Don't Expect Obama to Lead Malpractice Reform

Cooper is also an advocate for "health courts" that would hear malpractice cases outside of "normal court litigation."

While pointing out that "the direct problem of malpractice is about 2% of healthcare costs," Cooper concedes that there are significant indirect costs attached to defensive medicine. "I've seen figures as high as $100 billion. That is a lot of money. I would accept that it is a real problem that needs a real solution," he says.

"What you also can't pretend isn't a problem" are the tens of thousands of preventable deaths each year in the United States that are due to medical errors, Cooper says.

Malpractice 'Bogey man'

Taylor Lincoln, research director of the Congress Watch division of Public Citizen, calls the notion that malpractice is a healthcare cost driver a "bogey man."

"This idea that healthcare costs are somehow medical malpractice is a driver of healthcare costs is completely false. There is just plain no evidence," he says.

"If you take the most inclusive broad-based read, which would be the liability insurance payments by doctors and hospitals, including their payouts, litigation costs, paying insurance company overheads, malpractice is 0.7% of all medical costs in the country," he says. "Medical malpractice payments, correcting for the CPI, have fallen for about five years in a row and yet medical provision costs, the costs of providing care in America, has continued to gallop forward at about twice the rate of inflation."

Lincoln says the more plausible explanation for the rise in healthcare costs is the financial incentive physicians get for ordering and providing more medical procedures.

He says advocates for malpractice reform ignore Institute of Medicine estimates that as many as 98,000 people die each year because of preventable medical errors. "Nobody disputes this. Hospital and medical care are extremely unsafe. Whether it is the fault of the systems or individual physicians, it's just way too unsafe," he says.

"So, to believe this defensive medicine argument, you have to believe that in the same universe you have an incredibly unsafe medical environment where way too many errors occur, with the exception of vigilance for ordering tests, in which case these doctors through no personal motivation of enrichment happen to be incredibly conscientious and vigilant," he says.

Boustany disagrees. He says healthcare reform won't work unless the federal government addresses expensive and pervasive defensive medicine. "The issue of malpractice is real. It adds significant costs to the healthcare equation, and it has to be addressed," he says.

"You can talk to physicians and you will find unanimously across the board that no matter how much they are focused on trying to practice good medicine and doing things by the book, if there is uncertainty, they will order additional tests," he adds.