Jeff Segal, MD, JD, FACS

A lot has been said and written about defensive medicine. Some pundits have stated, “If I’m a patient, I want you to practice defensive medicine.”

This is where the misunderstanding begins. There is universal agreement that doctors should do what is reasonable to keep patients safe. Period. Doctors agree. As do patients and attorneys.

But, defensive medicine is different. Defensive medicine has a different purpose. It includes tests, referrals, and procedures focused primarily on keeping doctors out of the courtroom.

Some will argue “Wait a minute. Shouldn’t a doctor do everything possible to prevent a problem?” Here’s where an analogy helps.

Tens of thousands die in auto accidents every year. This is a national tragedy. The easy solution is to ban driving and go back to horse and buggy days. Of course that would be ridiculous. Our GDP would revert to that of a Fourth World country.

How about mandating that every driver wear a helmet and flameproof clothing? It works for NASCAR and Indy drivers. They can ram a car into a wall at 180 MPH and often walk away with few or no serious injuries.

Now, mandate that the helmet and flameproof clothing must be replaced weekly and you have to pay for it.

That’s analogous to defensive medicine. Most of the time wearing the helmet and flameproof clothing will do nothing; just add cost. On rare occasion, it will indeed keep you safe. And, on occasion, the extra equipment could cause harm (eg: perhaps the helmet will keep you from hearing a oncoming ambulance). Is it worth adding an additional $5,000 per year, for example, to make driving safer? How about $10,000 per year? And what if some of the new tools create new harms?

Defensive medicine imposes a friction cost on our healthcare system. The simple solution, which has bipartisan support, is to provide safe harbor immunity for doctors who follow doctor-developed guidelines.

We would add to that. Allow qualified immunity for doctors who consciously deviate from such guidelines when it makes good clinical sense for the patient. Just document why the deviation occurred. This would give physicians the latitude to do the right thing for patients 100% of the time, and not be penalized for doing so. There would be no such thing as cookbook medicine.

If we could get these ideas over the finish line (couldn’t resist one more racecar analogy) we could greatly improve healthcare for everyone.