Policy/Biz

Malpractice Immunity Does Not Deter Doctors Who Practice 'Defensive Medicine'

Malpractice Lawsuits
Immunity from malpractice lawsuits does not stop doctors from practicing defense medicine. Photo courtesy of Shutterstock

In the attempt to avoid a potential malpractice lawsuit, many doctors will practice “defensive medicine,” where they either avoid high-risk patients and procedures altogether or order up cautionary tests, procedures, or visits. A recent study conducted by the nonprofit research organization RAND Corporation has revealed that granting immunity for medical malpractice lawsuits does not reduce defensive medicine practiced by doctors.

"Our findings suggest that malpractice reform may have less effect on costs than has been projected by conventional wisdom," Dr. Daniel A. Waxman, the study's lead researcher at RAND, said in a statement. "Physicians say they order unnecessary tests strictly out of fear of being sued, but our results suggest the story is more complicated."

Waxman and his colleagues gathered data using 3.8 million Medicare patient records from 1,166 hospital emergency departments in Georgia, Texas, and South Carolina between 1997 and 2011. These three states were used because of the changes made to the legal malpractice standard for emergency care to gross negligence around a decade ago. This change requires the patient to prove their physician made a conscious decision to avoid the use of reasonable care while knowing their decision would result in serious injury.

The quality of care in these states was compared before and after the reform took place to neighboring states that did not pass malpractice reform laws. Quality of care was measured by if the physician ordered a CT or MRI scan, if the patient was readmitted into a hospital’s emergency department, and the total cost of the visit. Over the course of 14 years, malpractice reform laws did not reduce advanced imaging use or the rate of patients being readmitted into a hospital’s emergency department. Although Georgia saw a minimal drop in emergency department costs at 3.6 percent, there was no cost reduction in Texas and South Carolina.

"These malpractice reforms have been said to provide virtual immunity against lawsuits," said Waxman, who is also an emergency medicine physician at the David Geffen School of Medicine at UCLA. "This study suggests that even when the risk of being sued for malpractice decreases, the path of least resistance still may favor resource-intensive care, at least in hospital emergency departments.”

According to a study cited by the American Academy of Orthpedics, out of 300 physicians 76 percent said their ability to provide quality of care for patients was hindered by the prospect of a malpractice lawsuit. The practice of defensive medicine is considered a monetary burden on national health care costs by resulting in hundreds of billions of dollars wasted on unnecessary health care spending. Findings from this study defy the opinion of experts who say malpractice reform laws help lower health care costs.  

Source: Greenberg M, Ridgely S, Heaton P, Kellermann A, Waxman D. New England Journal of Medicine. 2014. 

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