Fear of malpractice suits prompts more tests, emergency department referrals

Medicare patients received more diagnostic tests and referrals to the emergency department when treated by physicians who worry more about malpractice liability, regardless of whether states have adopted common malpractice tort reforms, a study found.

Funded by the National Institute for Health Care Reform, the study is based on a national sample of elderly Medicare fee-for-service beneficiaries with new complaints of chest pain, headache and lower back pain who within one week received diagnostic imaging services or other tests, were referred to the emergency department, or were admitted to a hospital. The data were linked through the Center for Studying Health System Change 2008 Health Tracking Physician Survey of nearly 30,000 Medicare Part A and B claims for one of those three complaints from 2007 to 2009.

Researchers assessed physicians' fears of malpractice lawsuits via five questions regarding their propensity to engage in defensive medicine, each ranked on a five-point Likert scale that ranged from “strongly agree” to “strongly disagree,” which were then summed for a total score and classified into terciles. Next, researchers compared their findings with a state-by-state malpractice risk index, defined as malpractice claims per 1,000 physicians times the average dollar amount of the award, as well as whether the state capped malpractice awards.

Study results were published in the August Health Affairs.

Office-based physicians who reported higher levels of concern about malpractice had higher rates of use of diagnostic imaging for lower back pain and headache, were more likely to order advanced imaging for patients with headache and lower back pain and conventional imaging for patients with chest pain and lower back pain, and were less likely to use stress testing for patients with chest pain and more likely to refer them to the emergency department.

However, when researchers compared physicians' level of malpractice concern with objective state-level indicators of malpractice liability risk, such as whether a state caps economic damages, they found no consistent relationships. Models that tested the presence of caps showed that they were associated with greater use of some services, which researchers attributed to reverse causality: More concerns about malpractice and defensive medicine might make a state more likely to adopt a damage cap.

The researchers wrote, “Malpractice reform alone is unlikely to solve the problem of overuse of health care services, which has multiple drivers. Fee-for-service reimbursement provides a financial incentive to order more services. Patients' demands for services may be hard to resist. Finally, physicians may be averse to the risk of missing something and harming the patient—not just the risk of being sued when such harm occurs. Human beings' known tendency to overestimate the probability of rare but serious risks reinforces physicians' tendency to take excessive precautions.”