Defensive Medicine – Why This Argument Fails

Understanding why it fails — and how experienced malpractice attorneys counter it — is important for any patient or family trying to evaluate whether they have a legitimate claim.

What “Defensive Medicine” Actually Means

The term “defensive medicine” has two distinct uses, and the distinction matters enormously in a malpractice context.

In healthcare policy discussions, “defensive medicine” refers to the practice of ordering tests or treatments that are not medically indicated — not because they benefit the patient, but to create a paper trail that protects the physician against potential liability. Policy researchers have debated for decades whether this practice is widespread and whether it drives up healthcare costs without improving outcomes.

In the malpractice defense context, however, “defensive medicine” is often invoked in a completely different way — to argue that the physician appropriately exercised clinical judgment in not ordering a test or not pursuing a particular course of treatment. The implication is that malpractice litigation creates perverse incentives for physicians to over-test, and that a physician who chose not to order a test was simply practicing responsibly.

These two uses of the term create a rhetorical sleight of hand that patients — and juries — must be equipped to recognize.

The Standard of Care Is Not About What Is “Safe” for the Doctor

The legal standard for medical malpractice in Pennsylvania is whether the physician’s conduct met the standard of care — the conduct of a reasonably competent physician in the same specialty, acting under the same or similar circumstances. That standard is determined by what the evidence shows a qualified physician should have done for this patient, not by what a physician might do to protect themselves from a lawsuit.

When a physician fails to order a test that the standard of care required — an MRI for a patient with persistent neurological symptoms, an echocardiogram for a patient with unexplained cardiac symptoms, a colonoscopy for a patient with rectal bleeding and a family history of colon cancer — the failure cannot be justified by arguing that ordering the test would have been “defensive medicine.”

Ordering a test that is clinically indicated is not defensive medicine. It is medicine. The standard of care exists precisely to establish which tests and treatments are indicated for which patients in which circumstances. When a physician departs from that standard, the patient bears the harm — and the defense that the physician was merely avoiding over-testing does not hold.

The NEJM Studies: What the Research Actually Shows

Studies published in the New England Journal of Medicine and other peer-reviewed journals have examined the question of whether filed malpractice claims reflect actual negligence. Some of this research found that a significant percentage of claims involved cases where experts found no departure from the standard of care.

Defense attorneys sometimes cite these findings to argue that the malpractice system is over-inclusive — that too many cases are filed that lack merit.

What is less often cited is that the same body of research consistently demonstrates the opposite problem: the vast majority of patients who suffer serious harm from medical negligence never file a claim at all. The Harvard Medical Practice Study estimated that for every patient who files a malpractice claim, multiple patients who suffered preventable harm do not. The malpractice system, by virtually every measure, under-compensates injured patients rather than over-compensating them.

The patient harmed by a physician’s failure to diagnose a cancer, to treat a septic infection, or to refer to a specialist is not a manufactured plaintiff. That patient exists because something went wrong that should not have gone wrong. Whether to characterize the physician’s choices as “defensive medicine,” “clinical judgment,” or simply negligence is a question for the evidence — and for expert witnesses who can evaluate what a qualified physician should have done.

How This Argument Is Used Against Patients — and How We Counter It

In practice, the defensive medicine argument surfaces in malpractice cases in several ways:

• The physician testifies that they chose not to order a test because it was “not indicated” or “would not have changed the management,” without articulating a clear clinical basis for that judgment.
• The defense expert argues that the physician’s approach was within the range of acceptable clinical practice, even if it was not the approach most qualified physicians would have taken.
• Hospital administrators argue that their institution’s protocols discouraged the test or procedure at issue as part of cost-containment or clinical appropriateness initiatives.

We counter these arguments with the standard of care itself — using the published guidelines of relevant specialty societies, peer-reviewed literature, and the testimony of qualified expert witnesses to establish what a competent physician should have done for this specific patient in this specific clinical situation. When the evidence shows that the standard required action and the physician took none, the defensive medicine label does not change the analysis.

The Cases We Handle: When Inaction Causes Harm

The cases that most clearly illustrate the defensive medicine argument’s failure are the delayed diagnosis cases — where a physician failed to order a test that would have caught a cancer, a cardiac condition, a pulmonary embolism, or a neurological emergency at a stage when it was treatable.

In these cases, the argument is sometimes that the physician was avoiding unnecessary testing. But when the evidence shows that the test was indicated by the patient’s symptoms, risk factors, or prior findings — and that a qualified physician in that specialty would have ordered it — the failure to act is not prudent restraint. It is a departure from the standard of care.

At Lupetin & Unatin, our clients are harmed not by unnecessary tests — but by tests that were never ordered, referrals that were never made, and results that were never followed up. The patients we represent are not the product of a system that over-litigates. They are the visible fraction of a much larger population of patients harmed by physicians who did too little, not too much.

About Lupetin & Unatin, LLC

Lupetin & Unatin is a boutique medical malpractice and catastrophic injury firm based in Pittsburgh, Pennsylvania. We have represented Pennsylvania patients and families for decades in cases where physicians failed to meet the standard of care. Our attorneys are Fellows of the American College of Trial Lawyers, recognized by Super Lawyers and Best Lawyers in America, and named Lawyer of the Year for Personal Injury Litigation in Pittsburgh by Best Lawyers. We handle all cases on a full contingency fee basis — no fee unless we win.