There are a few other limitations that are discussed in the published paper, but assuming our study results are true, then how might one explain the apparent discrepancy between a belief among emergency physicians that they practice defensively and objective evidence that clinical choices don’t actually change when the threat of being sued is substantially diminished? The answer may be that decision-making is motivated by many factors that parallel one another. Of course, physicians fear being sued. However, we are also extraordinarily reluctant to take risks on behalf of our patients. Uncertainty is uncomfortable, and there is often a perception that uncertainty can be reduced by “doing more.” It seems likely that cautious choices labeled as defensive are often felt by physicians to be low yield rather than zero yield. So consider the question: if clinical decisions don’t change when the threat of being sued is substantially diminished, then is defensive medicine a useful construct at all? If fear of lawsuits is but one of a complex set of motivations for cautious behavior, then perhaps defensive medicine is really just medicine.

In addition, what should the emergency medicine community make of all of this? Well, if the answer is that emergency physicians make decisions based mostly on what we believe to be best for our patients rather than fear or self-interest, that doesn’t seem like such a bad message to me. There are other good reasons to advocate for tort reform without invoking arguments that paint physicians in a poor light and don’t appear to be true.

Consider that one reasonable interpretation of the study’s findings is that even when the threat of a medical malpractice lawsuit is substantially reduced, physicians are just as careful. We demonstrated that changing the malpractice standard to gross negligence did not cause emergency physicians to order fewer CT scans or admit fewer patients to the hospital. While patient outcomes were not studied explicitly, the findings suggest that the malpractice standard can be changed to gross negligence and that emergency physicians are unlikely to become careless or cavalier as a result.

There is ample evidence that, using ordinary negligence (reasonableness or customary practice) as the malpractice standard, the tort system does a poor job of distinguishing between good physicians and those who are incompetent or careless. Setting the standard to gross negligence may be one way to treat physicians more fairly. However, doing so is unlikely to save money by changing clinical decisions, despite being the right thing to do.

References

1. Waxman DA, Greenberg MD, Ridgely MS, et al. The effect of malpractice reform on emergency department care. N Engl J Med. 2014;371:1518-25.
2. Studdert DM, Mello MM, Sage WM, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293:2609-17.