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Malpractice Reform Doesn’t Always Reduce ‘Defensive Medicine’ in EDs

October 9th, 2016

LOS ANGELES – Even in states that make it more difficult to sue for malpractice, emergency physicians remain likely to practice “defensive medicine,” according to a new study from the RAND Corporation.

The study, published recently in the New England Journal of Medicine, looked at the practice of emergency physicians in three states that raised the standard for malpractice in the emergency room to “gross negligence,” meaning plaintiffs must prove clinicians knew their actions would cause harm. The stronger legal protections didn’t mean significantly less expensive care, however, despite contentions of malpractice reform advocates.

“Many believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending,” according to the study. “Emergency physicians practice in an information-poor, resource-rich environment that may lend itself to costly defensive practice.”

"Our findings suggest that malpractice reform may have less effect on costs than has been projected by conventional wisdom," added lead author Daniel A. Waxman, MD, a RAND researcher who also practices emergency medicine at UCLA’s David Geffen School of Medicine. "Physicians say they order unnecessary tests strictly out of fear of being sued, but our results suggest the story is more complicated."

The research focused on three states – Georgia, Texas and South Carolina – where the legal malpractice standard for emergency care had been changed to gross negligence for about the last decade. In those states, plaintiffs who bring suit must prove that doctors consciously disregarded the need to use reasonable care with knowledge that their actions were likely to cause serious injury.

"These malpractice reforms have been said to provide virtual immunity against lawsuits," Waxman pointed out. The more common “ordinary negligence” standard, or a failure to exercise reasonable care, is used in most other states.

For the study, researchers reviewed 3.8 million Medicare patient records from 1,166 hospital EDs from 1997 to 2011, comparing care in the three reform states, before and after the statutes took effect, to care in neighboring states without similar malpractice reform.

Noting that advanced imaging and hospitalization are costly and that physicians often identify those as common defensive medicine practices, the study examined whether computed tomography or magnetic resonance imaging were ordered, whether the patient was admitted after the ED visit, and how much was charged overall.

Results indicate that malpractice reform laws had no effect on the use of imaging or on the rate of hospitalization following emergency visits. In terms of overall visit charges, Texas and South Carolina showed no reduction. Compared to neighboring states, however, a drop of 3.6% in average ED charges was identified after Georgia’s 2005 reform law went into effect.

"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," Waxman said.