Abstract
We approach the discussion on defensive medicine – and recent proposals for a “scudo penale” (criminal liability exemption) for doctors – from a law and economics perspective. The proposed reform, which narrows doctors’ liability to cases of gross negligence, is often hailed as a solution for all for the problems caused by defensive medicine. The main argument points to information asymmetries: doctors know medicine but not a patient’s litigiousness and judges lack information about the adequate clinical standards.
We argue that limiting the threat of criminal liability is not enough to eliminate the incentives for defensive medical practices. Drawing on a game-theoretical model that places less emphasis on information asymmetries between doctors, patients, and judges, we show that defensive medicine can stem from contractual incompleteness - specifically, the uncertainty that exists before all possible circumstances are known. As a result, we recommend that policy responses go beyond liability rules, and should instead reinforce shared pro-social intentions among all stakeholders through strong guidelines and an emphasis on fiduciary duties.
We argue that limiting the threat of criminal liability is not enough to eliminate the incentives for defensive medical practices. Drawing on a game-theoretical model that places less emphasis on information asymmetries between doctors, patients, and judges, we show that defensive medicine can stem from contractual incompleteness - specifically, the uncertainty that exists before all possible circumstances are known. As a result, we recommend that policy responses go beyond liability rules, and should instead reinforce shared pro-social intentions among all stakeholders through strong guidelines and an emphasis on fiduciary duties.