The Effect of Tort Reform on Emergency Room Department Care

A recent article in the New England Journal of Medicine reminds us that Tort Reform does not lower health care costs. Many people believe that the fear of malpractice lawsuits drive physicians to order otherwise unnecessary care and that their legal reforms can reduce such wasteful spending. They argue that this causes defensive practice of medicine. The facts, however, show that this simply is not true. The New England Journal of Medicine studied three states – Texas in 2003, Georgia in 2005 and South Carolina in 2005 – that had enacted legislation that changes the malpractice standard for emergency room care to gross negligence. In other words, the legislators in those states gave special treatment to emergency room physicians and made it much harder to bring suit against them. This change meant that rather than being held accountable when they injured someone negligently, you would have to show that they were grossly negligent. This is a much higher burden of proof than every other state. The intent of the legislation was that this would reduce emergency room health care costs.

The New England Journal of Medicine found that this did not reduce health care costs. They found, based on a large scientific study, that the legislation that changed the malpractice standard for emergency room physicians had little effect on the number of tests ordered, the amount of care provided or hospital admission rates. They found that the physicians were still ordering the same radiology studies, i.e. CT-scans and MRIs at the same rate as they were before Tort Reform. They also found that the patients were being admitted to the hospital at the same rate as before Tort Reform.

Defensive medicine is a catch phrase that has been thrown around to try and justify Tort Reform. It has been proven time and time again that it is a myth. Physicians order tests they believe patients need. The groups that are always pushing for Tort Reform argue that a test that has a 5% chance of detecting a cancer should not be ordered because there is a 95% chance it will not show a cancer. Of course, when members of those groups have to go to the emergency room themselves, you can be sure they will feel differently. If a physician tells them there is a 1 in 10 chance that they have a detectable cancer, but we are not going to order that test, you better believe they will want that test ordered.

New England Medicine of Medicine, 2014; 371:1518 – 1525, October 16, 2014

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