Tort reform may reduce defensive imaging

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Researchers found decreasing imaging utilization in states with stronger physician protection from malpractice suits, according to a study published in the Journal of the American College of Radiology.

Many believe that physicians are too vulnerable to malpractice lawsuits, resulting in defensive imaging studies that can cost up to $45 billion every year in the U.S. Several states have implemented tort reform to limit doctor liability and the incoming presidential administration seems inclined to nudge states further in that direction, based on comments from President-elect Trump’s Secretary of Health and Human Services (HHS) appointee Tom Price, MD.

Quantifying medical error and assigning the optimal amount of liability can be exceedingly difficult, evidenced by the enormous variability of medical liability laws across the states. Some states are risk adverse which encourages physicians to over-utilize procedures, while other states rely on a doctor’s discretion, trying their best to be an appropriate caregiver. In fact, nearly every state changed some aspect of their medical tort law over the 11-year duration of the study, making tort reform a moving target.

Additionally, missed diagnoses often look obvious after the fact, clouding determinations of malpractice. There’s a fine line between a missed diagnosis and one so difficult that the physician could not have reasonably caught it, but that’s what makes the subject of tort reform so tricky.

Decreased Utilization

Researchers from the Harvey L. Neiman Health Policy Institute looked at the association between tort reforms and radiography orders, finding that greater numbers of tort reform laws were associated with a reduction in radiography orders; each additional tort law would reduce radiography orders by 0.5 percentage points among primary care providers and 1.2 percentage points for sub-specialist. This amounts to around 2.4 to 2.7 million exams per year.

However, different tort laws had different effects. Making it harder to sue physicians and putting caps on damages both reduced imaging utilization, but limiting suits had a stronger effect, according to study author Danny R. Hughes, MD, senior director for health policy research at Harvey Neiman.

“When you think about caps on damages, at the end of the day, everyone has malpractice insurance,” he said. “If you’re being sued and paying a claim at all, you’re going to want to minimize anything that could increase your malpractice rates. Caps still matter, but not quite as much—on the margin folks might image anyways because they feel exposed.”

“But, if you’re confident you’re less likely to be sued, you’re less likely to order testing specifically to avoid being sued,” he added.

Another key finding was the differing response to permanent versus temporary reforms.

While most legislation remains in place, some tort reform was repealed or struck down as unconstitutional by a state Supreme Court. While permanent legislation caused the expected decrease in radiography exams, the tort laws that were later repealed had no effect on utilization—a curious effect, according to Hughes.

“It’s not passed as a temporary reform, it’s only repealed later,” he said. “So given that you don’t know for certain it’s going to be repealed or not, why do folks choose not to change their behavior?”

While he theorizes that parliamentary opposition to the bill may signal to physicians that it’s likely to be removed—so they don’t adapt their habits—Hughes believes this trend bears further investigation.

Future reform

This study has additional significance in the light of recent statements by GOP lawmakers alleging the U.S. is in the grips of a malpractice crisis. Price asserted that “hundreds of billions of dollars” are wasted on defensive medicine in the U.S. and has repeatedly pointed to his ACA-alternative legislation “A Better Way” as a solution to protect physicians and cut costs. While the Washington Post reported that malpractice numbers didn’t quite add up to a crisis, Hughes expects to see additional tort reform over the next four years.

However, even with the study finding positive results with tort reform, Hughes cautions against gutting a patient’s power to bring malpractice suits to court.  

“You want an appropriate amount of liability,” he said. “You want to ensure you have protections for patients, but at the same time you don’t want outsize settlements that are driving up [malpractice insurance] premiums to the point where it they are influencing cost.”