Higher spending is associated with fewer malpractice claims

Physician spending and subsequent risk of malpractice claims: observational study

By Anupam B Jena, Lena Schoemaker, Jay Bhattacharya, Seth A Seabury
BMJ, November 4, 2015


Despite evidence that the majority of US physicians report practicing defensive medicine, no evidence exists on the broader question of whether greater resource use by physicians is associated with fewer malpractice claims. Our findings suggest that greater resource use, whether it reflects defensive medicine or not, is associated with fewer malpractice claims.


Despite evidence that many physicians practice defensive medicine to reduce the risk of malpractice claims, no evidence exists on the broader question of whether a greater use of resources by physicians is associated with a reduced risk of such claims. We investigated the association between average resource use by physicians and subsequent malpractice claims. In six of seven specialties, we found that greater resource use was associated with statistically significantly lower subsequent rates of alleged malpractice incidents. For example, internists in the highest fifth of patient risk adjusted resource use were less than half as likely to face a future malpractice claim compared with those in the lowest fifth. Among obstetricians, those with higher caesarean rates — a procedure sometimes considered to be defensively motivated — had lower subsequent rates of alleged malpractice. These relations held even when we adjusted for patient characteristics and accounted for time invariant physician characteristics such as patient mix, clinical skills, or communication skills.



By Don McCanne, M.D.

Much has been written about the high costs of defensive medicine - excessive health care services that are delivered merely to protect against the potential of malpractice lawsuits. This study tends to reinforce the belief that there is a solid basis for defensive medicine since higher spending on health care is associated with fewer malpractice claims. But does this additional care represent defensive medicine, or does it represent beneficial health care services that prevent adverse outcomes?

Although physicians admit that they practice defensive medicine, do they really do so strictly because of fear of lawsuits? Or do they do so because there is a real possibility that the patient may experience a significant adverse outcome because of the physician’s failure to detect or manage a serious medical condition? Invariably the latter concern plays at least some role in the medical decisions made.

Imaging is probably the most common procedure that is thought all too often to represent defensive medicine, especially when you consider how many results are normal. But if the physician is 100 percent certain that the imaging procedure will not demonstrate any pathology, then she would not order it since she could not be sued for a condition that does not exist. Imaging is ordered only when there is a real possibility of an abnormal finding, even if the odds are low.

When physicians order low yield tests they often think of them as defensive medicine. But as physicians back off on low yield testing, the incidence of missed pathology increases, as does the risk of a malpractice suit. Thus the test that picks up significant pathology is a beneficial health care service and really should not be categorized as defensive medicine only because it also has that benefit. The same reasoning applies to a test that provides the benefit of reassurance that the potential pathology is not demonstrated.

With concerns about the very high costs of health care, many recommend that we do something to reduce all of this unnecessary defensive medicine. The problem with that is, for the reasons mentioned, not much of health care falls into the category of pure defensive medicine that is of absolutely no clinical value. Therefore there is not much savings to recover. You can talk about flat of the curve medicine or low yield medicine, but as soon as you start eliminating care, you sacrifice the health and well being of a few of your patients, not to mention that you deprive many others of the reassurance they would have from a negative test.

Another point is that so called defensive medicine is a very small percentage of the $3 trillion we are spending on health care, and we can afford that. After all, much of it is still beneficial.

If we really want to reduce waste, we should eliminate the profound administrative excesses of our dysfunctional, fragmented, multi-payer system, by adopting a single payer national health program. We would recover hundreds of billions of dollars that way. That is in contrast to this study that shows that spending more on patients is associated with a lower incidence of lawsuits. Whether we label that defensive medicine or beneficial health care services, we are not going to find much savings there.