Doctors’ Fear of Lawsuits Trumps State Malpractice Tort Reforms

August 7, 2013

Medicare patients receive more diagnostic tests and emergency department referrals when treated by physicians who worry more about malpractice liability, regardless of whether states have adopted common malpractice tort reforms.

According to a study by the Center for Studying Health System Change (HSC) in the August Health Affairs, physicians’ perception of their risk —rather than their actual risk — of malpractice liability predicts their practice of defensive medicine.

The findings suggest that traditional malpractice reforms, such as caps on damages, don’t change how physicians practice.

Funded by the National Institute for Health Care Reform, the study breaks new ground, according to the researchers, by analyzing office-based physicians’ concerns about malpractice liability and the actual tests and emergency referrals —based on claims data — they ordered for elderly Medicare patients with new complaints of chest pain, headache and lower-back pain. Across the conditions, patients whose physicians reported higher levels of malpractice concern received more services, the study found.

For example, patients with chest pain were more likely to be referred to the emergency department if their physician had a high or medium level of malpractice concern, according to the study. Likewise, patients with a headache were more likely to receive advanced imaging of the brain, such as a CT or MRI scan, if their physicians had high levels of malpractice concern.

In contrast, when researchers compared physicians’ level of malpractice concern with objective state-level indicators of malpractice liability risk, such as whether a state caps economic damages, they found no consistent relationships. In a few cases, care use was lower in states with a higher level of measured malpractice liability risk.

“Traditional malpractice liability reforms don’t appear to resolve the concerns that drive physicians to practice defensive medicine,” said Emily R. Carrier, M.D., an HSC senior researcher and coauthor of the study with James D. Reschovsky, Ph.D., an HSC senior fellow; David Katz, M.D., an associate professor at the University of Iowa; and Michelle M. Mello, Ph.D., J.D., a professor at the Harvard School of Public Health.

“Dealing with defensive medicine, which not only increases costs but subjects patients to unnecessary care, may require reassuring physicians that medical injuries can be resolved in less adversarial and stressful ways while still protecting patients, Carrier said.

According to these researchers, past malpractice research has focused on physician self-reports of how they would treat hypothetical patients and various measures of liability risk, including state-level malpractice insurance premiums and tort reforms, such as caps on damages. These studies generated conflicting results, leading to disagreements about the role of defensive medicine in the overuse of care, they said.

By comparing claims for physicians who report high levels of malpractice concern with claims for physicians with less concern, the study provides a new picture of the two groups’ actual practice behavior, according to the study.

The Health Affairs article, titled “High Physician Concern About Malpractice Risk Predicts More Aggressive Diagnostic Testing in Office-Based Practice, ” is based on a national sample of elderly Medicare fee-for-service beneficiaries linked to HSC’s 2008 Health Tracking Physician Survey. The study included Medicare Part A and B claims from nearly 1.9 million beneficiaries who received services from 3,469 physician survey respondents in 2007-09.

The Center for Studying Health System Change is a nonpartisan policy research organization. Based in Washington, D.C., HSC is affiliated with Mathematica Policy Research.

Was this article valuable?

Here are more articles you may enjoy.