Media Advisory: To contact David M. Studdert, L.L.B., Sc.D., M.P.H., call Kevin Myron at 617-432-3952. To contact the corresponding author of the second study, William M. Sage, M.D., J.D., call Barbara Beck at 215-209-3076. To contact editorialist Peter P. Budetti, M.D., J.D., call Jerri Culpepper at 405-325-1701.

Newswise — More than 90 percent of surveyed physicians in Pennsylvania reported defensive medicine practices such as over-ordering of diagnostic tests, unnecessary referrals and avoidance of high-risk patients, according to a study in the June 1 issue of JAMA.

Defensive medicine is a deviation from sound medical practice that is induced primarily by a threat of malpractice suits, according to background information in the article. Defensive medicine has been reported widely in the United States and abroad. However, its prevalence and characteristics remain controversial.

According to the article, defensive medicine may supplement care (e.g., additional testing or treatment), replace care (e.g., referral to another physician or health facility), or reduce care (e.g., refusal to treat particular patients). Some practices, described as "assurance behavior" (sometimes called "positive" defensive medicine), involve supplying additional services of marginal or no medical value with the aim of reducing adverse outcomes, deterring patients from filing malpractice claims, or persuading the legal system that the standard of care was met. Other practices, described as "avoidance behavior" (sometimes called "negative" defensive medicine), reflect physicians' efforts to distance themselves from sources of legal risk. Defensive medicine, particularly avoidance behavior, encompasses both day-to-day clinical decisions affecting individual patients and more systematic alterations of scope and style of practice.

David M. Studdert, L.L.B., Sc.D., M.P.H., of the Harvard School of Public Health, Boston, and colleagues conducted a study to determine whether during a more volatile period in malpractice insurance markets, physicians' uncertainty about the costs and availability of coverage may induce a wider array of defensive practices, affecting not only the cost of health care but also its accessibility and quality. In May 2003, the researchers surveyed Pennsylvania physicians in six specialties at high risk of malpractice claims about the frequency and nature of their defensive practices. The specialties were emergency medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology, and radiology.

A total of 824 physicians (65 percent) completed the survey. Nearly all (93 percent) reported practicing defensive medicine. "Assurance behavior" such as ordering tests, performing diagnostic procedures, and referring patients for consultation was very common (92 percent). Among practitioners of defensive medicine who detailed their most recent defensive act, 43 percent reported using imaging technology in clinically unnecessary circumstances. Avoidance of procedures and patients that were perceived to elevate the probability of litigation was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious. Defensive practice correlated strongly with respondents' lack of confidence in their malpractice insurance and perceived burden of insurance premiums.

"Higher levels of defensive medicine are part of the social costs of instability in the malpractice system. The most frequent form of defensive medicine, ordering costly imaging studies, seems merely wasteful, but other defensive behaviors may reduce access to care and even pose risks of physical harm. Because both obstetrics and breast cancer detection are high-liability fields, women's health may be particularly affected," the authors write.

"Efforts to reduce defensive medicine should concentrate on educating patients and physicians regarding appropriate care in the clinical situations that most commonly prompt defensive medicine, developing and disseminating clinical guidelines that target common defensive practices, and reducing the financial and psychological vulnerability of individual physicians in high-risk specialties to shocks to the liability system," the researchers conclude.

(JAMA. 2005;293:2609-2617. Available pre-embargo to the media at http://www.jamamedia.org)

Editor's Note: This study was funded by a grant from the Pew Charitable Trusts as part of the Project on Medical Liability in Pennsylvania.

Tort Reform Associated With Increase In Physician SupplyStates that enacted malpractice reforms had an increase in their overall supply of physicians, according to a study in the June 1 issue of JAMA.

Debates about medical malpractice have recurring themes, with tort reformers emphasizing the threat that liability crises pose to the cost and availability of medical services and tort defenders emphasizing the importance of liability to medical quality, according to background information in the article. Effects on access to health care are of particular concern during "malpractice crises," when rising liability insurance premiums and uncertain coverage are said to induce physicians to avoid high-risk patients or procedures, relocate to other communities, or leave practice altogether. Even between such crises, however, malpractice climate remains one of many factors determining how many physicians enter the medical profession, what specialties they choose, and where they practice.

Daniel P. Kessler, Ph.D., J.D., of the Stanford University Graduate School of Business, Hoover Institution, and the National Bureau of Economic Research, Stanford, Calif., and colleagues investigated whether and how liability pressure affects long-term trends in physician supply from state to state. The researchers used data from the American Medical Association's Physician Masterfile on the number of physicians in active practice in each state for each year from 1985 through 2001, and matched this with data on state tort laws and state demographic, political, population, and health care market characteristics.

The researchers found that the adoption of "direct" malpractice reforms that reduce the size of awards (such as caps on damages) led to greater growth in the overall supply of physicians. Three years after adoption, direct reforms increased physician supply by 3.3 percent, controlling for fixed differences across states, population, states' health care market and political characteristics, and other differences in malpractice law. Direct reforms had a larger effect on the supply of nongroup vs. group physicians, on the supply of most (but not all) specialties with high malpractice insurance premiums, on states with high levels of managed care, and on supply through retirements and entries than through the propensity of physicians to move between states. Direct reforms had similar effects on less experienced and more experienced physicians.

(JAMA. 2005;293:2618-2625. Available pre-embargo to the media at http://www.jamamedia.org)

Editor's Note: This work was supported by the Project on Medical Liability in Pennsylvania funded by The Pew Charitable Trusts.

Editorial: Tort Reform and the Patient Safety Movement - Seeking Common Ground

In an accompanying editorial, Peter P. Budetti, M.D., J.D., of the University of Oklahoma Health Sciences Center, Oklahoma City, discusses the studies on defensive medicine and tort reform in this week's issue of JAMA.

"Perhaps the foremost lesson emerging from the work of Studdert et al and Kessler et al is that medicine's 30-year pursuit of piecemeal tort reform has had some results, but not all the consequences have been positive and serious problems with the quality of medical care have not been ameliorated. While some physicians apparently prefer to practice in states that have enacted certain liability law changes, the tort system still seems to engender perverse behaviors such as widespread, sometimes serious, and often costly deviations from accepted medical practice, and internal self-monitoring by the medical profession evidently permits such behavior to occur on a large scale. Most important, the pattern of tort reforms pursued to date has not led to innovative legal approaches that serve both the profession and patients by tying liability law restructuring to systemic, evidence-based changes in medical practice that ensure adherence to not deviate from good medical care."

"What is needed is to link new approaches to legal accountability with mandatory active participation in advanced, systematic measures to ensure high-quality care. Plaintiffs' attorneys, physicians, and patient safety proponents need to work toward achieving their stated central motivation (i.e., protecting patients from medical errors and fairly compensating the unfortunate few who nevertheless sustain avoidable injuries). Even as states continue to reform tort law and the patient safety movement makes progress toward its goals, health care generates large numbers of avoidable injuries from medical errors—most of which the legal system fails to compensate. Regardless of how fanciful this may sound in the face of entrenched contrary experience, now is the time for the disparate and opposing forces to find a way to focus together on 'the large number of patients who die unnecessarily each year from medical errors' rather than a continuance of actions reflecting the visceral antipathy of many physicians and lawyers to one another," Dr. Budetti writes.

(JAMA. 2005;293:2660-2662. Available pre-embargo to the media at http://www.jamamedia.org)

Editor's Note: Dr. Budetti is serving as a paid expert in a lawsuit against a number of health maintenance organizations in which his contribution is focused on issues related to medical necessity and also is performing malpractice-related research funded by the Henry J. Kaiser Family Foundation.

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CITATIONS

JAMA (1-Jun-2005)