Fear of litigation does not significantly affect the way EPs practice, based on research on variation in state laws governing malpractice exposure.1,2 A group of researchers from Harvard set out to look at how EPs react to the actual experience of someone suing them.3

“The goal of our paper is to understand how the medical malpractice system can shape physicians’ practice patterns and lead to defensive medicine,” says Caitlin Carroll, the study’s lead author.

The researchers analyzed about 700 EPs and about 11 million ED discharges in the state of Florida. “Most of what is known about defensive medicine comes from observing physician behavior tied to legal reforms, such as state caps on monetary damage awards,” Carroll notes.

Carroll and colleagues took a new approach. “We wanted to study a different dimension of liability: immediate exposure to the malpractice system,” she explains. “The ED is a nice context for studying malpractice for a few reasons.” Decision-making is more challenging due to the lack of ongoing relationships with patients. Also, most EPs will be sued during their careers. Yet, there are little data on how actual experience with the liability system affects their perception of malpractice risk. “This is important,” Carroll says. “Allegations of malpractice have consequences for physicians who are not covered by malpractice insurance — for example, reputation damage.”

The researchers analyzed ED discharges in Florida and physician-level data on malpractice claims to study the effect of malpractice allegations on the labor supply and treatment intensity decisions of EPs. “One interesting finding is that malpractice allegations have two effects that work in opposite directions,” Carroll says. After they are sued for malpractice, EPs oversee fewer discharges. However, they spend more money on their remaining patients.

“This result suggests that defensive medicine can have an important influence on medical practice patterns, even if the aggregate effect on spending is close to zero,” Carroll says. Some other key findings:

EPs’ patient loads are reduced significantly after litigation is filed, and this is persistent over time. Most research on how malpractice affects physician labor supply focuses on the number of physicians practicing in a particular area (e.g., a state). This study’s finding, says Carroll, “suggests that malpractice pressure can lead to important changes in physician labor supply, even if the number of physicians in an area remains constant.”

EPs provide more intense care for their remaining patients, increasing total charges per patient by about 5% after an allegation.

EPs responded equally to legitimate claims of negligence as to allegations that ultimately are dismissed.

“Our results suggest that legal reforms surrounding damage caps may not fully address liability pressure for physicians and other healthcare providers,” Carroll says.

In ongoing work, Carroll and colleagues are studying whether EPs adjusted practice patterns equally for all patient types after a malpractice litigation, or whether EPs used information from the allegation to adjust care for clinically relevant patients.

It appears that the EPs’ practice changes were driven by the fact that they were sued, not how accurate the allegations really were, or how much money, if any, ultimately was paid out.

Thus, says Carroll, “more recent proposals, such as alternatives to litigation and safe harbors for physicians that follow clinical guidelines, may be more promising if they change the claim resolution process.”


  1. Waxman DA, Greenberg MD, Ridgely MS, et al. The effect of malpractice reform on emergency department care. N Engl J Med 2014;371:1518-1525.
  2. Congressional Budget Office. Economic and budget issue brief: Limiting tort liability for medical malpractice, Jan. 8, 2004. Available at: https://bit.ly/2ArfpT6. Accessed Jan. 3, 2019.
  3. Carroll C, Cutler D, Jena A. Physician response to malpractice allegations: Evidence from Florida emergency departments. In press.