Limiting Malpractice Claims May Not Curb Costly Medical Tests

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Malpractice reform may not keep physicians from ordering unnecessary and expensive tests, a practice known as “defensive medicine,” a new study reports.

Emergency room physicians in three states that enacted malpractice reform continued to order imaging tests and admit patients for treatment at the same rate, even though the law had been changed to make it more difficult for patients to sue them, according to researchers at RAND Corporation, a nonprofit research organization.

Two of the states, Texas and South Carolina, experienced no reduction in the average amount of money spent caring for each ER patient. The third, Georgia, had a 3.6 percent reduction in emergency room charges.

“If you’re looking at ways to decrease our national spending on health care or reduce waste, then you’re going down a blind alley if you’re spending your time thinking about malpractice reform,” concluded lead author Dr. Daniel Waxman, an adjunct natural scientist at RAND and a visiting associate professor of emergency medicine at the University of California, Los Angeles.

The researchers chose the three states because a decade ago each changed its legal malpractice standard for emergency care to gross negligence, “which is a very high bar for plaintiffs to meet to prove malpractice,” Waxman said. Other states use the more common ordinary negligence standard, or a failure to exercise reasonable care.

“They passed really very strong reforms,” he said. “These laws essentially redefined malpractice.”

Researchers reviewed over 3.8 million Medicare patient records from 1,166 hospital emergency rooms between 1997 and 2011. They compared care in the three reform states to care in neighboring states that did not pass malpractice reform.

The study found that ER costs actually increased slightly in Texas and South Carolina following reform, and that patients were admitted to the hospital at the same rate as before. Doctors also ordered CT scans and MRIs at the same rate.

The findings are published in the Oct. 16 edition of the New England Journal of Medicine.

“This study reveals what we would hope, which is that doctors’ decisions are based on medical judgment, not on fear of litigation,” said John Thomas, a professor at the Quinnipiac University School of Law in North Haven, Conn.

Prior economic studies have shown that the only component of malpractice reform that seems effective at controlling costs are provisions that limit how long a person can wait before bringing a lawsuit, Thomas said.

Thomas added that recent estimates place the total cost of malpractice law and insurance at around 3 percent of all health care expenses.

“It’s legislation looking for a problem that doesn’t exist, and it’s legislation that’s now been shown to be ineffective, anyway,” he said. “If the legislature tries to step in and make a difference, it doesn’t matter. It’s the professionals who make the decisions — which I think is heartening, to be honest.”

Waxman said doctors have admitted in many surveys that they do practice defensively and order too many tests, and not just for legal reasons.

“Nobody wants to be sued, but we don’t want to make mistakes either. We don’t want to cause harm. We don’t want to look foolish,” he said. “In the ER, you have to make snap judgments on incomplete information. Nobody ever faults you for doing another test or admitting a patient to the hospital, but there are lots of ways you can be faulted for not doing those things.”

He couldn’t say precisely what might work to keep doctors from ordering too many tests or admitting people unnecessarily into the hospital.

“The important thing is to take the things that might work and study those, rather than spending time on things that won’t work,” Waxman said.

Waxman noted that the study focused on the emergency room because the reform laws were specific to the ER, and that it’s not clear how the findings would apply to other hospital departments.

ER doctors have a lot of resources at their command, with no one questioning their use, he added.

“You would think that if an effect were to be found, this would be the place to find it,” Waxman said.

More information

For more on emergency medicine, visit the U.S. National Institutes of Health.

Source: HealthDay

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