It is often claimed that “defensive medicine” is a major source of wasteful medical spending. One report estimated that $210 billion is spent each year on needless care that is motivated by fear of lawsuits. Despite this widespread belief, few previous studies have directly measured the effect of malpractice reform laws on clinical practice. Emergency care may be at particular risk for accruing high costs from defensive medicine practices. “Emergency physicians operate in an information-poor, high-risk environment that would seem to be as prone to defensive practice as any other,” says Daniel A. Waxman, MD, PhD.

Most changes to tort law have focused on limiting the size of awards, such as putting a cap on noneconomic damages. ED care, however, has been a focus of a new kind of reform that might be expected to offer a stronger sense of protection to emergency physicians. About 10 years ago, Texas, Georgia, and South Carolina changed their malpractice standard for emergency care from the usual “deviation from the standard of customary practice” to “willful and wanton negligence” (in Texas) and “gross negligence” (in Georgia and South Carolina). Those two standards are essentially synonymous. The three states’ laws, which also have other provisions that apply outside the ED, are summarized in Table 1.

“The gross negligence standard is widely acknowledged to be an incredibly high bar for plaintiffs to meet, and the laws therefore offer very strong protection to emergency physicians,” Dr. Waxman says. “For example, plaintiffs must prove ‘conscious indifference,’ meaning that a physician knew that an action would probably cause serious injury and then took the action anyway.”


New Research

In a study published in the New England Journal of Medicine, Dr. Waxman and colleagues investigated whether the changes to malpractice standard for emergency care to gross negligence in Texas, Georgia, and South Carolina changed clinical practice. The authors used a 5% random sample of Medicare fee-for-service beneficiaries to identify all ED visits to hospitals in these reform states and in neighboring states from 1997 through 2011. They then compared patient-level outcomes before and after legislation in reform and neighboring states. Outcomes included policy-attributable changes in the use of CT or MRI, per-visit ED charges, and the rate of hospital admissions.

According to the results, no policy-attributable reduction in the intensity of care was detected for eight of the nine state outcome combinations tested. There were no reductions in the rates of CT or MRI utilization or hospital admission in any of the three reform states and no reduction in charges in Texas or South Carolina. In Georgia, reform was associated with a 3.6% reduction in pervisit ED charges (Table 2). “In aggregate, our results suggest that these reforms had no effect on what emergency physicians did for Medicare patients,” says Dr. Waxman. “Our findings suggest that what has been called ‘defensive medicine’ historically may be something else.”

Assessing Implications

Overuse of CT and MRI has been cited as a common defensive practice by emergency physicians and other specialists. However, results of the study by Dr. Waxman and colleagues suggest that imaging use in EDs is unlikely to be affected by malpractice reform alone.

“Physicians actually believe that legal risk motivates them to order otherwise unnecessary care, but the data suggests that the story is more complicated,” Dr. Waxman says. “Emergency physicians practice in a culture of abundant caution, but we are just as worried about making mistakes as we are about being sued. In most cases, ‘doing more’ is the path of least resistance.”

Thinking Ahead

Dr. Waxman argues that it may be time to retire the term defensive medicine. “Media stories covering our study have reported our findings in the context of saying that physicians still practice defensively despite tort reform, but this isn’t quite right,” he says. “The term defensive medicine implies that physicians are ordering care for no other reason than self-preservation. Our study suggests that—to our credit—this is not what’s really happening.”

Dr. Waxman emphasizes that further research is needed to know whether the findings from his study group’s analysis can be generalized to other high-risk specialties, such as obstetrics/gynecology. He also emphasizes that efforts to reduce defensive medicine practices are one of many possible reasons that a state might choose to enact malpractice reform legislation.


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