Study: Malpractice Reform Doesn't Curb 'Defensive Medicine'

Malpractice reform may not be the solution to so-called “defensive medicine” after all, according to a new study.

The Rand Corp. this week released a report on the impacts of medical malpractice reform laws in 3 states: Georgia, Texas, and South Carolina. Researchers found that making it more difficult to sue doctors for negligence mostly did not result in lower costs and didn’t cause doctors to order fewer tests.

The study was published in the New England Journal of Medicine.

“Physicians say they order unnecessary tests strictly out of fear of being sued, but our results suggest the story is more complicated,” said Daniel A. Waxman, MD, PhD, in a press release. Waxman is a researcher at Rand and the study’s lead author.

The 3 states each instituted a “gross negligence” standard about a decade ago for malpractice cases stemming from Emergency Department visits. The higher standard means plaintiffs can only win damages if they make the case that the physician had a conscious disregard for best practices and made healthcare decisions knowing the actions were likely to cause serious injury.

According to Rand, most states have a common ordinary negligence standard, which means physicians can be sued for “failure to exercise reasonable care.”

Waxman said the new standard in the 3 states provides robust protection for physicians.

“These malpractice reforms have been said to provide virtual immunity against lawsuits,” he said.

To see what effect that “immunity” had on physicians, researchers looked at 3.8 million Medicare records from 1,166 patients in the 3 states and in neighboring states that hadn’t made the change. The data covered the years before the new laws and several years after, from 1997-2011.

Researchers found the laws had “no effect” on the number of CT and MRI scans ordered by physicians in states with the higher negligence standard. Those tests are often cited as drivers of unnecessary healthcare costs.

The laws also had no effect on the rate of hospitalizations following emergency visits.

In 2 of the 3 states — Texas and South Carolina – the laws didn’t appear to reduce emergency room charges. Georgia, however, did see a 3.6% drop in average emergency room charges in the years after it passed the new standard in 2005.

Still, the study shows that the problem of “defensive medicine” may be about more than fear of lawsuits.

“The 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,” Waxman said.