Doctors' Legal Woes Changing U.S. Health Care

Malpractice worries lead to 'defensive medicine,' studies find

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HealthDay Reporter

TUESDAY, May 31, 2005 (HealthDay News) -- The current legal climate surrounding medical malpractice in the United States is affecting delivery of health care in several ways.

More than 90 percent of doctors who responded to a recent survey confessed to practicing "defensive" medicine, such as ordering unnecessary tests, in an effort to avoid malpractice suits.

In addition, states that have enacted reforms to their malpractice systems have experienced a jump in the number of physicians practicing there.

Both studies appear in the June 1 issue of the Journal of the American Medical Association and were supported by the independent, nonprofit Project on Medical Liability in Pennsylvania, funded by the Pew Charitable Trusts.

"We are finally getting empirical information on the way in which the medical liability system affects patients and medical care," said Dr. Bill Sage, principal investigator for the Project on Medical Liability and a professor at Columbia Law School in New York City. "I believe this brings the public policy debate into the second and more productive phase of the debate: how do we use facts to make health care better?"

Two more studies, appearing in the current issue of Health Affairs, found that large medical malpractice judgment awards are not driving increases in doctors' insurance premiums and that physicians are more likely to practice in states with caps on malpractice awards.

The authors of the JAMA defensive medicine study surveyed 824 Pennsylvania physicians in six specialties with a high risk of malpractice claims: emergency medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology and radiology.

At the time of the study (2003), Pennsylvania insurance premiums were rising dramatically and several liability insurers had left the market. The cost of a standard policy for general surgeons at the largest insurer had risen from $33,684 in 2000 to $72,518 in 2003.

Virtually all (93 percent) of the doctors surveyed reported having practiced defensive medicine including "assurance behavior" such as ordering tests, performing diagnostic procedures and referring patients for consultation.

Almost half (43 percent) of those listing their most recent defensive act said they had ordered clinically unnecessary diagnostic imaging. A similar number (42 percent) said they had restricted their practice in the previous three years, including eliminating trauma surgery and avoiding patients with complicated medical problems or who appeared to be litigious.

Not only do some of these trends within the profession pose risks to patients, they also threaten to become the legal standard of care, the authors noted.

The second JAMA study tracked the number of physicians actively practicing in each state from 1985 to 2001 with state data listing changes in tort law and demographics.

States that had adopted "direct" malpractice reforms -- changes that reduced the size of awards -- experienced an average 3.3 percent increase in physicians working in the state within three years of the reforms being implemented, the study found.

Other studies had somewhat surprising results. One study in Health Affairs found that, contrary to popular perception, between 1991 and 2003 the number of malpractice payments from trials and settlements remained stable. Average payment size grew about 4 percent per year, in line with increasing medical costs.

However, insurance premiums for physicians did not remain stable. In 2002, for example, average malpractice premiums for internists, general surgeons and obstetricians rose 20 to 25 percent while some specialists saw increases of 75 percent in one year, the study found.

Finally, in keeping with one of the JAMA studies, a second Health Affairs report found that states that capped nonmonetary awards for pain-and-suffering and punitive damages also ended up attracting more doctors.

"These studies emphasize the importance of tort reform in getting the medical malpractice system to function better for both doctors and patients," said Dan Kessler, lead author of the second JAMA article and professor of economics, law and policy at Stanford University's Graduate School of Business. "Direct reforms like caps on damages lead to a growth in the number of physicians. Direct reforms reduce medical care costs without any adverse effects on health outcomes. That doesn't mean that there's not room for other kinds of reforms."

"These studies are really good reminders to bring the debate [about medical malpractice] back down to the doctor-patient level," Sage said. "We have a medical malpractice system that fails doctors and fails patients and we have to do something about it."

More information

The Project on Medical Liability in Pennsylvania has more on medical liability.

SOURCES: May 31, 2005, teleconference with William M. Sage, M.D., J.D., professor, Columbia Law School and Daniel P. Kessler, Ph.D., J.D., professor of economics, law and policy, Stanford University's Graduate School of Business and fellow, Hoover Institution; Journal of the American Medical Association, June 1, 2005; Health Affairs

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