“Practicing defensive medicine is not good for patients or physicians,” Berlin said, citing a quote from a medical journal. “The adverse effects of defensive medicine are not limited to the increased cost of healthcare, but also affect the overall quality of the healthcare system.”

Berlin cited the upward trend in C-sections to 39 percent of births in the U.S (2016) as a form of defensive medicine. In November, he noted, a jury awarded a mother $101 million for brain damage because the hospital's delivery team was deemed to have ignored findings of an ultrasound indicating her baby was in distress.

“There is no malpractice lawsuit filed for performing an unnecessary C-section," said Berlin. “but a physician will get sued for failing to do so.”

He said the extra cost of defensive medicine to the U.S. health system varies widely based upon the source, but he conservatively put the number at $50 billion annually. The irony, according to Berlin, is that the goal of medicine is to avoid mistakes. But each additional test for defensive purposes can inject a fresh possibility for error.

For example, an unnecessary CT or MR exam can lead to a false positive and unnecessary surgery and complications. Also, more and more, ER doctors are routinely ordering imaging studies to rule out rare underlying conditions for patients who present with common symptoms, according to another panel member.

Berlin finds that physicians are less concerned today about being sued. But they worry about the impact of a lawsuit on their reputation. Since 2002 cases of malpractice suits have dropped from about 14,000 to 9,000 cases. Inversely, however, average jury awards have increased fourfold from about $100,000 to $400,000 in 2018.

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