Malpractice Reform and Emergency Department Care

Published - Written by Chana Sacks

A 67-year-old woman presents to your Emergency Department (ED) with a headache for the last 48 hours.  She describes herself as “a headachy” person since her late teens, but this one is particularly bad, throbbing, associated with nausea and photophobia.  She is afebrile without neck stiffness. Your thorough neurologic exam reveals no focal deficits.

You form your differential diagnosis and debate your next step: do you send the patient home with a diagnosis of a migraine, a prescription, and a plan for close follow-up with her primary care physician? Do you pursue imaging with a CT scan or an MRI to rule out a more insidious cause of her symptoms?

You run the case – and your nagging uncertainty – by one of your colleagues.  “Just get the scan,” she advises.  She then tells you that one time a doctor she knows didn’t get an MRI on a patient with a headache who turned out to have a brain tumor.  He is still embroiled in that lawsuit, she says, her voice trailing off as she walks away.

You have heard many physicians give voice to this line of thinking: yes, we may be ordering some unnecessary tests, but we practice medicine in an exceptionally litigious U.S. society. We have to protect ourselves.

In a Special Article published in the NEJM this week, Waxman and colleagues examine whether this fear of malpractice lawsuits truly motivates physicians’ practices, resulting in extra tests and added costs.   Perhaps surprisingly, they conclude that it does not.

The authors used the real-life experiment provided by Georgia, Texas, and South Carolina to investigate this question. Between 2003 and 2005, these states each passed legislation changing the malpractice standard for emergency care to gross negligence, which the authors note is “widely considered to be a very high bar for plaintiffs.”

The investigators assessed the effect of this legislation that largely eliminated the threat of lawsuits by examining three outcomes: use of CT or MRI, admission to the hospital, and total ED charges per visit. In prior survey studies, emergency physicians had identified ordering CT/MRI imaging and deciding to admit a patient to the hospital as common, costly “defensive maneuvers” often motivated by fear of malpractice lawsuits.  Using a random sample of Medicare claims from 1997-2011, they examined the outcomes in the three states that passed the malpractice reforms – before and after the change in legislation – and in ten control states.

Their findings: in none of the three states was malpractice reform associated with a reduction in CT/MRI ordering or in the rates of hospital admission. In Texas and South Carolina, there was also no reduction in per-visit ED charges.  In Georgia, malpractice reform was associated with a 3.6% reduction in charges [95% CI -6.2% to -0.9% p = 0.010].   The authors conclude, “these strongly protective laws caused little (if any) change in practice intensity among physicians caring for Medicare patients in emergency departments.”

NEJM Deputy Editor Mary Beth Hamel commented, “The authors’ rigorous analyses suggest that legislation designed to reduce the risk of malpractice did not change emergency room clinicians’ decisions to order tests and admit patients to the hospital. It is not clear if the negative findings reflect the misperception that ‘defensive medicine’ is a substantial driver of health care costs or the intractability of the problem.”

To your patient and her headache – do you order an imaging test? Maybe. This study offers no guidance about when and whether ordering an MRI or choosing to admit a patient to the hospital is medically appropriate. However, if the authors’ conclusions are correct, that feeling driving you to pursue the additional test is probably not your fear of a lawsuit.

What is that force, then, that pushes physicians to order expensive tests? Perhaps it’s the uncomfortable uncertainty inherent in medicine. Maybe insecurity about the sensitivity of the physical exam. Or the fear of missing a rare or life-threatening diagnosis. Almost certainly, it is an amalgam of factors.  However, this study suggests that it is a force that malpractice reform – at least as enacted in these states – is unlikely to ameliorate.

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