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Physicians’ Fears Of Malpractice Lawsuits Are Not Assuaged By Tort Reforms

Physicians’ Fears Of Malpractice Lawsuits Are Not Assuaged By Tort Reforms

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Analysts disagree on the cost and scope of defensive medicine.1 Physician report that they engage in defensive practices frequently out of fear of being sued. Physicians with high malpractice premiums have less career satisfaction and are more likely to order diagnostic testing or hospitalize low-risk patients in certain settings.5 Federal reform has raised concerns about defense medicine for two reasons. The first is that health reform has created new stressors for health care providers. They are now requesting liability reform in return for support for other reform measures. Liability risk, which can lead to defensive medicine, is a major obstacle to the ambition of health reform to move physicians towards more cost-effective care. 

This article reports findings regarding perceptions of malpractice risk among physicians. Our objective was to evaluate physician concerns about malpractice and examine the associations between concerns and characteristics of physicians. Finally, we compared these concerns with objective measures of malpractice risk including state laws on medical malpractice reform. Individual physicians' concerns over their malpractice risk are widespread, they vary between specialties in ways that may reflect underlying malpractice risks, and they reflect state-specific objective measures of malpractice risk to a limited extent. Our findings suggest that the popularity of tort reforms is only slightly related to physicians' malpractice concerns and their practice in defensive medicine. These results suggest that physicians may be concerned about the possibility of overestimating the risk of "dread"--rare, but potentially fatal outcomes--and not accurately assessing the actual risk. 

The 2008 Center for Studying Health System Change's (HSC) Health Tracking Physician Survey provided data on physicians. This survey is a national representative mail survey of U.S. doctors who provide at most twenty hours of direct patient care per workweek. Robert Wood Johnson Foundation sponsored the survey. The American Medical Association (AMA), Physician Masterfile was used to select the sample of doctors. It included both hospital-based and active nonfederal physicians. Radiologists, anesthesiologists, and pathologists were not included. 

Secondary data from the National Practitioner Data Bank was used to assess the relationship between malpractice concerns, state-level data on malpractice risks, and malpractice premiums. This data is available on the Kaiser Family Foundation's Web site. Market share data from the National Association of Insurance Commissioners was used to weight the Malpractice Premium data for obstetrics, gynecology, and general surgery. Ronen Avraham created a database of state tort law reforms that included information on malpractice litigation. Each reform was taken into consideration separately. 

s This study is limited. Our state-level measure of malpractice insurance premiums does not take into account the premium burden experienced individually by respondents. We also don't have information about individual doctors' knowledge of individual tort reforms that are intended to limit malpractice claims. There is no way to measure the number of claims that were closed but didn't result in payment. This could cause professional and financial distress for physicians. Performing a statistical adjustment used in previous studies to approximate the number of closed claims did not reveal new significant associations with tort reforms.2 Our sample population excludes radiologists and anesthesiologists--specialists known to have high levels of concern about malpractice. Our survey measures are not intended to be used as a measure of defensive medical practices. Our objective was to assess physicians' fear and concern about liability. This subjective construct is not what we were trying to do. 


A nationally representative study of doctors found that physicians were concerned about malpractice litigation. This included physicians from a variety of specialties, practice settings, as well as geographic areas. The greatest concern was expressed by physicians in specialty areas that are most at risk of costly malpractice claims. Statistically significant was the relationship between physician malpractice concern and objective measures of state liability, such as malpractice premium levels or the risk of a paid malpractice case. These associations were very small in magnitude. Our results show that the greatest difference in physician concern between tertiles (or thirds) of malpractice risk was 5.4 on a 100 point scale. This is approximately equivalent to the difference in concern observed between an average general physician and an average primary caregiver, or one-third the difference between an average emergency physician and an average primary caregiver. Other measures such as the number and average amount of claims paid each claim were not comparable to those for physicians at lower risk. 

Concern scores only 2.9 and 2.5 percent respectively. Physicians who were licensed to practice in states with caps on total damages and/or abolished joint-and several liabilities had a lower level of malpractice concern. The presence of other tort reforms in the state (including caps on noneconomic damage) did not reduce physician concern significantly compared to states that had such reforms. Malpractice as a 'Dread risk' Our results show that even though malpractice insurance was relatively stable, there is still a high level of concern. The perceived danger of being sued was more important than the difficulties in securing insurance. The two could be connected in the minds of many doctors, especially in states where underwriting practices have changed during the crisis. This makes it more difficult for people who have been sued to renew their insurance policies. However, despite these difficulties, physicians' reports of their liability concerns are not necessarily indicative of the actual risk of a malpractice case. 

Physicians may not have access to information that provides accurate information about their risk of being sued, or how they compare to other physicians in their field. Medical professional societies may be promoting tort reform by giving the impression that all or most states and specialties are in serious trouble and need additional legal protection. 

Another explanation could be that physicians exaggerate the risk of being sued and use it to justify high-spending behavior, which is rewarded with fee-for-service payments. We found that even physicians in HMOs with staff models were concerned, even though they have less incentive to use too many services. Some defensive medical practices, like referring patients to consultations, don't generate reimbursement.