Malpractice reforms enacted in three states approximately 10 years ago failed to reduce defensive medicine in the emergency department, according to a report published Oct. 16 in the New England Journal of Medicine.
The reforms changed the liability standard for emergency care from ordinary negligence to gross negligence, providing exceptionally broad protection to emergency physicians so they could feel safe from litigation if they stopped ordering unnecessary (and expensive) tests and stopped admitting patients who didn’t truly need inpatient care. The legal community in the three reform states – Texas, Georgia, and South Carolina – “characterizes the gross negligence standard as providing ‘virtual immunity’ to emergency physicians,” said Dr. Daniel A. Waxman of RAND Health and the University of California, Los Angeles, and his associates.
The researchers examined database information on 3,868,110 emergency department (ED) visits by Medicare patients to 1,166 hospitals across the 3 reform states, as well as to 10 neighboring control states, from 1997 through 2011. They found that the proportion of patients who underwent CT or MRI increased each year in both the reform states and the control states, and per-visit costs increased as well.
In a regression analysis, malpractice reform was not associated with a decline in CT or MRI use in any of the reform states. And in an analysis of ED costs, per-visit ED charges were not reduced after malpractice reform was enacted in either Texas or South Carolina; in Georgia, reforms were associated with a 3.6% reduction.
In addition, the rate of hospital admissions from the ED did not decrease in any of the reform states.
Data regarding the number of malpractice claims during the study period that were specifically related to ED care are not available. But the malpractice reforms in Texas were associated with a 60% reduction in malpractice claims and a 70% reduction in malpractice payments, the investigators noted.
Nevertheless, “we did not find evidence that these reforms decreased practice intensity, as measured by the rate of the use of advanced imaging, by the rate of hospital admission, or in two of three cases, by average charges. Although there was a small [3.6%] reduction in charges in one of the three sites, our results in aggregate suggest that these strongly protective laws caused little if any change in practice intensity among physicians caring for Medicare patients in emergency departments,” Dr. Waxman and his associates said (N. Engl. J. Med. 2014 October 16 [doi:10.1056/NEJMsa1313308]).
Many previous studies, including anonymous surveys of ED physicians, have reported that most practice defensive medicine; up to 30% of CT scans and 19% of MRIs were ordered “for defensive purposes” in one study, and as many as 70% of respondents in another study said they often ordered imaging studies or hospital admissions simply to protect themselves.
“Our findings suggest that physicians are less motivated by legal risk than they believe themselves to be. Although a practice culture of abundant caution clearly exists, it seems likely than aversion to legal risk exists in parallel with a more general risk aversion and with other behavioral, cultural, and economic motivations that might affect decision making.“When legal risk decreases, the ‘path of least resistance’ may still favor resource-intensive care. Our results suggest that malpractice reform may have less effect on costs than has been projected,” they noted.