A study released last week indicated that the amount of diagnostic testing ordered by any particular doctor is related to their individual perceived risk of a medical malpractice suit being filed against them, not the amount of the suit, according to an article by the Center for Studying Health System Change. According to the center, this study suggests that tort reforms that cap damages – like those in California and Texas and being contemplated in New York – do not change the way doctors practice medicine.

Part of the aim of medical malpractice reform has been to reduce the amount of “defensive medicine” doctors perform. The theory is that the less that can be lost in a lawsuit, the fewer doctors who will order unnecessary tests out of over-cautiousness. But this study contradicts that notion.

“Traditional malpractice liability reforms don’t appear to resolve the concerns that drive physicians to practice defensive medicine,” said Emily R. Carrier, M.D., an HSC senior researcher and coauthor of the study.

The study was meant to be innovative in the way it analyzed data for elderly Medicare patients who complained of new instances of chest pain, headache and lower back pain. The study compared the courses of action of physicians who claimed to be highly concerned with medical malpractice lawsuits and those less concerned. No relationship was found between the medical malpractice laws of the state the physician practices in and their propensity to practice defensive medicine. Regardless of what state they were from, the study found that the patients whose physicians reported higher levels of malpractice concern consistently received more services.

Patients with chest pain were more likely to be referred to the emergency department if their physician had a high or medium level of malpractice concern, according to the study. Likewise, patients with a headache were more likely to receive advanced imaging of the brain, such as a CT or MRI scan, if their physicians had high levels of malpractice concern.

The report stated that prior malpractice research focused on physician self-reports,  hypothetical patients and various measures of liability risk, including state-level malpractice insurance premiums and tort reforms. Those studies generated conflicting results.

“Dealing with defensive medicine, which not only increases costs but subjects patients to unnecessary care, may require reassuring physicians that medical injuries can be resolved in less adversarial and stressful ways while still protecting patients,” Carrier said.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer