Sensitivity to malpractice

Many argue that physicians that are more concerned about malpractice are also more likely to engage in defensive medicine. The argument extends that defensive medicine contributes to rising health care costs.  A recent article attempts to analyze this issue.  The authors link physicians’ responses regarding their levels of malpractice concern to their Medicare claims for patients they treated between 2007 and 2009. The authors used this linkage to examine whether physicians with high self-reported concerns of malpractice were more likely to order diagnostic imaging, other advanced testing, or refer their patients to the emergency department (ED) or the hospital for admission.

The authors looked at 3 common complaints: chest pain, headache, and back pain.  They hypothesized that for chest pain, malpractice-sensitive physicians would use more conventional and advanced imaging and would be more likely to have patients visit the ED or be admitted to the hospital.  The authors hypothesized that for headaches and back pain, malpractice-sensitive physicians would use more advanced imaging and ED referrals.

The sample included 1.9 million patients who received services from 3,469 physician surveys. State-level indicators of malpractice risk such as rate and amount of malpractice claims and state caps on malpractice damages were also considered.

Malpractice-sensitive physicians had a higher probability of referring patients with chest pain to the ED (3.4% vs. 2.5%). Malpractice-sensitive physicians also had a significantly higher probability of ordering advanced imaging for patients presenting with a chief complaint of headache (11.5% vs. 6.4%).  Malpractice-sensitive physicians had a higher probability of ordering conventional imaging for patients presenting with the chief complaint of back pain (29.0% vs. 17.6%) and also advanced imaging (6.1% vs. 4.1%). Physicians in states with medical liability damage caps were associated with greater use of services.

Commentary

The finding that physicians in states with malpractice liability caps spend more on health services is an interesting finding. Many who argue for tort reform claim that defensive medicine exists due to the high risk of malpractice and thus tort reform (i.e. damage caps) should lower health care costs. This article refutes that claim.

The associations between malpractice risk and the utilization of health care services was stronger when the measure was the physician’s perceived risk rather than state-level measures of liability risk.

There are two types of defensive medicine. Positive defensive medicine (or assurance behaviors) occurs when a physician orders additional tests, procedures, or has a low threshold for referring the patient to the ED, consulting specialists, and admitting them to a hospital. Negative defensive medicine (or avoidance behaviors) occurs when physicians avoid treating patients and or conditions that have high risk.  This study focused on positive defensive medicine behaviors.   Physicians with a higher level of concern about malpractice are more likely to practice positive defensive medicine; yet tort reform does not necessarily affect the practice of defensive medicine.

Carrier ER, et al. Health Affairs. 2013; 32 (8): 1383-1391.

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Regina A. Bailey, MD, JD, LLM