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.

The Research

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.

Physicians strongly believe that “defensive practice” exists and, in fact, say that they practice defensively themselves. In one survey, 70 percent of emergency physicians polled said that they often practice defensively, meaning that they provide care or order tests they don’t believe patients need strictly because they fear lawsuits.² Advanced imaging (CT and MRI), hospital admission, and other diagnostic tests are the sort of items that are frequently called into question.

If fear of lawsuits is but one of a complex set of motivations for cautious behavior, then perhaps defensive medicine is really just medicine

Using Medicare claims, we evaluated the effect of the revised malpractice standard on the utilization of CT or MRI, hospital admission, and total per-visit ED charges. We used a quasi-experimental design, which compared the difference in each outcome in the reform states before and after the legislation was passed to the difference between the before and after periods in nearby states that didn’t pass reform (called a “difference in differences” design). The idea of a quasi-experiment is that assumptions are made explicit such that if you believe them, the results should be interpretable as if the patients had been randomly assigned to “exposure to the law” versus not. The key assumption here is that in comparing the pre-law and post-law time periods, the law itself is the only difference between reform and control states that would affect study outcomes.

The Results

The study results were surprising to some: we did not find evidence that changing the malpractice standard to gross negligence (or the equivalent) had any effect on practice. There was no discernable effect on rates of CT/MRI utilization or hospital admission. In two of three cases, total charges were not affected. In Georgia, reform was associated with a 3.4 percent reduction in average charges. These findings held true both in terms of the raw results and after adjusting for patient characteristics, hospital characteristics, and other factors.

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.

Dr. Waxman is senior natural scientist at the RAND Corporation in Santa Monica, California, and visiting associate professor of emergency medicine at the University of California, Los Angeles.