is in fact a myth.  Its constant repetition by the medical lobby and politicians who are either ignorant of the facts or pander to this special interest group require it be debunked.

There are so many fallacies in this myth that, in a short article such as this, it is impossible to list them all.  To start with, though, one begins by having to swallow whole the idea that contrary to good medical judgment, medical ethics,  and basic rules of Medicare (to use one example) which excludes coverage for tests and procedures that are not medically necessary, doctors will prescribe excessive or unnecessary medications, tests or procedures in the hope that  doing so will save them from legal liability.

"Defensive medicine" as a driver of higher medical costs has no known scholarly or empirical support.  What "evidence" there is arises inevitably from surveys of doctors or other interested parties in the health care industry who, when prompted, respond that they "fear" medical malpractice lawsuits and "imagine" they will avoid liability by violating their medical ethics and the law.  Health Insurance Watch, February 2011.

It is interesting to contrast the claims of "defensive medicine" by anonymous surveys of doctors with the American Medical Association's own Code of Medical Ethics:  "The practice of medicine, and its embodiment in the clinical encounter between a patient and a physician, is fundamentally a moral activity that arises from the imperative to care for patients and to alleviate suffering ... The relationship between patient and physician is based on trust and gives rise to physicians' ethical obligations to place patients' welfare above their own self-interest and above obligations to other groups, and to advocate for their patients' welfare.  (Opinion 10.015 - The Patient Physician Relationship) 

Whatever costs there may be that are incurred for patients, the insurance companies or the government by unethical doctors practicing illegal and immoral "defensive" medicine cannot compare to the medical and social costs of medical negligence. The remedy of legal access to the courts by victims of medical malpractice is perhaps the only real check in our current medical system against the consequences of medical error. 

Perhaps legislators and Congress should consider whether "caps" or other "reforms" of medical malpractice that limit or eliminate any recourse for negligent medical care may lead to increases in acts of malpractice and damage to patients and far greater cost than the mythical cost of defensive medicine.