The Snake Oil of Medical Malpractice Reform

Now that the results of medical malpractice "reform" can be objectively measured, it has become increasingly clear that the healthcare and insurance industries were peddling snake oil when it convinced 31 states in our country to place caps on damages for those harmed by medical malpractice. Studies measuring the impact of "reform" have demonstrated that reform has had no impact on healthcare costs or where doctors choose to practice. Three of the most recent studies discussed below further demonstrate that malpractice reform does not work and that it is time for the 31 states that have adopted caps on damages to repeal these laws.

No Evidence that Doctors Flee States Without Tort Reform Researchers from the University of Texas, University of Illinois, and Northwestern University asked whether the 2003 medical malpractice reforms in Texas impacted physician supply in the state. Tort reform advocates had complained that doctors were fleeing Texas in droves and that caps on damages were necessary to stem the tide. The researchers found, however, that doctors were not leaving Texas prior to the 2003 reforms and that the 2003 reforms had no measurable impact on physician supply. This was true for all patient care physicians in Texas, high-malpractice-risk specialties, primary care physicians, and rural physicians. "Does Tort Reform Affect Physician Supply? Evidence from Texas Northwestern Law & Econ Research Paper 12-11 Illinois Program in Law, Behavior and Social Science Paper No. LBSS12-12 U of Texas Law, Law and Econ Research Paper No. 225.papers.ssrn.com/sol3/papers.cf… ?abstract_id=2047433.

No Evidence that Doctor Engage in Defensive Medicine Members of the same research team asked whether the placement of caps on medical malpractice damages in nine states between 2002 and 2005 lowered the cost of healthcare due to the presumption that doctors would no longer practice "defensive" medicine. The researchers found that the reforms had no impact on Medicare Part A spending and, ironically, were associated with a higher rate of Medicare B spending. "Do Doctors Practice Defensive Medicine, Revisited" Northwestern Law & Econ Research Paper No. 13-20, Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-21. papers.ssrn.com/sol3/papers.cf… ?abstract_id=2110656.

These findings echoed the findings of Waxan et. al. published in the October 16, 2014 edition of the New England Journal of Medicine. This researchers asked whether tort reform measures for emergency room physicians in Texas, South Carolina, and Georgia reduced the number of tests and imaging studies ordered by emergency room doctors. Those states had enacted "reforms" which protected emergency room physicians from suit unless an injured patient could prove the that the doctor consciously disregarded the need to use reasonable care with the knowledge that their actions were likely to cause serious injury. Because these laws effectively shielded emergency room doctors from suit, tort reform advocates presumed that the cost of emergency care would be reduced as doctors no longer would feel compelled to order unnecessary and expensive tests to avoid a malpractice lawsuit. Researchers then compared the cost of emergency department care for over 3 million patients in states other than Texas, South Carolina and Georgia to the cost of care in these three states. The study concluded that the tort reform measures failed to reduce costs in Texas and South Carolina and only minimally reduced costs in Georgia. The study further found that the tort reform measures had no impact on the rate at which emergency doctors ordered MRI or CT scans, expensive studies that tort reform advocates had claimed were being ordered by doctors practicing defensive medicine. Waxman, "The Effect of Malpractice Reform on Emergency Department Care," N Eng J Med, 2014; 371: 1518-1525 (Oct. 16, 2014).