The Effect of Tort Reform on the Care You Get in the Emergency Room

Over and over we hear that doctors are so afraid of being sued that they feel forced to practice "defensive medicine".  The implication is that doctors are so fearful they order unnecessary tests or unnecessary hospital admissions, thus raising health care costs for all of us.  And while many, including the Congressional Budget Office, have suggested that "some so-called defense medicine may be motivated less by liability concerns than by the income it generates for physicians", the notion that limits on physician liability are needed to protect the consumer from "defensive medicine" just won't go away.

Maybe a new study from RAND, which was published in the New England Journal of Medicine last month, will be cause to look more closely at this medical malpractice myth.

The study looks at the effect of laws that give special treatment to emergency room physicians at hospitals in three states -Texas, Georgia and South Carolina - and found that these laws did NOTHING to change costs or patient care.  About ten years ago, these three states changed their malpractice standard for emergency care to "willful and wanton negligence (in Texas) and "gross negligence (in Georgia and South Carolina).  As the authors write, these two standards are widely considered to be a very high bar for injured plaintiffs.  The study covered visits to acute-care hospital emergency departments from 1997 through 2011 in the target states and compared them to similar visits in neighboring control states.

The authors "did not find evidence that these reforms decreased practice intensity, as measured by the rate of the use of advanced imaging, by the rate of hospital admission, or in two of three cases, by average charges".  The authors allow that "physicians are less motivated by legal risk than they believe themselves to be".

So, maybe it is time to put the myth of so-called "defensive medicine" to rest and recognize that doctors have to be held to the same basic standards of responsibility that everyone else is.

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