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Protecting the Good Doctors

Three states with malpractice reform lower the rate of lawsuits from emergency care.

A new study published in the New England Journal of Medicine examined whether protecting doctors from could curb unnecessary health care costs, particularly in the emergency department where patients are high-risk and information about patients is often incomplete. This environment, the researchers contend, lends itself to defensive practice and increased costs.

Source: JD Hancock (Flickr/CC)

Source: JD Hancock (Flickr/CC)

Texas, Georgia, and South Carolina enacted laws in the last decade that changed the legal malpractice standard to gross negligence for emergency care. This means that a doctor could not be found liable for a bad outcome unless they displayed carelessness toward the patient and total disregard for potential harm. With this level of protection, doctors could order tests and imaging studies they thought were necessary and avoid spending health care dollars on interventions that yield little diagnostic or treatment benefit.

The study compared these three states to neighboring control states that did not have rigorous malpractice standards. They analyzed patient outcomes, changes in CT and MRI scan use, per-visit charges, and hospital admission rates.

Did gross negligence standards reduce costs? The researchers found no reduction in the intensity of care in the states that were studied, concluding that malpractice reform had little effect on the intensity of practice (imaging, hospital admission and hospital charges).

Nevertheless, I wouldn’t throw out malpractice reforms just yet. The authors fail to note that the purpose of medical liability reform was not only to reduce defensive medicine, but also reduce the cost of medical liability insurance, which seems to have occurred. In Texas, liability premiums have risen more slowly than the rest of the country and the rate of lawsuits has declined (60% fewer malpractice claims filed). I believe these are that not only affect the field of emergency medicine, but have beneficial effects for all medical practice.

commentary by Regina Bailey, MD, JD, LLM


Background: Many believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending. Emergency physicians practice in an information-poor, resource-rich environment that may lend itself to costly defensive practice. Three states, Texas (in 2003), Georgia (in 2005), and South Carolina (in 2005), enacted legislation that changed the malpractice standard for emergency care to gross negligence. We investigated whether these substantial reforms changed practice. Methods: Using a 5% random sample of Medicare fee-for-service beneficiaries, we identified all emergency department visits to hospitals in the three reform states and in neighboring (control) states from 1997 through 2011. Using a quasi-experimental design, we compared patient-level outcomes, before and after legislation, in reform states and control states. We controlled for characteristics of the patients, time-in-variant hospital characteristics, and temporal trends. Outcomes were policy attributable changes in the use of computed tomography (CT) or magnetic resonance imaging (MRI), per-visit emergency department charges, and the rate of hospital admissions. Results: For eight of the nine state–outcome combinations tested, no policy-attributable reduction in the intensity of care was detected. We found no reduction in the rates of CT or MRI utilization or hospital admission in any of the three reform states and no reduction in charges in Texas or South Carolina. In Georgia, reform was associated with a 3.6% reduction (95% confidence interval, 0.9 to 6.2) in per-visit emergency department charges. Conclusions: Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates.  PMID: 25317871

Waxman, Daniel A. et al. NEJM. 2014; 371: 1518-1525.

Regina Bailey, MD, JD, LLM
About Regina Bailey, MD, JD, LLM

Dr. Bailey is currently Medical Director of a freestanding Emergency Department in Houston, TX and also Assistant Clinical Professor of Medicine at UTMB Galveston. She has contributed to Policy Prescriptions® since 2013. Contact: Website | Facebook | More Posts