Medical malpractice reform doesn’t always stop defensive medicine, study says. What will in spine?

Practice Management


Medical malpractice rates and tort reform have been a huge factor contributing to high healthcare costs.


Tort reform was not addressed at a national level as part of healthcare reform, and many physicians are advocating for reform at the state level, under the pretense that it would lower healthcare costs.


A study published in 2012 shows around 96 percent of orthopedic surgeons practice defensive medicine by ordering imaging, laboratory tests or hospital admissions mainly to avoid possible malpractice liability. Around 24 percent of all tests ordered were for defensive reasons, with the average cost of defensive medicine per surgeon respondent being around $100,000 per year annually.


The national cost of defensive medicine in orthopedic surgery was $2 billion annually. Some suggest tort reform would create huge savings.


However, a new study from RAND corporation suggests it might not be. Researchers examined emergency room physicians in Georgia, Texas and South Carolina — three states that raised the standard to gross negligence for proving malpractice in the emergency department several years ago. Plaintiffs must now prove physicians consciously disregarded reasonable care and knew their actions would result in serious patient injury.


Specifically, the study looked at how physicians ordered advanced imaging, which is a huge part of defensive medicine in orthopedic and spine surgery. The researchers found medical malpractice reform laws didn't impact the physicians' advanced imaging use or the hospitalization rate following emergency visits in those three states.


Additional findings include:


  • No charge reduction as a result of malpractice reform in Texas or South Carolina.
  • Average ED charges dropped 3.6 percent in Georgia since 2005, when the law as adopted.
  • Physicians did not decrease imaging use.


"The study suggests that even when the risk of being sued for malpractice decreases, the path of least resistance still may favor resource-intensive care, at least in hospital emergency departments," said Daniel Waxman, the study's lead author and researcher at RAND.


Would the same hold true for orthopedic and spine specialists? Would tort reform work for these specialists?


It's possible, but it would likely take a culture change for many surgeons to rely less on imaging tests and more on standardized protocols proven to safely diagnose patients. Surgeons strive to provide the best patient care possible and deliver appropriate diagnoses and treatment. Experience can help surgeons become confident in their diagnoses without ordering additional imaging tests, but many may still order tests to provide what they would consider "best care."


Improved communication between specialists can also eliminate wasteful imaging tests. When patients go to different physicians for multiple opinions on their case, or are sent from one specialist to the next for different treatment, physicians may re-order tests that are exactly the same as tests the patient already underwent.


Finally, appropriate patient expectations and good patient experience can make a difference. Many surgeons have found patients who have a clear understanding of how they'll feel post-surgery and what to expect during recovery have a better experience than patients with too-high expectations. Happy patients are less likely to sue, according to a Family Practice Management report. Studies show surgeons who have been sued are more likely to practice defensive medicine, so if fewer patients are suing, there could be fewer "unnecessary" tests.


In June 2013, the Center for American Progress released a report: "Reducing the Cost of Defensive Medicine." The report suggests a "safe harbor" for medical malpractice litigation for physicians who:


  • Document adhering to evidence-based clinical practice guidelines
  • Use qualified health information technology systems
  • Employ clinical decision-support systems that incorporate guidelines to assist with patient diagnosis and treatment options


In Oregon, more than 70 percent of healthcare providers felt the safe harbor would reduce defensive medicine.


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