Liability fears drive doctors to defensive medicine, study reaffirms

A new report finds that the perception of lawsuit risk determines how often physicians order testing for patients and send them to emergency departments.

By — Posted Aug. 21, 2013

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Whether a physician practices defensive medicine may depend more on a doctor’s fear of being sued than the level of noneconomic damages caps and insurance premiums in that physician’s state, a study says.

Researchers at the Center for Studying Health System Change, a policy research organization, examined responses from 3,469 physicians to questions about how concerned they were about medical liability lawsuits in the center’s 2008 Health Tracking Physician Survey. Then they compared the physicians’ concerns with actual Medicare claims for more than 1.9 million patients who came to their offices with headaches, chest pain or lower back pain from 2007 to 2009.

The more worried a physician was about litigation, they found, the more likely he or she was to order more tests or advanced imaging, refer patients to an emergency department or admit them to a hospital.

For instance, for patients with a headache, the likelihood that a physician with a high level of concern about a lawsuit would order advanced imaging was 11.5% compared with 6.4% for a physician with low concern. Patients with chest pain were more likely to be referred to the ED, rather than having an outpatient stress test, if their physicians had a high or medium level of liability concern.

Researchers did not find the same correlation when they compared ordering data with the level of tort reform in the state in which the doctor practiced. The study was published in the August issue of Health Affairs (link).

More comprehensive tort reform

The findings suggest that more effective reforms are needed to address underlying physician fears rather than just noneconomic damages caps, said lead study author Emily Carrier, MD, an emergency physician and senior health researcher at the center. She said some of those fears, such as out-of-pocket risks, may be unfounded or exaggerated, so education is important.

“It’s very rare for a physician to have to pay out personally beyond what their insurance will cover in a malpractice suit,” she said. “Most cases don’t go to trial, and among the cases that do go to trial, the physician is likely to win.”

Some doctors are unaware of these facts, Dr. Carrier said. In some cases they know but still have concerns. “Just like you know when you’re getting on a plane that the odds of you dying in a plane crash are pretty low, people are still afraid of flying,” she said.

Dr. Carrier and her colleagues say their data support the need for more comprehensive reforms. The American Medical Association is among the organizations that support tort reforms. Defensive medicine is costly to the health care system, research shows.

“The legal system’s culture of unrestrained blame and punishment must be reformed because it breeds fear and mistrust that suppresses information,” AMA Immediate Past President Jeremy A. Lazarus, MD, said in a statement. “The extra precautionary measures that physicians take to avoid being sued take a heavy financial toll on our health care system.”

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