Thursday, October 16, 2014

Will malpractice reform prevent “defensive medicine”?

The New England Journal of Medicine
October 16, 2014
The Effect of Malpractice Reform on Emergency Department Care
By Daniel A. Waxman, M.D., Ph.D., Michael D. Greenberg, J.D., Ph.D., M.
Susan Ridgely, J.D., Arthur L. Kellermann, M.D., M.P.H., and Paul
Heaton, Ph.D.

Emergency department care has been a particular focus of a new
generation of malpractice reform laws. Approximately a decade ago, the
states of Texas (in 2003), Georgia (in 2005), and South Carolina (in
2005) changed their malpractice standard for emergency care to "willful
and wanton negligence" (in Texas) and "gross negligence" (in Georgia and
South Carolina). From a legal standpoint, these two standards are
considered to be synonymous and are widely considered to be a very high
bar for plaintiffs. Under typical interpretations of this standard, a
plaintiff must show that a physician had "actual, subjective awareness"
of "the likelihood of serious injury" but nevertheless proceeded with
"conscious indifference."

The Texas, Georgia, and South Carolina laws are intended to protect
physicians who are practicing with incomplete information in
high-intensity care settings. The enactment of these laws offers an
unusual circumstantial experiment with which to evaluate a type of
reform that is qualitatively different from what has been studied

Study Design

We used a quasi-experimental analytic approach that was designed to
evaluate the effect of legal reform on the treatment of Medicare
patients in the emergency department; we attempted to isolate the effect
of the law from temporal trends and from characteristics of patients and
hospitals (i.e., to evaluate changes that could be attributable to the
new policy).


Malpractice reform was not associated with a significant decrease in CT
or MRI utilization in any of the three states. There was no significant
reduction in per-visit emergency department charges in Texas or South
Carolina. In Georgia, reform was associated with a 3.6% reduction (95%
confidence interval [CI], 0.9 to 6.2; P=0.01) in charges. There was no
reduction in the rate of hospital admissions in any of the three states.


Malpractice reforms in Texas, Georgia, and South Carolina, which changed
the liability standard for emergency care from ordinary negligence to
gross negligence, provide unusually broad protection for emergency
physicians. We did not find evidence that these reforms decreased
practice intensity, as measured by the rate of the use of advanced
imaging, by the rate of hospital admission, or in two of three cases, by
average charges. Although there was a small reduction in charges in one
of the three states (Georgia), our results in aggregate suggest that
these strongly protective laws caused little (if any) change in practice
intensity among physicians caring for Medicare patients in emergency

In the context of the existing literature, our findings suggest that
physicians are less motivated by legal risk than they believe themselves
to be. 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. When legal risk
decreases, the "path of least resistance" may still favor
resource-intensive care. Our results suggest that malpractice reform may
have less effect on costs than has been projected.


Comment by Don McCanne

When the topic of controlling health care costs comes up, those opposed
to single payer reform, and, for that matter, opposed to the Affordable
Care Act, frequently cite the need for malpractice reform, often
claiming that defensive medicine (ordering unnecessary tests and medical
interventions merely to prevent lawsuits) is a major cause of excess
health care spending. This article casts doubt that malpractice reform
would reduce supposed defensive medicine.

The three states studied - Texas, Georgia and South Carolina - passed
laws requiring a much more rigid standard of "gross negligence" for
emergency department physicians to be found liable for malpractice. Data
available from Texas demonstrates that their reforms did reduce
malpractice claim filings by 60 percent, and reduced malpractice
payments by 70 percent. Physicians were reassured that they were
protected as long as they did not proceed with "conscious indifference"
with care that had a "likelihood of serious injury."

Now that there was no longer a need for CT and MRI scans and hospital
admissions that were done only to prevent lawsuits, the level of these
presumed defensive medicine measures should have decreased. They did not.

This suggests that these measures were taken for reasons other than
simply to prevent lawsuits. A low yield test or procedure is not
necessarily a no yield intervention. These are done because there is a
real chance, even if at low odds, that the intervention may benefit the

This study leads us to conclude that the concept that there is excessive
resource-intensive care provided strictly as defensive medicine should
be abandoned and replaced with patient-centered outcomes research to
better determine what is of value in health care (PCORI in ACA is such
an attempt).

We should no longer allow ourselves to be distracted by false promises
of health care savings through flawed concepts such as defensive
medicine. We know what will greatly reduce wasteful spending, and that
is a single payer national health program. We must not be distracted
from trying to achieve that goal.

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