JAMA on the effect of malpractice

Costly Insurance Fuels Defensive Medicine, but Not Relocation

In May 2003, Dr. David M. Studdert, from Harvard School of Public Health in Boston, and colleagues surveyed 824 Pennsylvania-based physicians who worked in six specialties at high risk of litigation (emergency medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology, and radiology). Pennsylvania was chosen because of dramatically rising costs of malpractice insurance there and abandonment of that market by several insurance companies.

Overall, 93% of respondents reported that they sometimes or often engaged in defensive medicine. Unnecessary ordering of diagnostic tests, unnecessary referrals and avoidance of high-risk patients were the most common forms.

Restricting the scope of clinical practice because of liability concerns was also common (42%), with 49% planning to do so in the next 2 years. Many physicians (39%) also reported they had decided to avoid caring for high-risk patients.

All these behaviors were more likely among physicians who perceived that their liability coverage was inadequate or their premium burden was extreme.

While some forms of defensive medicine may be merely wasteful, others may reduce access to care and even pose risks of physical harm, the authors note.

“We found that a lot of doctors are suspicious of particular types of patients and are spending a lot of time and mental energy trying to decide if a patient is likely to sue them, which I think is very counterproductive to quality,” co-author Dr. William M. Sage, at Columbia Law School in New York, told Reuters Health.

In the second paper, Dr. Sage and another group of investigators estimated the effects of changes in state malpractice law on the supply of “high-risk” physician specialties between 1985 and 2001. The researchers compared the number of physicians in states that instituted caps on damages with the number in states that had no caps on damages.

“It has been a claim of protort reform stakeholders that if you do not enact malpractice reform in a state, then doctors will leave the state,” Dr. Sage noted, “and if you do enact malpractice reforms, they might idealize it as an endless supply of physician services.”

“We found instead that there is a 3.3% greater supply of physicians in states that have capped malpractice compared with states that haven’t,” he said. The increased supply is due to more doctors initially setting up practice there, and to older doctors deciding to stay in practice longer, rather than retiring early.

While this is significant, Dr. Sage added, “3% is relatively modest in the big picture. It’s not as if simply capping malpractice damages is going to eliminate all problems with access to health care.”

Both studies show that “there are deep unaddressed problems in identifying medical errors and compensating medical injury that no one wants to confront,” he said.

Instead of or in addition to tort reform, Dr. Sage suggests, “what we need is a good system not based on litigation that is closely connected to patient care and types of mechanisms that make patient care better.”

He believes that there should be systems that “identify patient injury, tell patients what happened right away and offer compensation up front. If there is a dispute, it should be dealt with in some way other than litigation, some administrative process that is likely to be quicker and cheaper and better for all involved.”

Our current tort system invokes significant undesirable externalities on our health system. I repeatedly blog on this issue. Usually someone (often a tort lawyer) comments on “constitutional protections” and other arguments against a workable solution. I stick to my repeated comments. We need special health courts – not an adversarial system where health care suffers and few patients receive appropriate compensation.

One more relevant reference – Defensive Medicine Widespread, with Serious Consequences