How ‘Defensive Medicine’ Compromises Doctor-Patient Relationships & Care


By Dennis Hursh

The risk of malpractice lawsuits is wreaking havoc on America’s healthcare system, giving rise to physicians practicing “defensive medicine,” according to researchers at USC, Harvard University and Stanford University.

“Defensive medicine” is a phenomenon where doctors spend extra money and resources conducting tests and procedures for patients in hopes of reducing the likelihood they will be sued for malpractice. And it may work, because the research indicates doctors who use the approach are indeed less likely to be sued, a USC press release says.
“ ‘Well, duh’ is the likely reaction from most physicians to this study,” says Dennis Hursh, an attorney who provides legal services to physicians and is the author of “The Final Hurdle: A Physician’s Guide to Negotiating a Fair Employment Agreement,” (

“This study validates what I’ve been hearing from my clients for almost 30 years – defensive medicine is absolutely required to protect physicians from an out-of-control judicial system.”
Hursh says the looming threat of lawsuits can compromise doctor-patient relationships. Here’s how:

• Legal cover and medical benefit are often at odds. Physicians worried about lawsuits feel forced to order tests and procedures they know will be of marginal value. Gratuitous tests are expensive and may have potential risks, such as radiation if imaging is involved. And such tests can cause undue anxiety for patients. Many physicians would gladly forgo testing and procedures they feel are of little to no benefit if they didn’t have the threat of a lawsuit hanging over them for every clinical decision they make.
• Legal threats prove costly to doctors and may compromise performance. Doctors are ambitious people who might choose to move to a different practice for better pay and benefits. But when they change employers they have to worry about something called “tail” insurance coverage. That’s a policy that covers the physician for legal claims that arise after they leave their current position. Depending on the insurance policy the current employer carries, the physician may be covered automatically. If not, the doctor may need to buy coverage at premiums that could cost a third of the doctor’s annual salary. That could leave the doctor feeling trapped – not just financially, but emotionally, which could affect the doctor-patient relationship and overall performance. 
“We will never be able to truly control costs until we give our physicians the freedom to use their best clinical judgment in treating patients, without the fear of being second-guessed by lawyers and judges,” Hursh says.

About Dennis Hursh

Dennis Hursh, author of “The Final Hurdle: A Physician’s Guide to Negotiating a Fair Employment Agreement,” has been providing health-care legal services for more than three decades. Since 1992, he has been managing partner of Hursh & Hursh, P.C. (, a Pennsylvania law firm that serves the needs of physicians and medical practices. He is a member of the American Health Lawyers Association, where he is involved in the Physician Organizations Practice Group.

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