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When Does Defensive Medicine Become Malpractice?

Medicine MalpracticeIn today’s United States, many argue that the environment has become hostile to the traditional practice of medicine. Stories are told of high malpractice insurance costs and verdicts out of proportion to what they allegedly should be. These events have given rise to the trend of defensive medicine, which seeks to prevent costly lawsuits. However, there is a point where covering one’s own back can be damaging to the welfare of a patient.

What is Defensive Medicine?

Due to increasing numbers of lawsuits in recent years, many physicians have begun to engage in defensive medicine, which is defined as performing or recommending diagnostic tests or procedures that may not be the optimal health care decision, but which can rule out more possibilities, so that the physician may more easily avoid a medical malpractice claim down the road. This can include ordering extra tests, performing exploratory procedures, or recommending medications that may not be the first choice for a patient’s suspected illness.

There are two major categories of procedures that can be classified as defensive medicine. One is referred to as assurance behavior - performing tests to assure the patient that every avenue is being explored and that even those conditions which are unlikely to be the cause of the patient’s malady are being ruled out. The other is referred to as avoidance behavior, where a physician or other medical professional refuses to perform procedures or tests that carry a high risk of harm to the patient, even if that procedure might be indicated in standard medical care. It is the latter category that proves the most fertile ground for malpractice claims.

Breaching the Standard of Care

Regardless of which category of defensive medicine you may have experienced, it can be shown that such practices may constitute a breach of the standard of care. The standard of care that must be observed by California’s medical professionals is fairly straightforward: any physician that does not exhibit a level of “skill, knowledge and care” that is comparable to that of a “reasonably careful physician” of similar age, experience and ability is held to be negligent.

A “reasonably careful physician” generally does not act out of fear of litigation; they are held to act in the best interests of the patient in the significant majority of situations. If, for example, a physician observes that a patient’s condition may improve due to surgery, and the patient gives informed consent, that surgery should then be performed, regardless of potential liability, especially if the alternative may be fatal. If the patient in the example suffers harm due to the doctor’s failure to act, it is eminently plausible that such a choice could actually open the doctor up to higher liability, rather than lower.

Consult a Medical Malpractice Attorney

Defensive medicine is meant to save money in the long run, even though some statistics do not bear that out - a recent study from the Center for Progressive Reform shows that health care costs continue to rise, as much as 6.5 percent in some years. However, it can also lead to significant harm to patients if not assessed appropriately. Contact a passionate San Jose medical malpractice attorney at the firm of Corsiglia, McMahon & Allard, L.L.P. today to discuss your case if you have been injured by a doctor’s negligence. We serve San Jose, the Bay Area, and the counties of San Benito, Santa Clara, San Mateo, Alameda and Monterey.

Client Reviews
My experience with Attorney Brad Corsiglia during my recent medical malpractice case was nothing short of amazing given the very stressful circumstances. I was fortunate to find Brad highly recommended from a mutual contact and from the very beginning of the process, Brad was truly engaged and knowledgeable in understanding my case and providing input on what avenues were available to me. Michelle M.