Will malpractice reform prevent “defensive medicine”?

The Effect of Malpractice Reform on Emergency Department Care

By Daniel A. Waxman, M.D., Ph.D., Michael D. Greenberg, J.D., Ph.D., M. Susan Ridgely, J.D., Arthur L. Kellermann, M.D., M.P.H., and Paul Heaton, Ph.D.
The New England Journal of Medicine, October 16, 2014

Emergency department care has been a particular focus of a new generation of malpractice reform laws. Approximately a decade ago, the states of Texas (in 2003), Georgia (in 2005), and South Carolina (in 2005) changed their malpractice standard for emergency care to “willful and wanton negligence” (in Texas) and “gross negligence” (in Georgia and South Carolina). From a legal standpoint, these two standards are considered to be synonymous and are widely considered to be a very high bar for plaintiffs. Under typical interpretations of this standard, a plaintiff must show that a physician had “actual, subjective awareness” of “the likelihood of serious injury” but nevertheless proceeded with “conscious indifference.”

The Texas, Georgia, and South Carolina laws are intended to protect physicians who are practicing with incomplete information in high-intensity care settings. The enactment of these laws offers an unusual circumstantial experiment with which to evaluate a type of reform that is qualitatively different from what has been studied previously.

Study Design

We used a quasi-experimental analytic approach that was designed to evaluate the effect of legal reform on the treatment of Medicare patients in the emergency department; we attempted to isolate the effect of the law from temporal trends and from characteristics of patients and hospitals (i.e., to evaluate changes that could be attributable to the new policy).


Malpractice reform was not associated with a significant decrease in CT or MRI utilization in any of the three states. There was no significant reduction in per-visit emergency department charges in Texas or South Carolina. In Georgia, reform was associated with a 3.6% reduction (95% confidence interval [CI], 0.9 to 6.2; P=0.01) in charges. There was no reduction in the rate of hospital admissions in any of the three states.


Malpractice reforms in Texas, Georgia, and South Carolina, which changed the liability standard for emergency care from ordinary negligence to gross negligence, provide unusually broad protection for emergency physicians. We 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. Although there was a small reduction in charges in one of the three states (Georgia), our results in aggregate suggest that these strongly protective laws caused little (if any) change in practice intensity among physicians caring for Medicare patients in emergency departments.

In the context of the existing literature, our findings suggest that physicians are less motivated by legal risk than they believe themselves to be. Although a practice culture of abundant caution clearly exists, it seems likely that an aversion to legal risk exists in parallel with a more general risk aversion and with other behavioral, cultural, and economic motivations that might affect decision making. When legal risk decreases, the “path of least resistance” may still favor resource-intensive care. Our results suggest that malpractice reform may have less effect on costs than has been projected.



By Don McCanne, MD

When the topic of controlling health care costs comes up, those opposed to single payer reform, and, for that matter, opposed to the Affordable Care Act, frequently cite the need for malpractice reform, often claiming that defensive medicine (ordering unnecessary tests and medical interventions merely to prevent lawsuits) is a major cause of excess health care spending. This article casts doubt that malpractice reform would reduce supposed defensive medicine.

The three states studied - Texas, Georgia and South Carolina - passed laws requiring a much more rigid standard of “gross negligence” for emergency department physicians to be found liable for malpractice. Data available from Texas demonstrates that their reforms did reduce malpractice claim filings by 60 percent, and reduced malpractice payments by 70 percent. Physicians were reassured that they were protected as long as they did not proceed with “conscious indifference” with care that had a “likelihood of serious injury.”

Now that there was no longer a need for CT and MRI scans and hospital admissions that  were done only to prevent lawsuits, the level of these presumed defensive medicine measures should have decreased. They did not.

This suggests that these measures were taken for reasons other than simply to prevent lawsuits. A low yield test or procedure is not necessarily a no yield intervention. These are done because there is a real chance, even if at low odds, that the intervention may benefit the patient.

This study leads us to conclude that the concept that there is excessive resource-intensive care provided strictly as defensive medicine should be abandoned and replaced with patient-centered outcomes research to better determine what is of value in health care (PCORI in ACA is such an attempt).

We should no longer allow ourselves to be distracted by false promises of health care savings through flawed concepts such as defensive medicine. We know what will greatly reduce wasteful spending, and that is a single payer national health program. We must not be distracted from trying to achieve that goal.