Senate Joint Resolution (SJR) 159 of the 1994 Session requested the Joint Commission on Health Care to study the impact of defensive medicine and negligent medical care.

Defensive medicine is practiced by physicians and other providers to avoid the potential liability of a malpractice lawsuit. Defensive medicine typically occurs in two ways. Positive defensive medicine occurs when physicians order additional tests or procedures because of perceived malpractice risk. Negative defensive medicine occurs when physicians avoid high risk procedures or restrict their practices to low risk patients.

Numerous studies have attempted to estimate the cost of defensive medicine. Estimates of the national cost of defensive medicine range from $14 billion to $81 billion annually. The Congressional Office of Technology Assessment recently concluded that while defensive medicine certainly exists, there is no acceptable method for measuring its full extent and cost. Whatever amount of true defensive medicine is occurring, there is a cost associated with it which contributes to the problem of affordable health care. As such, efforts to reduce the amount of defensive medicine without compromising the ability of the malpractice system to detect and deter negligent medical practice are necessary.

Virginia is considered to have a conservative malpractice environment due largely to a $1 million cap on total damages. While conventional tort reforms can lower malpractice insurance premiums, there is little evidence that these reforms will significantly reduce defensive medicine. Research findings suggest that medical practice guidelines hold the most promise for reducing defensive medicine. In addition, refinements to Virginia's Malpractice Review Panel process may improve the effectiveness of this process in resolving disputes.

The study offers two policy options for consideration. Option I would maintain the status quo. Option II would establish a task force comprised of medical, legal and risk management experts to review the concept of practice guidelines as a means of reducing defensive medicine, and recommend other strategies for improvement such as improving the medical malpractice review panel process.

Our review process on this topic included an initial staff briefing which you will find in the body of this report followed by a public comment period during which time interested parties forwarded written comments to us on the report. In many cases, the public comments, which are provided at the end of this report, provided additional insight into the various topics covered in this study.