Malpractice "Immunity" Does Not Prevent Wasteful Spending

Legal reforms that enact stronger protections against malpractice claims do not necessarily reduce defensive care, according to a new study by the RAND Corporation published in the New England Journal of Medicine.

Texas (2003), Georgia (2005), and South Carolina (2005) all enacted legislation that raised the standard for malpractice in the emergency room to gross negligence roughly a decade ago. Other states use the negligence standard or a failure to exercise reasonable care, according to RAND. The higher standard in Texas, Georgia, and South Carolina means plaintiffs must prove the physician consciously disregarded the need to use reasonable care with the knowledge that his or her actions were likely to cause harm.

According to Daniel A. Waxman, MD, the study's lead author and a researcher at RAND, these reforms are viewed as a sort of immunity against malpractice lawsuits. The researchers studied the behavior of emergency physicians in these 3 states to determine whether the stronger legal protections would translate to less wasteful spending.

“Our findings suggest that malpractice reform may have less effect on costs than has been projected by conventional wisdom,” Waxman said in a statement. “Physicians say they order unnecessary tests strictly out of fear of being sued, but our results suggest the story is more complicated.”

In September, a JAMA study of 3 hospitals in Massachusetts found more than a quarter of patient orders were considered partially defensive medicine and accounted for 13% of hospital costs. The investigators reported that being more defensive did not actually increase costs per patient. Less defensive doctors generated similar costs per patient as doctors with at least 10% of orders being considered defensive.

The study found no reduction in CT or MRI utilization or hospital admission rates. Georgia’s reform was associated with a 3.6% reduction in per-visit emergency department charges, but there were no reductions in charges in Texas or South Carolina.

“This 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,” Dr Waxman said.