"Defensive Medicine" Persists After Malpractice Reform

October 24, 2014

Changing laws to make it more difficult to sue physicians for medical malpractice may not reduce the amount of "defensive medicine" practiced by physicians.

Laws aimed at protecting physicians from malpractice claims do not appear to also lower health care costs by reducing defensive medicine practices.

The finding of a large study differs significantly from the pervasive view among physicians pushing for tougher medical malpractice legislation. Physicians may be less motivated by legal risk than they believe themselves to be, the authors concluded.

Key Finding:

- Defensive medicine practices were unchanged in Georgia, South Carolina, and Texas after medical malpractice laws underwent reform to better protect physicians.

Researchers combed through 3.8 million Medicare patient records from 1,166 hospital emergency departments from 1997 to 2011 to examine if the recent reforms to medical malpractice laws in three states-Georgia, Texas and South Carolina-affected the intensity of care. By looking at CT and MRI orders, as well as hospital admissions, the researchers were able to evaluate whether the intensity of care was linked to the reforms in the laws.

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

“Although a practice culture of abundant caution clearly exists, it seems likely that an aversion to legal risk exists in parallel with a more general risk aversion and with other behavioral, cultural, and economic motivations that might affect decision making,” The authors wrote. “When legal risk decreases, the ‘path of least resistance’ may still favor resource-intensive care.”

There was no reduction in the rates of CT or MRI utilization or hospital admission in any of the three reform states when the researchers compared the rates from before and after the reforms. In addition, the researchers found no reduction in charges in Texas or South Carolina. In Georgia, reform was associated with a 3.6% reduction in per-visit charges.

The findings were published in the New England Journal of Medicine this month.