Malpractice Award Caps May Alter CAD Testing, Management

Maureen Donohue

June 21, 2018

Physicians in states that limit the amount juries can award for noneconomic damage in medical malpractice suits conduct fewer invasive tests for suspected coronary artery disease (CAD) and referred fewer patients for revascularization than their counterparts in states with no caps on medical liability.

Results of a study led by Steven A. Farmer, MD, from the Center for Healthcare Innovation and Policy Research at George Washington University, Washington, DC, show that physicians in nine "new-cap" states substantially changed their approach to CAD testing and management compared with physicians in 20 states with no caps.

"To our knowledge, ours is the first paper to show changes in clinical behavior following up cap adoption in the particular setting of CAD testing and treatment," the authors write.   

"Our study suggests that physicians who face lower malpractice risk may be less concerned with that risk, and thus more receptive to new care delivery strategies associated with alternate payment models," they conclude.

The difference-in-differences study, conducted jointly by researchers at George Washington and Northwestern universities, was published online June 6 in JAMA Cardiology.  

Defensive Medicine

Physicians often report practicing "defensive" medicine to reduce malpractice risk, including performing expensive but marginally beneficial tests and procedures, the researchers write.

Many states have adopted noneconomic damage caps that compensate plaintiffs for "pain and suffering," they note. Previous studies of malpractice reforms, including damage caps, have shown little evidence that such changes affect overall healthcare spending, and none of these studies has evaluated whether or how changes in malpractice risk affect clinical decision making, especially in the face of an uncertain diagnosis, the researchers write.

This new analysis compared diagnosis and treatment patterns in patients suspected of having CAD for 36,647 physicians in states that adopted limits on medical liability between 2003 and 2005 with results for 39,154 physicians in states with no caps. Data were taken from the 5% national Medicare fee-for-service random sample between 1999 and 2013.

Clinicians in new-cap states ordered the same overall number of tests for ischemia, but they were less prone to rely on angiography as a first diagnostic test and more likely to order less definitive, noninvasive stress testing, they report.

In addition, fewer patients were referred for angiography following initial stress testing. Physicians in new-cap states also performed fewer percutaneous coronary intervention (PCI) procedures after ischemic evaluation, suggesting that they were more likely to rely on medical therapy, study authors note.

Table. Change in Practice in States With vs Without Caps on Medical Liability

Endpoint Relative Change (95% Confidence Interval) (%) P Value
Angiography as first diagnostic test –24 (–40 to –7) .005
Noninvasive stress testing 7.8 (–3.6 to 19.3) .17
Referral for angiography after initial stress testing –21 (–40 to –2) .03
PCI after ischemic evaluation –23 (–40 to –4) .02


The current study has several limitations, the authors point out. Its observational, retrospective design could not account for unobserved differences, and the number of new-cap states is also relatively small; this is an inherent limitation in this study, which is based on state-level reforms. The authors had no access to clinical data, so they could not evaluate whether the testing and treatment were appropriate.

How physicians respond to malpractice caps may depend on practice settings, but the researchers did not have these data and thus could not test this possibility, the researchers note. Finally, the current study involved only Medicare fee-for-service patients older than 65 years. It's possible that physicians might use a different approach for younger patients or for patients insured by other payers, such as commercial payers, which may have preauthorization requirements.

Sword of Damocles

Like the researchers, George Rodgers, MD, associate chief of cardiology and associate professor of medicine at Dell Medical School at the University of Texas at Austin, also noted that this study is the first to evaluate physician treatment patterns in states with and without caps on medical malpractice awards.

The threat of medical malpractice lawsuits and the high cost of malpractice insurance in the United States has caused physicians to increasingly practice defensive medicine, ordering more diagnostic tests and conducting more procedures than may be necessary, says Rodgers, who is a past chair of the medical/professional liability committee at the American College of Cardiology.

"I guarantee that if you walk into an emergency room complaining of a headache, you'll get a CT scan of your head," Rodgers said, "even if you know your head hurts because you haven't had your coffee that day. If you walk in complaining of chest pain, you'll get a troponin I test, and probably be cathed, even if you're a healthy 20-year-old who was hit in the chest with a baseball."

If you walk in complaining of chest pain, you'll get a troponin I test, and probably be cathed, even if you're a healthy 20-year-old who was hit in the chest with a baseball. Dr George Rodgers


Physicians can't be blamed for becoming extremely cautious, says Rodgers, with the threat of lawsuits and potentially unlimited awards hanging over them like a sword of Damocles.   

 "And ER [emergency room] physicians are always out on a limb," he added. The practice of defensive medicine "starts in the ER and becomes a chain reaction down the line." 

Not only is defensive medicine a major contributor to the skyrocketing cost of healthcare in the United States, but it has other potentially damaging repercussions, according to Rodgers. Before 2003, when Texas instituted tort reform and adopted caps on noneconomic damage awards, several counties in the state did not have any obstetricians willing to deliver babies, Rodgers says. Many counties also had no neurosurgeons who would operate on trauma patients.

Historically, obstetricians and neurosurgeons have been the targets of more malpractice lawsuits than physicians in other specialties, so they have traditionally paid some of the highest rates of medical malpractice insurance, with yearly premiums topping the mid-six-figure range in many cases.

Moreover, by 2000, the number of insurance companies willing to indemnify physicians in Texas fell from as many as 20 to as few as 2 in many counties, making it even more difficult and expensive to obtain insurance. Since adopting malpractice caps, the number of malpractice insurance companies in Texas has again risen to more than 20.

Rodgers, who lobbied the Texas legislature to adopt medical malpractice tort reform, says the process of change is not easy. "Lawmakers often have a bias in favor of plaintiffs," Rodgers says. And frequently they fear that capitating damage awards is the first step on a slippery slope that will place still more restrictions, or even a ban, on medical malpractice lawsuits, he explains.

"No one wants to eliminate these lawsuits completely," he says.

The goal of damage caps is to encourage physicians to practice appropriate care rather than defensive medicine, a concept the American College of Cardiology has advocated for some time.

In Texas, changes to the medical professional liability law necessitated an amendment to the state constitution, which required a vote by the entire citizenry. "The medical community totally buys into [capping damage awards], but we need to open the eyes of lawmakers and the public," Rodgers said. "That's why [the change] doesn't happen overnight."

Although Rodgers believes this study is important because it is the first to demonstrate that reducing malpractice risk can alter how physicians practice medicine, he cautions that one study is not enough. "I hope [the article] opens some eyes and keeps the dialogue going," Rodgers said, "but we need more and more studies like [this one]."

The study was supported by a grant from the National Heart, Lung, and Blood Institute. The authors have disclosed no relevant financial relationships.

JAMA Cardiol. Published online June 6, 2018. Full text

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