Medical Malpractice News

New Study Shows that Malpractice Reform has Little Impact… Or Does It?

Tags: , , , , , , , , , | Comments: 0 | October 21st, 2014

Malpractice Reform, little impact?A new study published by the Rand Corporation in the New England Journal of Medicine has many in the media aflutter with fresh pronouncements that reducing physicians’ risk of being sued doesn’t reduce defensive medicine and doesn’t save money. The study purports to show that in three states where reform was enacted certain variables, taken as indicators of defensive medicine, did not change substantially. But let’s look a little closer.

The study looked at over three million Medicare patients over the period from 1997 to 2011. Researches looked specifically at emergency room visits and measured three variables: the number of CT scans and MRIs ordered, the rate at which patients were checked into the hospital following their ER visit, and total charges for the ER visits. What they found was that in three states that changed their standard for emergency care from ordinary negligence (failure to exercise a reasonable standard of care) to gross negligence (knowingly failing to exercise a reasonable standard of care), Georgia (2005), South Carolina (2005), and Texas (2003), there was no appreciable difference in the rate of advanced imaging or inpatient check-ins, and that only in Georgia was there a very small decrease in costs. The study’s author, Dr. Daniel A. Waxman, concluded that, “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.” But does it?

Let’s consider a few factors that may raise some questions about just how meaningful this study really is, or at least how broad (or not) its implications are:

  • The study only included Medicaid patients. This seems like a major point to take into consideration. All of the data came from patients 65 years old or older. Along with infants, what group of people are doctors more apt to be cautious with than the elderly, regardless of concerns about being sued? If an elderly patient comes into the emergency room after a fall they are much more likely to have a CT scan performed than a young or middle aged person because they are more likely to have broken a bone or sustained some type of internal injury. Likewise, an eighty year old patient is more likely to have a compromised immune system and end up checked into the hospital for an infection than a younger, healthier person who might just be given an antibiotic. Of course all of this means that these same people are more likely to have high ER bills.
  • In addition to needing more care, elderly patients are less likely to sue in the first place. In fact, a 2012 study conducted by the state of Washington confirmed what most of us would guess: over a four year period in the state of Washington claims filed by all patients over the age of 61 amounted to just a little more than the number of claims filed by people aged 41-50 alone. So not only is the data being drawn from a population that needs more care and to be treated with greater caution, but it’s also a population that is less likely to sue doctors in the first place. Thus, to the degree that any doctors are making these kind of conscious calculations, these are patients for whom defensive considerations would be among the least important.
  • The study only included ER physicians/trips. Here we would just point out that while all studies have their limits and constraints it’s worth keeping in mind how looking at ER physicians has both merits and liabilities. The study’s authors note that ER physicians work in an often information-low, resource-rich environment. That makes them more apt to engage in defensive medicine than most doctors. But that begs the question, is it really defensive medicine if the doctor is genuinely working with a paucity of information? Legal concerns or not, a conscientious doctor may feel constrained to perform “just in case” procedures in a situation where she doesn’t have all the information necessary to rule out certain diagnoses. In other words, precisely because of the nature of what they do, ER doctors might be in the weakest position to change their practices, not be because they are engaging in defensive medicine or seeking to avoid being sued, but because they are being careful with their patients’ health in situations where other information is at a minimum.
  • The study only covered 5-7 years after the standards changed. As noted above, Georgia and South Carolina did not change their laws until 2005, while Texas changed theirs in 2003, and the study looked at data up through 2011. But is 5-7 years worth of data really enough to determine whether the law will have the effects being looked at? Defensive medicine is something that is learned and developed in a context. It is a result of a culture of fear/worry that effects how physicians are educated, hospital policies, and generally the way doctors are conditioned to think. Is it really reasonable to expect that ship to turn in a matter of a few years? It will take time for doctors to see how the new standard of care is applied, to see real differences in the success or failure of questionable or frivolous lawsuits, and to begin to feel comfortable enough with a risk environment to actually make changes to how they practice medicine. To see real difference in the practice of defensive medicine legislative changes have to settle in and doctors have to see them have an impact over a period of time.
  • Much of the analysis of the study seems to imply that the only value in protecting doctors from lawsuits is monetary savings through reduction of defensive medicine. Granted, this is one of the goals of legislation like that passed in Georgia, South Carolina, and Texas. But it’s not the only goal. Part of the value is in reducing risk to doctors, even if it does take time for that to translate into changes in the way they practice medicine. Promoting good morale in the medical community is important for continuing to draw young people to the field as we face substantial growth in the elderly population over the decades to come. If gross negligence is the right standard of care then the legislation is good whether it leads to immediate savings or not.

These are just some consideration we thought were worth bringing up. All studies are limited, and we’re not saying this one isn’t valuable. But interpretation is important and we think that perhaps some of the news outlets have gotten a bit carried away with this one. What do you think? Does the study make you question the value of reforms like those passed in Georgia, South Carolina, and Texas?