Malpractice laws that favor doctors fail to cut health costs: study

NEW YORK (Reuters Health) - For decades, it’s been the conventional wisdom that U.S. healthcare costs are high because doctors order expensive tests to protect themselves from malpractice lawsuits, but new evidence says that assumption is wrong.

The study from the RAND Corporation found that in three states where the laws were rewritten to make it virtually impossible to sue a doctor for mistakes, the cost of care did not go down in hospital emergency departments.

“If your goal is cost savings, if you believe there is a lot of pure waste going on, then malpractice reform is a blind alley,” Dr. Daniel Waxman, chief author of the study, told Reuters Health by phone.

The idea that defensive medicine is responsible for higher health costs “has come up over and over and over again,” said Waxman, of Rand HEALTH in Santa Monica, California. “It distracts people from looking for other avenues” that might bring costs down more effectively.

A 2010 study even pegged the cost of needless care motivated by fear of malpractice lawsuits at $210 billion a year.

The new study in the New England Journal of Medicine looked at costs before and after Georgia, Texas and South Carolina changed their laws to only allow emergency department doctors to be sued for gross negligence, in which the doctor knows that a treatment will likely cause serious injury, yet does it anyway.

“People say the letter of that law is an almost-impossible threshold to meet,” although such decisions are ultimately left up to the courts, said Waxman, who is an emergency department physician.

The team’s analysis of more than 3.8 million Medicare records from 1,166 hospitals also included neighboring states where the standard of malpractice remained ordinary negligence, which is a failure to exercise reasonable care.

“If you ask physicians, ‘Do you practice defensively?’ They overwhelmingly say, ‘Yes we do.’ They say they order more CT scans and MRIs. They admit people to the hospital. That certainly is a long-standing belief among physicians and lay people at this point,” said Dr. Waxman.

But when the team examined emergency room bills and the likelihood that the patients would be admitted to the hospital or receive a CT or MRI scan, Waxman and his colleagues found no difference in nearly every measure before and after the three states changed their laws.

Only in Georgia did they see any shift - a 3.6 percent drop in the average emergency room charge compared to neighboring states after the Peach State revised its law in 2005.

“Although there was a small reduction in charges in one of the three states (Georgia), 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,” the researchers conclude in the report.

The new laws may not have changed how doctors practice, but in Texas the 2003 reforms cut the number of malpractice lawsuits by 60 percent and the total of malpractice payments by 70 percent.

“This certainly runs counter to most people’s expectation,” Waxman said. “Basically, there are a whole bunch of things going on. No doctor wants to be sued. But doctors also don’t want to make mistakes. They don’t want to cause harm. They don’t want to say no to patients. So everything favors doing more. There are reasons to be faulted for not doing more, and very little pushback if you don’t.”

“It’s easy to blame something that’s out of your control,” he said, “and the legal system is a convenient scapegoat.”

SOURCE: New England Journal of Medicine, online October 15, 2014.