Two JAMA Studies Indicate Medical Malpractice System May Hurt Americans’ Access To Health Care: Physicians Practice “Defensive Medicine”

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Two new studies published in "The Journal of the American Medical Association" find that malpractice system hampers access to physicians.

The Journal of the American Medical Association.

— The crisis enveloping the United States’ medical malpractice system may leave some Americans without the care they need because it hampers their access to physicians, according to two studies published this week in "The Journal of the American Medical Association."

One study, based on a survey of 824 Pennsylvania physicians during 2003, finds that nine out of 10 doctors in six high-risk specialties practice “defensive medicine,” which includes avoiding patients with complex medical problems. The second study, based on national data from the American Medical Association’s Physician Masterfile, shows that states failing to adopt malpractice reforms recorded a smaller increase in the number of physicians from 1985 to 2001 than states with reforms.

The Project on Medical Liability in Pennsylvania — an independent, nonpartisan effort financed by The Pew Charitable Trusts — supported both studies. In the 2003 survey, physicians who said they practice defensive medicine were asked to describe their behavior. Substantial numbers reported ordering tests, performing procedures or making referrals out of fear of lawsuits, fueling the increase in health-care costs.

Unnecessary imaging studies were the most prevalent acts reported. When asked to describe their most recent defensive act, more than half of the emergency physicians, orthopedic surgeons, and neurosurgeons surveyed described ordering a CT, MRI, or x-ray that they did not believe was needed.

Other reported defensive behavior affects patients’ access to quality care: Forty-two percent of the physicians surveyed said they had restricted their practices since 2000 because of liability concerns, including eliminating procedures prone to complications and avoiding patients with complex medical problems or who appeared litigious.

Women may suffer from the effects of defensive medicine more than men. Physicians specializing in obstetrics and gynecology reported sometimes limiting obstetric services, and some radiologists reported that they had stopped reading mammograms.

The percentages dramatically outstrip results of previous studies, suggesting that Pennsylvania’s litigious climate and high malpractice insurance costs weighed heavily in physicians’ decisions, the authors said.

The study also suggests that technology plays a key role in defensive medicine. Specialists participating in the survey frequently reported using technology to pacify demanding patients, bolster their own self-confidence, or create a trail of evidence confirming their professional judgment.

“Defensive medicine is part of the social cost of a medical malpractice crisis,” conclude the researchers. “Ordering costly imaging studies seems merely wasteful, but other defensive behaviors may reduce access to care and even pose risks of physical harm to patients.”

The second study measured the effects of “direct” malpractice reforms, particularly caps on damages in malpractice lawsuits, on the supply of physicians. States adopting reforms experienced a 3.3 percent larger increase in the number of physicians than states without changes. This is roughly equivalent to the supply increase that would result from increasing physicians’ earnings by 11 percent.

Contrary to popular belief, the difference in supply came mostly from older doctors putting off retirement in reform states and new physicians entering practice there, not from physicians moving between states to reduce their insurance premiums, the study said.

“This finding supports the argument that the effects of direct reforms will persist, at least to some degree, even if all the states adopt reforms,” said William M. Sage, the principal investigator for the Project on Medical Liability in Pennsylvania and a professor at Columbia Law School.

Reform states had particularly large increases in physicians practicing alone or in small groups; in states without reforms, those physicians tended to join larger groups. Reform states also experienced greater increases in physicians practicing most “high-risk” specialties.

Neither study specifically measured patients’ unmet medical needs during malpractice crises, or quantified potential benefits to patients from the malpractice system.

A copy of both research papers may be found on

The principal author of the defensive medicine study was David M. Studdert, LL.B., Sc.D., M.P.H., an associate professor in the Department of Health Policy and Management at Harvard School of Public Health. The principal author of the physician supply study was Daniel P. Kessler, Ph.D., J.D., a professor at the Stanford University Graduate School of Business and a senior fellow at the Hoover Institution. William M. Sage, M.D., J.D., the principal investigator for the Project on Medical Liability in Pennsylvania and a professor at Columbia Law School, co-authored both studies.

The Project on Medical Liability in Pennsylvania provides Pennsylvania policy makers with objective information about the medical liability system; broadens participation in the medical liability debate to include new constituencies and perspectives; and focuses attention on the relationship between medical liability and the overall health and prosperity of the Commonwealth. The Project is working with leading health policy experts from across the nation and will continue to publish original research based on new data and expert analyses. The Project generates information from a broad range of perspectives, without promoting the agenda of any of the stakeholders in the debate.

The Pew Charitable Trusts serves the public interest by providing information, policy solutions and support for civic life. Based in Philadelphia, with an office in Washington, D.C., the Trusts will invest $177 million in fiscal year 2005 to provide organizations and citizens with fact-based research and practical solutions for challenging issues.


Barbara Beck



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