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World Health News Today| Latest Medical News Articles

A Fear of Lawsuits Really Does Seem to Result in Extra Medical Tests

Back in 2010, Tom Price, then a congressman, said he knew the chief reason health care cost so much: “Defensive medicine” was costing the United States $650 billion per year — about 26 percent of every dollar spent.

The widely dismissed estimate from Dr. Price, an orthopedic surgeon who went on to become President Trump’s health and human services secretary before resigning last fall, was memorable for its magnitude.

But American doctors often rail against the country’s medical malpractice system, which they say forces them to order unnecessary tests and procedures to protect themselves if a patient sues them. Some prominent health economists, including those at the Congressional Budget Office, have tended to play down such costs, arguing that medical practice is not too warped by fear of lawsuits. But the question has proved difficult to study, since patients nearly everywhere can sue. Without a control group, it’s hard to know how differently doctors might act if they were less worried about liability.

Researchers from Duke and M.I.T. have found a pocket of America that is different, and they now offer what is perhaps the most precise estimate of how much defensive medicine matters, at least for care in the hospital. They found that the possibility of a lawsuit increased the intensity of health care that patients received in the hospital by about 5 percent — and that those patients who got the extra care were no better off.

“There is defensive medicine,” said Jonathan Gruber, a health economist at M.I.T. and an author of the paper, which was published in draft form Monday by the National Bureau of Economic Research. “But that defensive medicine is not explaining a large share of what’s driving U.S. health care costs.”

Mr. Gruber and Michael D. Frakes, a Duke economist and lawyer, looked at the health care system for active-duty members of the military. Under longstanding law, such patients get access to a government health care system but are barred from suing government doctors and hospitals for malpractice. Their family members can also use the military hospitals, but they can sue for malpractice if they wish.

Their study looked at what happened to the hospital care that military members received when a base closing forced them to use their benefits in civilian hospitals, where it was possible to sue. Spending on their health care increased, particularly on extra diagnostic tests.

They also found that, even within the military hospitals, family members who could sue tended to get more tests than those who could not.

Previous research has primarily looked at the effects of smaller legal reforms, like state caps on the awards that malpractice victims can collect in court. Those studies showed some declines in medical spending related to the policies. But they tended to be small, and yearly variation in medical spending made it difficult to be sure how much of the difference was because of the legal change.

Their study looked at what happened to the hospital care that military members received when a base closing forced them to use their benefits in civilian hospitals, where it was possible to sue. Spending on their health care increased, particularly on extra diagnostic tests.

They also found that, even within the military hospitals, family members who could sue tended to get more tests than those who could not.

Previous research has primarily looked at the effects of smaller legal reforms, like state caps on the awards that malpractice victims can collect in court. Those studies showed some declines in medical spending related to the policies. But they tended to be small, and yearly variation in medical spending made it difficult to be sure how much of the difference was because of the legal change.

The most popular state action has been to impose caps on monetary damages. In the paper, the authors suggest different types of changes to malpractice policy, including one in which doctors would be shielded from liability if they adhered to common standards of care. Ms. Mello suggested studying a system in which administrative courts, instead of juries, determined liability and damages.

Other possible approaches haven’t been tried, like a system used for childhood vaccines, in which patients are paid if they are harmed by medical care, regardless of fault.

“Policymakers have only experimented with a limited set of types of reforms to date,” Mr. Frakes said. “We haven’t experimented a lot with more structural reforms to the system.”

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