A comprehensive review from the Robert Wood Johnson Foundation’s Synthesis Project reports on the effectiveness of various malpractice reforms.
Many physician and malpractice insurers claim that malpractice crises, both past and present, have caused physicians to retire early, restrict the scope of their work to less risky ventures, or to relocate their practices to states with more favorable litigation climates. Much of the time, anecdotal evidence is used to support these claims. A well done, evidence-based review, discusses the empirical evidence available to address the issue of malpractice reform.
Evidence suggests the malpractice environment has only small or no effect on the overall supply of physicians. Some studies demonstrated a 3 percent increase in physician supply over three years. Others show up to a 12 percent increase in per capita physician supply in states with malpractice caps than those without caps. Unfortunately, most studies were not designed to detect differences between specialties and very few have directly explored the relationship with the malpractice environment and access to high-risk services such as trauma care, obstetric care, or emergency surgery.
Another important result cited by advocates is that malpractice reform will reduce the practice of “defensive medicine” – where physicians order additional tests or consultations that add little value to patient care but act as “assurance behaviors” to prevent or defense against potential lawsuits. The data reveal that 59 percent of physicians report ordering unnecessary medical tests, 52 percent made unnecessary referrals, and 33 percent prescribe unnecessary medications (all indicators of the impact of defensive medicine). States with malpractice reforms have seen five to nine percent slower growth in certain medical expenditures, possibly as a result of less defensive medicine.
Of the many types of tort reforms available, malpractice caps appear to be one of the most studied. Such caps do result in smaller award sizes to plaintiffs by about 20 to 30 percent. However, there is no evidence that the number of claims actually decreases.
As described above, caps do result in a modest improvement in physician supply. Additionally, malpractice caps constrain the annual growth of malpractice premiums. The approximate decrease in malpractice premium growth is about 6 to 13 percent in states with malpractice caps compared to states without them. An important caveat is that such caps have adverse affects on the most severely injured plaintiffs without reducing the rate of medical error or adverse events. Yet, the current tort system has very little deterrent effect on negligent physicians.
The Synthesis report also describes several alternative reform proposals which are worth consideration. Among these are the following:
- schedules of damages – grouping injuries into certain categories and standardizing the size of compensation for similar injuries while assuring more consistency in the scale of awards to the magnitude of injury (and not the skill of the lawyer),
- patient safety improvement – fostering patient safety initiatives to reduce the volume of medical errors and therefore patient injuries,
- early disclosure programs - allowing providers to compensate patients at the time of injury in exchange for avoiding future lawsuits,
- administrative compensation – removing the litigation process from the court system and allowing health care providers to decide awards for patients who suffer injury.
This Synthesis Project report represents some of the best evidence available on the issue of malpractice reform, an issue orphaned from the health care reform debate until President Obama spoke on it during his recent speech to Congress. Malpractice reform certainly can improve conditions for physicians burdened by the high cost of premiums. However, the issues of justice – compensating injured patients regardless of negligence – and fairness – not suing competent physicians who care for disgruntled patients – require creative solutions. Policy makers could look to the federal vaccine injury program for inspiration about how to construct a better system for patient safety.
Cedric K. Dark, MD, MPH