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Damage Caps No Cure for Physician Fear of Malpractice Suits

Health Affairs Study Suggests Physicians' Fears Likely Driven Less by Actual Risk and More by Perception that the Malpractice Tort Process is Unfair and Arbitrary

News Release
Sept. 7, 2010

Alwyn Cassil (202) 264-3484 or

WASHINGTON, DC—Even in states with economic damage caps in malpractice suits, physicians remain highly concerned about being sued, suggesting that many popular tort reform proposals may do little to deter the practice of defensive medicine that contributes to unnecessary health spending, according to a study by researchers at the Center for Studying Health System Change (HSC) in the September Health Affairs.

“Our results suggest that many popular tort reforms are only modestly associated with the level of physicians’ malpractice concern and their practice of defensive medicine. The results raise the possibility that physicians’ level of concern reflects a common tendency to overestimate the likelihood of ‘dread risks’—rare but devastating outcomes—not an accurate assessment of actual risk,” according to the article.

“Whether justified or not, physicians’ liability fears are a policy problem because defensive medicine raises health care costs and potentially subjects patients to unnecessary care,” said Emily R. Carrier, M.D., senior HSC researcher and coauthor of the study with James D. Reschovsky, Ph.D., senior HSC researcher; Michelle M. Mello, Ph.D., J.D., a professor at the Harvard School of Public Health; Ralph C. Mayrell, a former HSC health research assistant; and David Katz, M.D., an associate professor at the University of Iowa.

The authors point to recently funded demonstration projects to test new approaches to liability reform, including alternatives to litigation that emphasize early disclosure and settlement of claims through less adversarial processes, as a way to address physicians’ liability concerns more effectively.

The Health Affairs article, titled “Physicians’ Fears of Malpractice Lawsuits Are Not Assuaged By Tort Reform,” is based on findings from HSC’s 2008 Health Tracking Physician Survey, which is sponsored by the Robert Wood Johnson Foundation, which also funded the study. The survey includes responses from 4,720 physicians who provide at least 20 hours per week of direct patient care and had a 62 percent response rate.

The survey asked physicians to indicate how strongly they agreed with the following statements based on a five-point scale, ranging from “strongly disagree” to “strongly agree:” (1) I am concerned that I will be involved in a malpractice case sometime in the next ten years. (2) I feel pressured in my day-to-day practice by the threat of malpractice litigation. (3) I order some tests or consultations simply to avoid the appearance of malpractice. (4) Sometimes I ask for consultant opinions primarily to reduce my risk of getting sued. (5) Relying on clinical judgment rather than on technology to make a diagnosis is becoming risky because of the threat of malpractice suits.

Between 60 percent and 78 percent of all physicians agreed or strongly agreed with each of the five statements related to malpractice concerns. Physicians agreed most strongly with the statement that it is becoming increasingly risky to rely on clinical judgment rather than diagnostic testing, with 78 percent either agreeing or strongly agreeing.

To construct objective measures of malpractice risk at the state level, the study examined claims-based and premium-based measures of malpractice risk and state-level tort reforms, including caps on punitive damages, economic damages and noneconomic damages; and abolishment of joint-and-several liability, which limits each defendant’s liability to his or her personal role in the negligence.

The study did find that physicians in states that had established caps on total damages or abolished joint-and-several liability had modestly lower levels of malpractice concern. However, the presence of other types of tort reforms in the state, including caps on noneconomic damages, did not significantly reduce the levels of physician concern, relative to states without such reforms.

The article states, “It is likely that physicians’ assessment of their risk is driven less by the true risk of malpractice claims or the cost of malpractice insurance, and more by the perceived arbitrary, unfair, and adversarial aspects of the malpractice tort process—which most traditional state reforms do not address.”

Along with experiments to identify more effective ways to resolve malpractice claims as a way to address physicians’ concerns, the article points out that certain kinds of payment reform may provide incentives for physicians to stop ordering widely used tests and procedures of questionable value.

“Although alterations in reimbursement policy could prove a powerful lever for reducing overuse of care, the threat of lawsuits will remain a dread risk for physicians—and will undermine reimbursement reforms—until comprehensive liability reform is adopted. Reimbursement reform and liability reform therefore should be seen as complementary strategies—each indispensable—for reducing overuse of health services and encouraging physicians to adhere to recommendations for evidence-based care,” the article concludes.

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The Center for Studying Health System Change is a nonpartisan policy research organization committed to providing objective and timely research on the nation’s changing health system to help inform policy makers and contribute to better health care policy. HSC, based in Washington, D.C., is funded in part by the Robert Wood Johnson Foundation and is affiliated with Mathematica Policy Research.




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