Does malpractice reform work?

A new study by researchers at the Center for Studying Health System Change has found that Medicare patients receive more diagnostic tests and emergency department referrals when treated by physicians who worry about malpractice liability, regardless of whether states have adopted common malpractice tort reforms.

The study findings, published in the August Health Affairs, indicate physicians’ perception of their risk — rather than their actual risk — of malpractice liability predicts their practice of defensive medicine and suggest that traditional malpractice reforms, such as caps on damages, don’t change how physicians practice.

Funded by the National Institute for Health Care Reform, the study breaks ground by analyzing office-based physicians’ concerns about malpractice liability and the actual tests and ER referrals — based on insurance claims data — they ordered for Medicare patients with chest pain, headache and lower back pain. Patients whose physicians reported higher levels of malpractice concern received more services, the study found.

When researchers compared physicians’ level of malpractice concern with objective state-level indicators of malpractice liability risk, such as whether a state limits economic damages, they found no consistent relationships. In a few cases, referrals and treatments were lower in states with a higher malpractice liability risk.

“Traditional malpractice liability reforms don’t appear to resolve the concerns that drive physicians to practice defensive medicine,” said Dr. Emily Carrier, coauthor of the study.

Past malpractice research has focused on physician self-reporting on hypothetical cases. That generated conflicting results, leading to disagreements about the role of defensive medicine in the overuse of care.

The Health Affairs article, titled “High Physician Concern About Malpractice Risk Predicts More Aggressive Diagnostic Testing in Office-Based Practice,” is is available at www.hschange.org.