Fear of Lawsuits Drives Costs in ED, Says ACEP

More than half of emergency physicians in a recent poll say they practice defensive medicine to protect themselves from lawsuits.

The survey from the American College of Emergency Physicians found that 44% of nearly 1,800 emergency physicians say the fear of lawsuits is the biggest challenge to cutting costs in the emergency department. And 53% say that fear of litigation drives many of the tests they order. 

“Medical liability reform is essential to meaningful healthcare reform,” ACEP President Sandra Schneider, MD, said in a media release. “Without it, healthcare costs will continue to rise. Estimates on the costs of defensive medicine range from $60 billion to $151 billion per year. That dwarfs total expenditures on emergency care, which at $47.3 billion in 2008 represented just 2% of all healthcare spending.”

The poll also found that 68% of respondents said there has been no improvement in the number of medical specialists willing to take ED call since healthcare reform legislation passed last year. Many specialists cite the fear of being sued as one of the top reasons.

“Texas offers us a great example of the benefits of tort reform,” Schneider said. “After the state passed medical liability reform, 33 rural counties have added at least one emergency physician, including 24 counties that previously had none. Nationwide, according to the Agency for Healthcare Quality and Research, states with caps on non-economic damages saw a 3% to 4% decrease in healthcare costs.” Schneider said patient safety has improved in Texas since liability reform.

“Texas has achieved the second biggest improvement for emergency department wait times among all 50 states, according to a 2010 report from Press Ganey,” Schneider said. “Despite growing demand and the highest uninsured population in the nation, Texas improved access to medical care for emergency patients by enacting tort reform.”

ACEP supports two liability reform bills in the U.S. House of Representatives, H.R. 5 and H.R. 157. H.R. 157 would extend the same legal protection that physicians in the Public Health Service have to physicians who care for patients in the ED. Emergency physicians are required by federal law to treat all patients, and often treat time-sensitive patients without any knowledge of their medical history. H.R. 5 recently cleared through the House Energy and Commerce Committee and will come up for a floor vote soon.

Schneider also raised an issue related to the development of quality measures for medical care, some of which are designed to discourage the overuse of testing.

“The federal government is making great efforts to implement quality measures, but without federal medical liability reform, physicians following the guidelines developed by the Centers for Medicare & Medicaid Services (CMS) may open themselves to litigation,” Schneider said. “For example, under new CMS guidelines, the use of head CTs is being discouraged. Fewer head CTs will mean that physicians miss maybe 1% of serious head bleeds. So a small percentage of people with head bleeds will be missed, and there are no liability protections for those physicians who may be sued as a result.”

The second largest challenge to cutting costs reported by poll respondents (19.8 %) is the increase in uninsured patients, because no physicians will treat them.

ACEP conducted the poll in early March. E-mails were sent to 20,687 emergency physicians, and 1,768 responded. The survey has a theoretical sampling error range of plus/minus 2.23. To download a copy of the complete ACEP poll results, click here.