Total spending on medical malpractice was estimated at $30.4 billion in 2007. Although that is a substantial figure, those against medical-legal tort reform argue that it amounts to just over 1 percent of total U.S. health care spending. What they fail to recognize are the hidden costs of our medical-legal practice system - the indirect costs of defensive medicine.

All physicians would admit to ordering lab tests, recommending radiological studies and even performing procedures to avoid a lawsuit or better defend ourselves if we are sued.

Look no further than my specialty of

obstetrics for a good example of defensive medicine. Our country's cesarean section rate in 1970 was 5 percent. Today more than 30 percent of births are by cesarean section. Babies have not grown that much bigger! And, remarkably, the incidence of cerebral palsy has not changed during the 35 years of increasing cesarean section rates. Good science has shown that less than 10 percent of cerebral palsy has anything to do with events during labor and delivery. Regrettably, obstetricians have learned that our liability for the outcome of a birth is markedly reduced by performing a c-section. As one of my colleagues said, "We are never sued for the cesarean section we have done, but when we are sued it is often for the c-section we did not perform."

Calculating the actual costs of defensive medicine is difficult. Physicians have a hard time saying how much any given decision is driven by liability concerns. Doctors do get sued for failure to diagnose when not ordering tests, but our decisions are mixed with the desire to provide patients with the "best" evaluation and to please patients who want to feel that treatment is comprehensive. And in some cases, doctors increase their income by ordering more tests.

Many factors influence the amount of health care that is provided. Still, defensive medicine alone is estimated to contribute 15-30 percent to the total U.S. health bill. Defensive testing can lead to unnecessary, expensive and serious medical intervention. These hidden costs of our medical malpractice system are an important piece of the puzzle in our country, where health costs per capita are twice that of any other developed nation, despite worse outcomes than most other developed countries.

Emotional costs

Although these financial costs are significant, the greatest costs of our medical-legal system are emotional. A lawsuit, even a frivolous claim, changes the way physicians feel about our work. Most doctors find it difficult to work in the shadow of a legal system that seems to undermine the patient-physician relationship, a system that undermines the trust so fundamental to good care.

I will always remember a young New Hampshire obstetrician who stopped practicing after having been sued and successfully defended. "I will never give my blood, sweat and tears to medicine to go through that process again," she said. She is now teaching high school in another state.

According to the American College of OB-GYN, 8 percent of obstetricians retired over the past two years. The average age of retirement in obstetrics is 48. In a survey this year, 60 percent of obstetricians admitted to seeing fewer high-risk patients because of liability. Ironically, our best-trained obstetricians (perinatalogists) are most likely to be sued because they are asked and are willing to care for the high-risk patient, the woman who is most likely to have a less than optimal birth outcome.

And I grow tired of hearing Dartmouth medical students tell me they love what I do but would never consider the field of obstetrics because of our liability.

All of these are examples of how our medical-legal system is limiting access to obstetrical care. Parts of Northern New Hampshire and many other rural areas across the country have no obstetrical services. (next page »)