A RAND study finds no evidence that tort reform laws are reducing the use of medically unnecessary defensive procedures and services, such as high-cost advanced imaging.
Laws in three states that raised the legal threshold for malpractice in emergency settings have done little to change the costly practice of "defensive medicine," a RAND Corp. study shows.
A decade ago Texas, Georgia and South Carolina raised the civil malpractice standard used in emergency care to gross negligence. Lawmakers in those states believed that the higher standard would check the growth of malpractice lawsuits, and thus reduce the perceived need for expensive but medically unnecessary defensive procedures and services, such as the overuse of high-cost advanced imaging equipment.
The study, published this month in The New England Journal of Medicine, found no evidence that the laws are working as intended.
"Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates," the study found.
The RAND study used a random sample of Medicare fee-for-service emergency department visits by 3.8 million beneficiaries to 1,166 hospital EDs in the three reform states and in neighboring "control" states between 1997 and 2011.
Researchers compared the outcomes before and after the reforms took effect in both the reform and control states. Specifically, the study focused on the use of advanced imaging studies (CT and MRI scans), in-patient numbers after ED visits, and total charges for the visit.
Even with myriad controls factored in, such as patient characteristics and "temporal trends," the study found "no policy-attributable reduction in the intensity of care."
"We found no reduction in the rates of CT or MRI utilization or hospital admission in any of the three reform states and no reduction in charges in Texas or South Carolina. In Georgia, reform was associated with a 3.6% reduction in per-visit emergency department charges," the study's authors wrote.
Daniel A. Waxman, MD, an emergency physician, the study's lead author, and a researcher at RAND, spoke the findings in a recent interview. The following is an edited transcript.
HLM: Were you surprised by the findings?
Waxman: I wasn't particularly surprised. Some of my colleagues might be, but I went into this with an open mind. There are a lot of things that are working parallel. Nobody likes to be sued, obviously. We want to avoid that. But we also don't want to make mistakes. We don't want to cause harm.
We don't want to say 'no' to patients if they want tests to be done. There are a whole lot of things working together. If you ask doctors what is going on, a lot of them will say 'I am practicing defensively. I'm worried about getting sued.' But that is a shortcut for all of this other stuff.
HLM: Is this "defensive medicine," or just "medicine?"
Waxman: The term "defensive medicine" is a loaded politicized term at this point, and it's kind of meaningless if it doesn't change when you take away the legal threats. To me, "defensive medicine" means the care you are delivering [is] for no other reason than to protect yourself from a lawsuit.
Strictly speaking, what is going on is probably not defensive medicine defined that way. Maybe it's just medicine as it is currently, given the incentives and disincentives and human nature. It's just what happens.
It's not entirely clear how much waste is going on, particularly in this emergency room. Clearly there is some, but you have to recognize that doctors do practice in a high-stress, high-stakes environment. They don't want to go too far the other way and make mistakes either.
HLM: Why did your study focus on emergency physicians?
Waxman: This is the only venue where such an extreme law has been widely applicable. One of the states also covered some obstetrics circumstances, but I didn't have the data because Medicare patients don't have obstetrical emergencies.
If you are going to see defensive practice anywhere I would expect to see it in the emergency room, because people are practicing with limited information. They don't know their patients, the doctors feel very vulnerable, and they have access to all sorts of expensive technology.
So the opportunity makes it much easier for me working my ER shift to make the quick decision that ultimately triggers a whole lot of spending.
HLM: Are you concerned that your research might be used to undermine malpractice protections?
Waxman: I don't want this to become politicized. There are arguments on both sides. There are lots of reasons that a state might choose to pass tort reform and you are dealing with this very narrow question.
If you are talking about curbing wasteful care, will tort reform do that? The answer seems to be no. But might there be other reasons why you'd want to change the system? Absolutely!
HLM: What can physicians learn from this study?
Waxman: First of all, it's important if you have a particular goal, which is getting people to use resources wisely. Then it's important to not get distracted by things that won't work—providing the reality check and saying 'no' this isn't going to do it. Therefore, we need to take a closer look at our own systems and behaviors and the systems of incentives and disincentives.
Right now in the system there is an imbalance in incentives for using resources wisely. If the cost of something is zero, then demand will be infinite.
Right now the cost to doctors of doing things is very low. Nobody faults you for doing more, but you will be faulted for not doing something. You don't want to go too far in the other direction, but you want some degree of balance and thoughts about how to get people thinking about the plusses and minuses of using their resources.
HLM: Have you gotten any feedback from ED colleagues?
Waxman: I just heard back from an old colleague of mine and he said: 'Congratulations on your NEJM articles. You may not have gotten the answer you were hoping for, but the answer you got is probably accurate.'
Generally speaking, doctors consider themselves to be scientists. We believe in looking at the evidence. I don't think there is much that is controversial about the methods or the data. It is what it is.
People understand that in the scientific study, if you know the answer before you do the study, you're doing something wrong. I was going to put it out whatever way it pointed.
HLM: What protections need to be in place for physicians?
Waxman: There are a whole bunch of arguments here that I probably shouldn't get into. Personally, as a doctor I like being protected. The legal system as I understand it operates in a very statistically barbaric way.
You take the smartest doctor in the world. He will have good days and bad days and sometimes get things wrong. Generally speaking, with the laws that are in place and the system in place it's kind of a crap shoot whether or not you get sued for something.
John Commins is the news editor for HealthLeaders.