One of the great things about publishing in The New England Journal of Medicine is that old friends sometimes reconnect. “Congratulations on your NEJM article!” wrote Paul Gennis, MD, who was chair of emergency medicine at Jacobi Hospital in New York when I was a resident. “You may not have gotten the answer you were hoping for, but the answer you got is probably accurate.”
That was really nice, but I actually wasn’t hoping for any particular answer. From the perspective of a researcher, this was the rare study in which a negative result was as interesting as a positive one would have been. As a member of the emergency medicine community, I wasn’t disappointed either, nor do I believe that others should be.
Our recent study addressed the following question: do emergency physicians change their practice when the threat of malpractice suit is reduced?1 In 2003, Texas changed its malpractice standard of care from “ordinary negligence” (ie, deviation from the “reasonableness” standard of customary practice) to “willful and wanton negligence.” In 2005, Georgia and South Carolina passed similar laws, changing their standard to “gross negligence.” This is a substantial change. To be found negligent under the revised standard, a plaintiff would need to prove that physicians had an “actual, subjective awareness” of “the likelihood of serious injury” but nevertheless proceeded with “conscious indifference” or “recklessness.” In other words, one would need to prove that physicians knew their actions or omissions would be more likely than not to cause serious harm, then carried them out anyway. Not impossible, but this is about as strong a reform as anybody has proposed.