During the health reform debate, we periodically presented Q and A interviews with health care experts whose voices were scarce. Too often journalists sought out the same organizations and the same expert sources for their stories, offering up what became the conventional wisdom on different aspects of reform. To bring more variety into the conversation, our Excluded Voices series featured experts who weren’t on the media’s A-list of sources. We continue this series in the post-reform era. In this, the eighth entry in that series, we talk with Dr. Robert Berenson, an Institute Fellow at the Urban Institute in Washington D.C. The entire series is archived here.

Trudy Lieberman: Why does malpractice keep coming up as a solution to rising health care costs?

Robert Berenson: One reason is that Republicans don’t have much else to offer, and they exaggerate the importance of malpractice as a driver of health care cost increases. The doctors feed that because they have reasonable concerns about how malpractice affects them. So it’s common in debates to hear someone claim that malpractice contributes one-third of the cost of health care. There is no basis for that kind of claim.

TL: Do doctors really practice defensive medicine?

RB: Some doctors do, and sometimes that’s a good thing. When some OBs don’t deliver babies in high-risk pregnancies and refer patients to specialized centers, that may reduce complications and costs. In other cases, defensive medicine does lead to unnecessary tests and increased costs.

TL: What’s the cost of defensive medicine?

RB: It’s hard to do the research on this; a recent analysis by malpractice experts from Harvard provided an estimate of defensive medicine at about two percent of total health care spending. This estimate is as good as any estimate. It’s not trivial, but the notion it’s a major driver of spending is just not right.

TL: Then why is the argument that it is a driver of costs so appealing?

RB: When you hear it over and over, and when one side keeps referring to it, some portion of the public is likely to believe it. These are respected people—the doctors, and you tend to believe your senator when he or she asserts something with great conviction. When you have a predisposition that the government intrudes too much and the legal system drives up costs, you believe it. People won’t go to the New England Journal of Medicine or Health Affairs to get the facts.

TL: Where are the Democrats in this discussion?

RB: It’s typical for the Democrats not to knock this canard out of the box, to mix metaphors. It’s not in their interests. It will bring attention to the fact they get a lot of money from trial lawyers to defend the status quo. The Democrats want to deflect the issue, so the public doesn’t really get a full debate.

TL: Why is this issue coming back now?

RB: Republicans have challenged the president to do something about what everyone agrees is an issue. In fact, the malpractice system doesn’t work all that well. The president wants to demonstrate that he does listen to Republicans and can find some common ground. It deserves attention as part of health reform.

TL: So is malpractice a legitimate issue?

RB: There are times and places where some doctors have trouble getting liability insurance or face large increases in their liability insurance premiums, and that does produce patient access problems. Every decade it flares up. The cost of insurance is a cost of doing business for doctors, and it is reflected in increased health care spending—but it is very little overall. But in some areas those costs have caused dislocation for physicians and patients. Early in the last decade premiums were increasing, and some doctors could not afford liability insurance. Defensive medicine is common.

TL: What happens when you cap the amount of noneconomic damages paid out in a malpractice case?

RB: If you simply put caps on damages based on 1970s style reform in California—$250,000 limits on non-economic damages—you do hold down the number of suits and the cost of malpractice insurance, but it’s not clear doctors practice any differently and reduce health care spending. If you put in caps, you will reduce suits and payouts, and that will hold down premiums for providers. No one has successfully studied what that means for quality and safety for patients.

TL: Are patients hurt by such caps?

RB: There’s no question if you put in caps, some people lose their access to the courts. Lawyers take contingency fees, so if caps on damages are there, the case has to be much stronger for lawyers to agree to bring the case.

TL: Are you also saying that capping noneconomic damages does not act as a deterrent to practicing bad medicine?

Trudy Lieberman is a fellow at the Center for Advancing Health and a longtime contributing editor to the Columbia Journalism Review. She is the lead writer for The Second Opinion, CJR’s healthcare desk, which is part of our United States Project on the coverage of politics and policy. Follow her on Twitter @Trudy_Lieberman.