Otherwise, Impact on Quality of and Access to Health Care Remains
Unknown
WASHINGTON, D.C. - With the release of several academic studies this
week on medical malpractice, medical liability law and physician
reaction to the perceived threat of being sued, Public Citizen offers
the following initial appraisals from the consumer and patient
perspective. Ultimately, what's most important in the debate over
medical malpractice is encouraging the best outcomes for patients while
preserving victims' rights to seek full compensation for injuries
suffered, Public Citizen believes. In examining medical liability, these
studies generally do not address patient care, the impact on patients or
their families of restricting the ability to recover damages, or the
effect the legal system can have in serving to deter bad outcomes.
1) "Impact of Malpractice Reforms on the Supply of Physician Services,"
Journal of the American Medical Association, June 1. This study finds,
on the surface, a very modest association between overall number of
physicians and changes in a state's medical liability law. But upon
closer examination, the study fails to take into account important
factors that can significantly influence where a physician decides to
practice:
-- The study controlled for factors such as population growth,
political orientation of a state's governor and legislature, and number
of medical residents. But it should also have included other factors
that can be significant, if not determinative, such as cost of living,
quality of life, taxation, quality of schools and health of the local
population. California, for example, has the strictest limits on
malpractice awards, yet the California Medical Association found 43
percent of doctors it surveyed in 2001 planned to leave practice within
three years.
-- The study's finding of additional doctors in states that have
enacted "direct" medical liability changes - that is, changes affecting
patient recovery of damages directly - was quite modest, only 3.3
percent. This is for the period 1985-2001, a time when the overall
physician population grew by about 65 percent. By itself, the 3.3
percent figure does not suggest what the proper number of doctors should
be, nor does it address the quality of or access to health care that
patients should be entitled to receive.
-- The study's principal finding was differences in rates of growth
among states. It did not find a loss of physicians in states that have
not enacted liability law changes. Even in states without changes, there
was strong growth in the number of physicians.
-- Other medical liability law changes that states have made - that
is, "indirect" changes that don't directly affect how much patients can
be granted in damages - were associated with smaller, not larger, growth
in physician supply. Such indirect changes include restricting patients'
lawyers' fees or requiring that damages be paid over time.
-- As the authors acknowledge, the study's approach "has
significant limitations." Perhaps the most important is that the study
does not take into account what happened prior to the study period. The
authors say: "We cannot exclude the possibility that the increase in
physician supply we observed in states adopting reforms during our study
period was simply a consequence of those states having more room for
growth, because those states had fewer physicians (initially). We
controlled for differences in baseline levels of supply but not for
differences in baseline growth rates in supply."
2) "Have State Caps on Malpractice Awards Increased the Supply of
Physicians?,"
Health Affairs, June 1. This study finds an even smaller association
between restricting patients' legal rights and the number of doctors in
an area - a 2.2 percent increase in the supply of physicians between
1985 and 2000 in counties that are part of states that have restricted
legal rights. But it veers off course in flatly asserting a direct
causal relationship its data don't support:
-- This study assembles different variables in an effort to explain
the impact of award caps on number of doctors. This is standard research
practice. But the report conclusively states that caps cause an increase
in the supply of physicians - something this kind of modeling cannot
establish. This assertion comes despite a limitation similar to one
noted above, as the authors acknowledge that data limitations mean they
could not examine the impact of any liability law changes enacted before
their study began.
-- This study claims to include more variables that could account
for a doctor's decision about where to locate, such as tax rates or
cultural factors. But it is not spelled out in the study, or in
supplementary material available on the Internet, what these variables
were or how accurately they capture the effects involved.
3) "Defensive Medicine Among High-Risk Specialist Physicians in a
Volatile Malpractice Environment," Journal of the American Medical
Association, June 1. This research, based on a mail survey of physicians
in specialties claimed to be at high risk of litigation, looks at
whether doctors' anxiety over being sued causes them to practice
"defensive medicine." The survey defined defensive medicine as
performing unnecessary tests or making unneeded referrals, plus avoiding
difficult procedures or patients thought to be litigious. Ninety-three
percent of 824 physicians responding reported practicing defensive
medicine.
The report has a major limitation because it is based on a
self-selected group of respondents who are probably more likely to
report practicing defensive medicine than doctors who did not choose to
respond. As the authors note: "Physician self-reports of defensive
medicine may be biased toward giving a socially desirable response or
achieving political goals." As a 1994 study on defensive medicine from
the Congressional Office of Technology Assessment said: "If physicians
are asked how often they practice defensive medicine in survey
questionnaires, they may be inclined to respond with the answer most
likely to elicit a favorable political response and thus exaggerate
their true level of concern about malpractice."
-- The report is also based on physician specialties in a single
state (Pennsylvania), meaning its findings may not be generalizable to
other locations, the authors say.
-- Echoing previous survey findings, this report found no link
between individual physicians' tendencies to practice defensive medicine
and those doctors' own liability experience and exposure. Thus, rather
than acting on the reality of their own personal history in such matters
as being sued or obtaining malpractice coverage, physicians may instead
be acting more out of "collective anxiety."
"These reports once again underscore the fact that lawsuits are not
responsible for rising medical malpractice insurance costs and are not
driving doctors away from any state," said Public Citizen President Joan
Claybrook. "Like all Americans, doctors choose to live in a particular
place because of such things as the quality of life, level of taxation
and the quality of educational opportunities for themselves and their
families. Caps punish the most severely injured patients and do nothing
to reduce insurance rates."
A fourth study released this week echoes earlier research by Public
Citizen. "The Growth of Physician Medical Malpractice Payments: Evidence
from the National Practitioner Data Bank," also appearing in the June 1
issue of Health Affairs, says the growth of malpractice payments made on
behalf of doctors is less than previously thought and is consistent with
increases in the cost of health care itself. Focusing on courtroom
judgments is misleading, because judgments - versus settlements between
parties - account for fewer than 4 percent of cases, the study said.
Malpractice payments as a fraction of national health care spending have
not risen significantly, it said.
In April, Public Citizen released its report, "Medical Malpractice
Payout Trends 1991-2004: Evidence Shows Lawsuits Haven't Caused Doctors'
Insurance Woes." It found that malpractice payouts to patients have been
flat since 1991 and show a significant decline since 2001, when the
so-called "crisis" of escalating malpractice insurance rates began. It
also found that the medical liability system is not one of "jackpot
justice," in which patients go to court and score big awards based on
flimsy claims. Instead, those with minor injuries receive little
compensation, while the great bulk of malpractice awards are for cases
involving major, debilitating injuries, or death.
Public Citizen's April report can be found at
http://www.citizen.org/documents/Malpracticeanalysis_final.pdf .
###
Public Citizen is a national, nonprofit consumer advocacy organization
based in Washington, D.C.
For more information, please visit www.citizen.org .
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