Fear of liability risks patient care
The medical malpractice liability system may be preventing doctors from giving patients the best care, state the authors of a Review of medical liability in this week's Lancet.
Skyrocketing medical liability insurance rates in Australia, UK, and USA have precipitated renewed concern about the effects of the liability system on the cost of health care. Yet, as Daniel P Kessler (Hoover Institution and the National Bureau of Economic Research, Stanford University, Stanford, CA) and colleagues observed, the indirect consequences of increasing liability pressure may be far more important.
The authors found systematic evidence that doctors practise defensive medicine, based on fear of legal liability rather than on patients' best interests. Although most doctors are insured against the monetary costs of malpractice, they bear substantial uninsured, non-monetary costs, including lost time, damaged reputation, and the expenditure of emotional energy. In addition, in the three countries studied, prescribing doctors do not bear the full costs of care, so they may be more likely to give unnecessary treatment. As a result, small increases in the costs imposed by lawsuits might lead to large changes in the intensity and volume of care, even if such changes do not enhance patients' health. The researchers found such changes in care take two forms: negative defensive medicine (the withholding of productive care) and positive defensive medicine (the supply of unproductive care).
The researchers offer suggestions for reform of common-law tort systems to improve medical practice. "Empirical evidence from the USA shows that direct limits of damages reduce malpractice pressure on doctors, and in turn, reduce defensive medicine," writes Professor Kessler. States in USA with caps on non-economic damages also have a greater supply of doctors, which enhances competition and improves patient access to care.
"Investigation of the effects of these and other reforms in Australia and the UK is an important topic for continuing and future research," he adds.
Professor Daniel Kessler
Stanford University, Stanford, CA, USA
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