Study: Tort Reform May Not Curb Defensive Medicine or Fear of Suits

Physicians’ fears of being sued for malpractice are out of proportion to their actual risk of being sued, according to a recent study.

The study by a University of Iowa researcher and colleagues also suggests that tort reform legislation aimed at controlling malpractice costs has not lessened physician concerns about malpractice lawsuits, and may not be effective in altering defensive medicine practices — like ordering unnecessary lab tests — that can drive up the cost of health care.

“We found that both generalist and specialist physicians fear being sued for malpractice even in states where their risk of being sued is relatively low,” said senior study author David Katz, M.D., associate professor of medicine with University of Iowa Health Care. “One likely explanation is that physicians’ concerns about malpractice are driven more by their perception that the malpractice tort process is unfair and arbitrary and less by their actual risk of getting sued.”

The research team surveyed a nationally representative sample of physicians and found high levels of concern about being sued for malpractice among all physicians regardless of specialty or geographic location.

Physicians in the highest-risk states, however, expressed only modestly higher levels of concern than physician in low-risk states (4.3 points on a 100-point scale). This small difference was particularly surprising given that physicians in the least risky states have less than one-third of the malpractice risk as those in the most risky states. The researchers used objective measures of risk, such as malpractice premium rates and risk of incurring a paid malpractice claim, to calculate physicians’ actual malpractice risk.

“The high levels of malpractice concern, even among physicians in relatively low-risk environments, is striking,” Katz said. “One possible explanation is that most physicians do not have the information to accurately access their actual risk of being sued.”

Many tort reform efforts are driven by the idea that fear of being sued leads physicians to practice defensive medicine, which raises health care costs.

The study showed that several types of state tort reforms, such as caps on total damages, are individually associated with significantly reduced malpractice concerns, but the results were mixed.

Overall, the study suggests that current tort reform efforts aimed at reducing malpractice risk would be relatively ineffective in alleviating physicians’ concern about lawsuits and therefore may not alter defensive medicine practices.

Katz, who also is a research investigator in the Center for Research in the Implementation of Innovative Strategies in Practice at the Iowa City Veterans Affairs Medical Center, conducted the study with colleagues from the Center for Studying Health System Change in Washington, D.C., and Harvard School of Public Health.

In addition to Katz, the study team included Emily Carrier, James Reschovsky, Michelle Mello and Ralph Mayrell. The study was funded in part by the Robert Wood Johnson Foundation.

The findings were published in the September issue of the journal Health Affairs.