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A few of our recent posts have examined what tort reform advocates refer to as defensive medicine – the practice of ordering tests and other procedures that don’t benefit patients to reduce the risk of a medical malpractice lawsuit. The thinking is that tort reform will reduce lawsuits.  This in turn will leading to less defensive medicine and lower health care costs because health care providers will order fewer tests if there is less risk of being sued. Some have suggested defensive medicine costs as much as $100 billion dollars a year.  Fact is, there is virtually no authoritative support for these theories.  In fact, now even the CATO Institute (founded by Charles Koch – a champion of tort reform to curb frivolous lawsuits) recently published a study examining the effect of tort reform on the quantity of health care delivered.  You can read a summary here.

The researchers looked at Medicare spending on hospitals and physicians in nine states that had enacted tort reform style damages caps and, to their surprise, found that hospital spending remained flat and physician spending actually rose after the caps were enacted.  They also used a second approach estimating medical malpractice risk against physicians based on claims reported to the National Practitioners Data Bank.  Again, they found that decreased claim rates predicted higher spending by both hospitals and physicians. The researchers noted that both approaches “led to results that are contrary to conventional wisdom on the practice of defensive medicine.”  While the researchers noted that damages caps appear to increase the amount of medicine delivered, it is not clear why or whether the results would be the same for non-Medicare patients.  Certainly something is at play.

The bottom line is that while anecdotal evidence may support the existence of defensive medicine, real research does not – not that these findings will dissuade die-hard tort reformers from continuing to push the notion that physicians are unethically ordering useless tests and other care.

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