Skip to main content
NCBI home page
Health Services Research logoLink to Health Services Research
. 2019 Apr 16;54(4):851–859. doi: 10.1111/1475-6773.13157

The impact of tort reform on defensive medicine, quality of care, and physician supply: A systematic review

Rajender Agarwal 1,2,✉, Ashutosh Gupta 1,3, Shweta Gupta 1,4
PMCID: PMC6606555  PMID: 30993688

Abstract

Objective

To evaluate the impact of tort reform on defensive medicine, quality of care, and physician supply.

Data Sources

Empirical, peer‐reviewed English‐language studies in the MEDLINE and HeinOnline databases that evaluated the association between tort reform and our study outcomes.

Study Design

We performed a systematic review in accordance with the PRISMA guidelines.

Data Collection/Extraction Methods

Title and abstract screening was followed by full‐text screening of relevant citations. We created evidence tables, grouped studies by outcome, and qualitatively compared the findings of included studies. We assigned a higher rating to study designs that controlled for unobservable sources of confounding.

Principal Findings

Thirty‐seven studies met screening criteria. Caps on damages, collateral‐source rule reform, and joint‐and‐several liability reform were the most common types of tort reform evaluated in the included studies. We found that caps on noneconomic damages were associated with a decrease in defensive medicine, increase in physician supply, and decrease in health care spending, but had no effect on quality of care. Other reform approaches did not have a clear or consistent impact on study outcomes.

Conclusions

We conclude that traditional tort reform methods may not be sufficient for health reform and policy makers should evaluate and incorporate newer approaches.

Keywords: defensive medicine, noneconomic damages, systematic review, tort reform

1. INTRODUCTION

The frequency of medical malpractice claims has increased since the 1960s. In the United States, medical malpractice law has traditionally been under the auspices of the individual states and not the federal government. A rise in medical malpractice claims and liability premiums resulted in major insurers leaving states or dropping medical malpractice as a line of coverage. High malpractice risk environments were shown to deter physicians from practicing in such areas. The paradox is that the litigation phenomenon was fueled by an expectation of perfection even as the technical quality of medical care increased.1, 2 In response to this, many states adopted a variety of administrative and legislative actions, collectively called ‘tort reform’. California was the first state to limit noneconomic damages to $250 000. Following this, more than half the states capped damages within a limit. State tort reform gained momentum in the 1980s and 1990s with significant number of states passing several reforms. The reforms included lowered cap on punitive damages, caps on noneconomic damages, abolishing or limiting joint‐and‐several liability.3, 4 These tort reform measures are summarized in Table 1.

Table 1.

Description of tort reform options evaluated in study

Reform Description
Caps on damages Limits placed on compensation awarded for noneconomic losses (pain and suffering), economic losses, or both.
Collateral‐source rule reform If an injured plaintiff has received compensation from other sources, the damages that a defendant who is found liable must pay are reduced by that amount.
Joint‐and‐several liability reform Limits the financial liability of each defendant to the percentage of fault the jury allocates to that defendant.
Mandatory periodic payments Allows insurers to pay malpractice awards over a period of time rather than in a lump sum.
Caps on contingency fees Limits the amount that a plaintiff can contractually pay an attorney as contingency fees.
Patient compensation fund Additional malpractice liability insurance provided by government to doctors
No mandatory prejudgment interest No requirement to pay accrued interest on damages from either the date of injury or the date of filing.
Open in a new tab

Medical malpractice law deters physicians from a suboptimal practice of medicine and aims to compensate patients who are victims of physician negligence.5, 6 However, existing evidence does not support the notion that the threat of medical malpractice improves quality of care or patient outcomes.7 On the other hand, it may increase ‘defensive medicine’ among physicians practicing in high‐risk specialties,8 indirectly increasing health care costs. The rising costs of defensive medicine, which are estimated to be about $50 billion, provide a compelling reason to legislators to push for reform.9, 10 Defensive medicine is defined as the ordering of treatments, tests, referrals, and procedures primarily to protect physicians from liability, rather than as a benefit to patients.1, 11 The logic of tort reform is to reduce litigation risk and malpractice insurance rates for providers and insurers, and by extension the pressure for defensive medical practice.12

Medical malpractice reform has periodically risen to the top of the policy agenda in multiple states at various points since the latter part of the 20th century. As a policy response to address the medical malpractice crisis, health care providers, insurance companies, and legislators have advocated for caps on noneconomic damages and other tort reforms.13 A recent bill “Protecting Access to Care Act of 2017” (H.R. 1215) was narrowly passed in the House on 28 June 2017.9 This bill seeks to federalize tort reforms that are already adopted by several states. It would cap noneconomic damages in malpractice litigation at $250 000, limit lawyers’ fees in health care lawsuits, and protect providers from product‐liability lawsuits involving an approved drug or medical device.

The medical, legal, and economic literature contains considerable evidence on caps on noneconomic damages and other proposed reforms. A report on malpractice reform prepared for the Medicare Payment Advisory Commission suggested that caps reduce some defensive practices but have no effect on the quality of care.14 Observers also believe that tort reform will be necessary but not sufficient for cost containment.11 In order to objectively assess such evidence, we performed a systematic review of methodologically rigorous studies that evaluated the impact of tort reform on key outcomes. Our results will be relevant to policy makers and other stakeholders in making an informed decision on this issue.

2. METHODS

We performed our systematic review in accordance with the Preferred Reporting Items for Systematic Reviews and Meta‐Analyses (PRISMA) guidelines.15

2.1. Study inclusion criteria

We included empirical, peer‐reviewed English‐language studies that evaluated the association between tort reform and our prespecified study outcomes. Randomized controlled trials on this topic are not feasible and have not been performed. We included empirical analyses that controlled for observed and unobserved confounders and excluded studies that only reported unadjusted comparisons. We included studies that evaluated one or more reform options as described by Kessler and McClellan in the earliest paper that assessed the effect of tort reform on defensive medicine.16 Table 1 summarizes these reforms. The outcomes of interest were defensive medicine, quality of care, and physician supply. These outcomes have been described as ‘care‐related measures’ for assessing the performance of medical liability reforms.1 In addition, we also evaluated the impact of reform on health care spending. An evaluation of ‘liability measures’ such as claims frequency, indemnity costs, overhead costs, and malpractice insurance costs1 was beyond the scope of our review. Lastly, we excluded non–peer‐reviewed letters to the editor, policy briefs, executive summaries of governmental reports, commentaries, and Internet‐based publications.

2.2. Identification and selection of studies

We searched MEDLINE and HeinOnline from inception to March 2018 (Table 2). Title and abstract screening was done by two independent reviewers. This was followed by full‐text screening of relevant citations by two reviewers working independently. Disagreements were resolved through consensus. Reference lists of included studies were screened to identify any additional studies that met inclusion criteria.

Table 2.

Search strategy in OVID MEDLINE

1. Malpractice/
2. malpractice.mp.
3. (tort adj reform$).mp.
4. (non?economic adj damage$).mp.
5. (damage$ adj cap$).mp.
6. or/1‐5
7. Defensive Medicine/
8. (defensive adj medicine).mp.
9. utilization.mp.
10. (referral adj behavior).mp.
11. ((health$ adj expenditure) or (health$ adj cost$)).mp.
12. (patient adj safety).mp.
13. (medical adj errors).mp.
14. (health adj care adj quality).mp.
15. (physician adj5 supply).mp.
16. (doctor$ adj5 supply).mp.
17. (practice adj location).mp.
18. (physician adj migration).mp.
19. (health adj access).mp.
20. (health adj insurance).mp.
21. or/7‐20
22. 6 and 21
23. limit 22 to English language
Open in a new tab

2.3. Data extraction and synthesis

We created evidence tables by extracting relevant information on study design, population, malpractice reform evaluated by the study, and the outcomes of interest. We grouped studies by outcome and qualitatively compared the findings of included studies. Our systematic review was aided by a conceptual model of the intended and unintended consequences of tort reform on study outcomes. In theory, tort reform measures would curb defensive medical practices, thus decreasing health care utilization and costs. States that enact tort reform would increase physician supply and deter physicians from leaving states with unfavorable malpractice environment, particularly for high‐risk specialties. On the other hand, there is a potential to attract physicians with higher malpractice rates. Lastly, tort reform measures would have conflicting effects on the technical quality of care. While they would help patient safety efforts by encouraging physicians to be transparent about medical errors, the reduced malpractice risk could lead to negligent care.

2.4. Risk of bias assessment

The tools currently available to assess the risk of bias in nonrandomized studies17, 18 are not sufficiently developed to account for selection on unobservable confounders. Work is currently underway to incorporate specific evaluation questions into the Cochrane risk of bias tool for nonrandomized studies.19 Rigorous nonrandomized studies use design‐based approaches to control for unobservable sources of confounding (eg, difference‐in‐differences analyses, instrumental variables estimation, interrupted time series, natural experiments, and regression discontinuity designs).19 We assigned a higher rating to such study designs and highlighted them while reporting the results.

3. RESULTS

3.1. Search results

Our literature review identified 3862 unique citations. Seventy articles were considered potentially relevant based on title and abstract screening, and full texts were obtained for these studies. Our detailed review of full‐text studies ultimately yielded 37 articles that met our inclusion criteria.12, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54 The PRISMA flow diagram is shown in Figure 1.

Figure 1.

Figure 1

Open in a new tab

PRISMA flow diagram

3.2. Study characteristics

Caps on total damages, caps on noneconomic damages, caps on punitive damages, collateral‐source rule reform, and joint‐and‐several liability reform were the most common types of tort reform evaluated in the included studies. Seventeen studies (46 percent) used a difference‐in‐differences specification that controlled for unobservable confounders.12, 16, 27, 28, 29, 30, 32, 34, 35, 36, 38, 40, 42, 43, 44, 45, 46 Twelve studies evaluated the impact of tort reform on defensive medicine by assessing health care utilization20, 22, 23, 25, 26, 28, 37, 38, 47, 49, 51, 52 of which two (17 percent) used a difference‐in‐differences specification.28, 38 Thirteen studies studied quality of care16, 20, 21, 26, 28, 29, 33, 34, 35, 37, 41, 48, 54 of which five (38 percent) used a difference‐in‐differences specification.16, 28, 29, 34, 35 Health care spending was evaluated by eight studies12, 16, 20, 31, 35, 43, 44, 48 of which five (63 percent) used a difference‐in‐differences specification.12, 16, 35, 43, 44 Thirteen studies evaluated the association of tort reform with physician supply24, 27, 30, 32, 34, 36, 39, 40, 42, 45, 46, 50, 53 of which nine (69 percent) used a difference‐in‐differences specification.12, 16, 27, 28, 29, 30, 32, 34, 35, 36, 38, 40, 42, 43, 44, 45, 46 The study characteristics are summarized in Table 3 and presented in detail in Table S1.

Table 3.

Selected characteristics of 37 studies that examined the impact of tort reform

Characteristic Number of studies Percent of studies
Analysis
Difference‐in‐differences specification 17 45.9
Other    
Tort reform option
Caps on total damages 17 45.9
Caps on noneconomic damages 22 59.5
Caps on punitive damages 17 45.9
Collateral‐source rule reform 21 56.8
Joint‐and‐several liability reform 22 59.5
Mandatory periodic payments 14 37.8
Caps on contingency fees 12 32.4
Patient compensation fund 9 24.3
No mandatory prejudgment interest 5 13.5
Outcomes
Defensive medicine 12 32.4
Quality of care 13 35.1
Physician supply 13 35.1
Health care costs 8 21.6
Open in a new tab

3.3. Outcomes

3.3.1. Defensive medicine (health care utilization)

Nine studies evaluated the impact of caps on noneconomic damages on defensive medicine by assessing health care utilization.20, 22, 25, 26, 28, 38, 47, 51, 52 Caps on noneconomic damages were associated with a significant reduction in health care utilization in five studies.25, 28, 38, 51, 52 Cotet reported a reduction in hospital admissions (2.5 percent), surgeries (3.5 percent), and outpatient visits (4.5 percent).25 Frakes observed a significant reduction in the episiotomy rate (4.6 percent) and maternal length of stay (3.9 percent) but no effect on C‐section rate.28 Li et al38 saw that caps on noneconomic damages significantly reduced the probability of radiography ordering by primary care providers (1.0 percent). Xu and colleagues showed that noneconomic damages caps of $250 000 were associated with a 32 percent lower likelihood of specialist referrals. There was no association with caps at higher amounts.51 Yang et al52 found that rates of vaginal birth after C‐section were significantly higher (8.0 percent) and C‐section rates were significantly lower (1.5 percent) with caps on noneconomic damages. In contrast, two studies showed that caps on noneconomic damages inadvertently encouraged high‐risk practices in obstetrics.26, 47 Roth observed 39 percent higher odds of early term induction of labor,47 while Currie and Macleod saw a significant increase in the incidence of C‐section (5.0 percent).26 A recent study by Cano‐Urbina and Montanera argued that Currie and Macleod assumed all births with an unknown method of delivery to be vaginal. When the authors performed the analysis again by dropping the unstated births and examining only the births with a confirmed method of delivery, there was no effect on C‐section rates.22 Avraham and Schanzenbach showed an equivocal impact of noneconomic damages caps on coronary revascularization. While there was a significant decline in the rate of percutaneous transluminal coronary angiography, the rate of coronary artery bypass graft was significantly increased.20

Six studies evaluated the impact of caps on punitive damages on health care utilization which may be indicative of defensive medicine.22, 25, 26, 28, 38, 47 Li et al38 found that caps on punitive damages were associated with a significant reduction in radiography orders by specialist physicians (6.1 percent). Similar to caps on noneconomic damages, caps on punitive damages were associated with high‐risk obstetric practices in two studies,26, 47 although it may have been related to coding of the data in the study by Currie and MacLeod26 as discussed above. Caps on punitive damages were not associated with defensive medicine in three studies.22, 25, 28

Three studies evaluated the impact of caps on total damages on health care utilization which may be indicative of defensive medicine.23, 37, 49 Konety et al37 observed that patients in states with caps were 17 percent more likely to undergo radical cystectomy (P < 0.01), a potentially life‐saving but high‐risk procedure for bladder cancer. Carrier and colleagues found that caps on damages were associated with significantly greater use of supplemental testing, emergency room visits, and imaging utilization. The authors noted that this paradoxical finding might indicate reverse causality (eg, a high prevalence of defensive medicine might make a state more likely to adopt a damages cap).23 There was no association between caps on damages and defensive medicine in one study.49

Seven studies evaluated the impact of collateral‐source rule reform on health care utilization of which six studies showed no association.22, 25, 26, 38, 49, 52 Frakes observed a significant increase in the maternal length of stay (4.7 percent) but no effect on episiotomy or C‐section rate.28 Five studies evaluated the impact of joint‐and‐several liability reform on defensive medicine.22, 25, 26, 38, 52 Currie and Macleod found a significant reduction in C‐section rate (7.0 percent) with joint‐and‐several liability reform.26 However, the recent follow‐up study found no difference after dropping the unstated births.22 Two other studies found no association.38, 52 Cotet found that joint‐and‐several liability reform was significantly associated with reduced surgeries but increased outpatient visits.25 Three studies evaluated the impact of periodic payment reform on health care utilization of which two studies showed a reduction in diagnostic imaging utilization38, 49 and one study found no effect on the rates of delivery methods.52 Two studies evaluated the impact of caps on contingency fees on health care utilization.49, 52 Smith‐Bindman et al49 observed a significant increase (67 percent greater odds) in diagnostic imaging utilization while Yang et al52 found no effect on the rates of delivery methods.

3.3.2. Defensive medicine (health care spending)

Direct reforms (caps on damages, abolition of punitive damages, collateral‐source rule reform, and no mandatory prejudgment interest) were associated with substantial reductions in hospital expenditures in two studies (4.2 percent and 5.8 percent, respectively)16, 35 but no change in Medicare payments for several conditions in one study.48 Caps on noneconomic damages were associated with a significant reduction in cost‐to‐charge ratios in one study20 and a significant reduction in average per capita health expenditure (3.4 percent) in another study.31 There was no effect on health expenditures with caps on noneconomic damages in one study.12 Paik et al43 showed that caps on total damages and caps on punitive damages were associated with a significant increase (4 percent‐5 percent) in Medicare part B spending. Joint‐and‐several liability was associated with a significant reduction in average per capita health expenditure in one study.31 Yu et al12 showed that the average annual expenditures in states with caps on attorney contingency fees increased significantly less than in states without the reform.

3.3.3. Quality of care

Eight studies evaluated the impact of caps on noneconomic damages on quality of care.20, 21, 26, 28, 29, 33, 34, 41 Avraham and Schanzenbach20 found that noneconomic damages were associated with a significant decrease in mortality for those aged 45‐65 years (about 1.4 percent), but no significant difference for those aged 65‐90 years. Currie and Macleod observed that caps on noneconomic damages were associated with a significant increase in preventable complications of labor (6.0 percent).26 Billimoria et al21 found no association between noneconomic damages caps and process of care measures, imaging efficiency, patient experience, 30‐day outcomes, and patient safety indicators in acute care general hospitals. Frakes and Jena29 observed no association between caps on noneconomic damages and inpatient mortality, avoidable hospitalizations, preventable delivery complications, and cancer screening rate. Other studies found no association with APGAR scores,28 medical errors related to birth or obstetric trauma,33 infant mortality,34 or postoperative complications.41

Seven studies evaluated the impact of caps on punitive damages on quality of care.16, 26, 28, 29, 33, 35, 48 Frakes and Jena29 observed a significant reduction in maternal trauma rate, but no effect on mortality, avoidable hospitalizations, delivery complications, or cancer screening. The rest of the studies showed no association with preventable complications of labor,26 APGAR scores,28 medical errors related to birth or obstetric trauma,33 mortality,16, 33, 35, 48 or readmissions.16, 35 Six studies evaluated the impact of caps on total damages on quality of care.16, 34, 35, 37, 48, 54 Konety et al37 observed a 13 percent lower likelihood of death (P < 0.01) among patients with bladder cancer, and the rest of the studies found no association.

Nine studies evaluated the impact of collateral‐source rule reform on quality of care.16, 26, 28, 29, 33, 34, 35, 48, 54 Iziuka33 observed a significant association between collateral‐source rule reform and increased birth trauma. Klick and Stratman found a significant increase in black infant. Mortality (5 percent‐7 percent).34 The remaining studies found no association. Ten studies evaluated the impact of joint‐and‐several liability reform on quality of care.16, 26, 28, 29, 33, 34, 35, 41, 48, 54 Currie and Macleod26 observed a significant reduction in the preventable complications of labor (13.0 percent), and Iizuka33 saw a significant reduction in obstetric trauma. The remaining studies did not find an association. Quality of care was not impacted by mandatory periodic payments,16, 34, 35, 41, 48, 54 caps on contingency fees,16, 21, 34, 35, 41, 48, 54 patient compensation fund,16, 21, 34, 35, 41, 48 or abolition of mandatory prejudgment interest.16, 35, 48

3.3.4. Physician supply

Eight studies evaluated the impact of caps on noneconomic damages on physician supply27, 30, 32, 34, 39, 45, 46, 50 of which six studies observed a significant increase in physician supply.27, 30, 34, 45, 46, 50 Two of these studies saw this increase for high‐risk specialties,30, 34 and one study observed it only among high‐risk physicians less than 35 years of age.46 Encinosa and Hellinger27 reported that the effect of caps on noneconomic damages on physician supply was larger in rural counties (3.2 percent). Leiber showed that there was a significant reduction in physician supply (4.4 percent) in a state when a neighboring state passed a cap on noneconomic damages. Further, the malpractice rate in a state declined when a neighboring state passed reform suggesting that physicians with high malpractice rates left the state.39 Hyman et al32 found no evidence of a postreform rise in Texas physicians compared to no‐cap states.

Kessler et al36 showed that direct reforms (caps on damages, abolition of punitive damages, collateral‐source rule reform, and no mandatory prejudgment interest) were associated with an increase in physician supply (2.4 percent). Two studies that evaluated the impact of punitive damages on physician supply found no association.27, 39 Six studies evaluated the impact of caps on total damages on physician supply.24, 34, 39, 40, 42, 53 Matsa found an increased physician supply in the most rural areas (4 percent‐7 percent).40 Chou and Lo Sasso24 observed that a new surgeon was more likely to choose a state that featured a state damage award cap, but there was no significant association with the practice choice of obstetricians/gynecologists or primary care providers. The remaining studies observed no association of damage caps with physician supply. Five studies found that collateral‐source rule reform was not associated with an increase in physician supply.27, 34, 39, 45, 53

Perry and Clark45 found that for states that instituted joint‐and‐several liability or patient compensation fund, the probability of the physician leaving the state was significantly reduced. Other studies showed no association between physician supply and joint‐and‐several liability reform,27, 34, 36, 39, 53 mandatory periodic payments,34, 36, 45, 53 caps on contingency fees,34, 36, 53 and patient compensation fund.34, 36

4. DISCUSSION

We found that caps on noneconomic damages were associated with a decrease in defensive medicine, increase in physician supply, and decrease in health care spending, but had no effect on the quality of care. Caps on total damages, caps on punitive damages, collateral‐source rule reform, joint‐and‐several liability reform, and mandatory periodic payment reform did not have a clear or consistent impact on our study outcomes. There was insufficient evidence on caps on contingency fees, patient compensation fund, and prejudgment interest.

Legislative activity for the enactment of traditional tort reform has diminished over the past few years. The discussion on medical liability has shifted from controlling liability costs to improving patient safety and reducing waste in health care, and the tort system has been linked with unnecessary costs. There has been a recent interest in nontraditional approaches to liability reform such as communication‐and‐resolution programs and disclosure‐and‐offer approaches given the recent introduction of H.R. 1215.1, 9 Our systematic review shows that most caps on noneconomic damages do not impact quality of care, and other reform approaches did not have a clear impact on outcomes. This suggests that traditional tort reform may not be sufficient and newer methods should be considered.

Previous studies have looked at the effect of changes in the negligence standard on physician practice patterns. Waxman et al55 found that change in the malpractice standard for emergency physicians in three states to gross negligence had no significant effect on the intensity of practice. Other studies have found that requiring physicians to follow national standards as opposed to local standards leads to standardization of clinical practices.56, 57

Recent approaches to liability reform aim to discourage defensive medicine while fostering process improvement both at the physician and at the system level. ‘Alternative dispute resolution’ methods allow physicians and health systems to acknowledge openly when errors have occurred and offer reasonable compensation to injured parties. It is believed that such an approach facilitates open communication, transparency, and trust.5, 58, 59 Certain health care institutions have espoused this approach by developing communication‐and‐resolution programs.60 Enterprise liability’ would retain the current malpractice system but the physician would not be named as the defendant. The hospital or health insurance plan under which the physician practices would assume the liability for medical negligence. It is unclear whether the psychological benefits of not being named in a lawsuit would lead physicians to practice less defensively. Several states have developed programs in which clinical practice guidelines are used as the standard of care replacing expert opinion. Other states have designated certain avoidable adverse medical conditions as compensable under a no‐fault system.

The Agency for Healthcare Research and Quality has funded seven demonstration projects and thirteen planning grants to evaluate improvements in the liability system, physician‐patient communication, and adverse event monitoring.1 Recent legislation has also proposed reform ideas such as safe harbors for providers who adhere to clinical practice guidelines, a version of administrative ‘health courts’ and protection of apologies from use in malpractice litigation.9 However, there is limited evidence on such approaches at the present time.

This systematic review had notable limitations worth mentioning. First, no randomized controlled trials exist that examine the impact of tort reform on our study outcomes. This is likely due to the methodological and logistical challenges inherent in such studies. However, we focused on studies that used econometric techniques designed to minimize selection bias. Second, the methods of several included studies lacked connection to clinical expertise and measurable physician decision making in specific clinical contexts. Third, policy endogeneity—policy changes in response to changes in variables that are our outcomes of interest—may have affected the results of the studies. Most of the studies employ fixed effects or difference‐in‐difference estimators that rely on within state variation in the policy and outcome variables. States with high malpractice premiums and health care costs are more likely to adopt tort reform. Similarly, an increase in defensive medical practices and dwindling physician supply may push states to enact tort reform. Empirical evidence on the impact of policy endogeneity on tort reform measures is limited at the current time and should be evaluated in future studies.12 Finally, less than half of the included studies used study designs aimed at minimizing the effects of unobservable confounders. The studies evaluating the effect of tort reform on health care utilization were of poorer quality with only 17 percent of the studies using a difference‐in‐differences design.

Our systematic review summarizes the published evidence on the effects of the various tort reform measures on key outcomes. We found that caps on noneconomic damages were associated with a decrease in health care utilization and spending, and an increase in physician supply, but had no effect on the quality of care. The other tort reform methods had limited impact on outcomes or insufficient evidence. As Congress considers the issue of federally mandated tort reform, our review suggests that traditional tort reform approaches may not be enough and policy makers should incorporate newer approaches to liability reform. We have also highlighted the limitations of the evidence base to help academic researchers guide future research efforts.

Supporting information

 

Click here for additional data file. (1.4MB, pdf)

 

Click here for additional data file. (22.5KB, docx)

ACKNOWLEDGMENTS

Joint Acknowledgment/Disclosure Statement: All work related to this manuscript was done by the authors on their own time, unrelated to their primary employment as practicing physicians. Our employers are hospitals and physician practice groups with no research or advocacy interest in the topic. Center for Health Reform, the non‐profit that the authors are affiliated with, performs health services research but does not yet have any funding for the same. The only material support needed for the study was access to biomedical databases which the lead author (Rajender Agarwal) had due to his enrollment with Indiana University's Kelley School of Business as MBA student.

Disclosures: None.

Agarwal R, Gupta A, Gupta S. The impact of tort reform on defensive medicine, quality of care, and physician supply: A systematic review. Health Serv Res. 2019;54:851‒859. 10.1111/1475-6773.13157

REFERENCES

  • 1. Kachalia A, Mello MM. New directions in medical liability reform. N Engl J Med. 2017;364(16):1564‐1572. [DOI] [PubMed] [Google Scholar]
  • 2. Wiet MJ. Medical malpractice tort reform: balancing the interests of providers, patients and public. Am J Otol. 1989;10(3):208‐214. [PubMed] [Google Scholar]
  • 3. Bal BS. An introduction to medical malpractice in the United States. Clin Orthop Relat Res. 2009;467(2):339‐347. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 4. Bovbjerg RR. Malpractice crisis and reform. Clin Perinatol. 2005;32(1):203‐233. [DOI] [PubMed] [Google Scholar]
  • 5. Kass JS, Rose RV. Medical malpractice reform–historical approaches, alternative models, and communication and resolution programs. AMA J Ethics. 2016;18(3):299‐310. [DOI] [PubMed] [Google Scholar]
  • 6. Studdert DM, Mello MM, Brennan TA. Medical malpractice. N Engl J Med. 2004;350(3):283‐292. [DOI] [PubMed] [Google Scholar]
  • 7. Minami CA, Chung JW, Holl JL, Bilimoria KY. Impact of medical malpractice environment on surgical quality and outcomes. J Am Coll Surg. 2014;218(2):271‐278.e279. [DOI] [PubMed] [Google Scholar]
  • 8. Studdert DM, Mello MM, Sage WM, et al. Defensive medicine among high‐risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293(21):2609‐2617. [DOI] [PubMed] [Google Scholar]
  • 9. Mello MM, Kachalia A, Studdert DM. Medical liability ‐ prospects for federal reform. N Engl J Med. 2017;376(19):1806‐1808. [DOI] [PubMed] [Google Scholar]
  • 10. Mello MM, Chandra A, Gawande AA, Studdert DM. National costs of the medical liability system. Health Aff (Millwood). 2010;29(9):1569‐1577. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 11. Hermer LD, Brody H. Defensive medicine, cost containment, and reform. JGIM. 2010;25(5):470‐473. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 12. Yu H, Greenberg M, Haviland A. The impact of state medical malpractice reform on individual‐level health care expenditures. Health Serv Res. 2017;52(6):2018‐2037. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 13. Mello MM, Studdert DM, Brennan TA. The new medical malpractice crisis. [Erratum appears in N Engl J Med. 2003 Sep 4;349(10):1010]. N Engl J Med. 2003;348(23):2281‐2284. [DOI] [PubMed] [Google Scholar]
  • 14. Mello MM, Kachalia A. Medical Malpractice: Evidence on reform. Alternatives and claims involving elderly patients. A report prepared for the Medicare Payment Advisory Commission. 2016. A report prepared for the Medicare Payment Advisory Commission. 2016. http://www.medpac.gov/docs/default-source/reports/dec16_medicalmalpractice_medpac_contractor.pdf. Accessed 10 May, 2018.
  • 15. Liberati A, Altman DG, Tetzlaff J, et al. The PRISMA statement for reporting systematic reviews and meta‐analyses of studies that evaluate healthcare interventions: explanation and elaboration. BMJ. 2009;339:b2700. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 16. Kessler D, McClellan M. Do doctors practice defensive medicine? Q J Econ. 1996;111(2):353‐390. [Google Scholar]
  • 17. Sterne JA, Hernan MA, Reeves BC, et al. ROBINS‐I: a tool for assessing risk of bias in non‐randomised studies of interventions. BMJ. 2016;355:i4919. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 18. Wells GA, Shea B, O'Connell D, et al. The Newcastle‐Ottawa Scale (NOS) for assessing the quality of nonrandomised studies in meta‐analyses. 2013. http://www.ohri.ca/programs/clinical_epidemiology/oxford.asp. Accessed 27 January, 2017.
  • 19. Waddington H, Aloe AM, Becker BJ, et al. Quasi‐experimental study designs series‐paper 6: risk of bias assessment. J Clin Epidemiol. 2017;89:43‐52. [DOI] [PubMed] [Google Scholar]
  • 20. Avraham R, Schanzenbach M. The impact of tort reform on intensity of treatment: evidence from heart patients. J Health Econ. 2015;39:273‐288. [DOI] [PubMed] [Google Scholar]
  • 21. Bilimoria KY, Chung JW, Minami CA, et al. Relationship between state malpractice environment and quality of health care in the United States. Jt Comm J Qual Patient Saf. 2017;43(5):241‐250. [DOI] [PubMed] [Google Scholar]
  • 22. Cano‐Urbina J, Montanera D. Do tort reforms impact the incidence of birth by cesarean section? A reassessment. Int J Health Econ Manag. 2017;17(1):103‐112. [DOI] [PubMed] [Google Scholar]
  • 23. Carrier ER, Reschovsky JD, Katz DA, Mello MM. High physician concern about malpractice risk predicts more aggressive diagnostic testing in office‐based practice. Health Aff (Millwood). 2013;32(8):1383‐1391. [DOI] [PubMed] [Google Scholar]
  • 24. Chou CF, Lo Sasso AT. Practice location choice by new physicians: the importance of malpractice premiums, damage caps, and health professional shortage area designation. Health Serv Res. 2009;44(4):1271‐1289. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 25. Cotet AM. The impact of noneconomic damages cap on health care delivery in hospitals. Am Law Econ Rev. 2012;14(1):192‐234. [Google Scholar]
  • 26. Currie J, MacLeod WB. First do no harm? Tort Reform and birth outcomes. Q J Econ. 2008;123(2):795‐830. [Google Scholar]
  • 27. Encinosa WE, Hellinger FJ. Have state caps on malpractice awards increased the supply of physicians? Health Aff (Millwood). 2005;24:250‐258. [DOI] [PubMed] [Google Scholar]
  • 28. Frakes M. Defensive medicine and obstetric practices. J Empir Leg Stud. 2012;9(3):457‐481. [Google Scholar]
  • 29. Frakes M, Jena AB. Does medical malpractice law improve health care quality? J Public Econ. 2016;143:142‐158. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 30. Helland E, Seabury SA. Tort reform and physician labor supply: a review of the evidence. Int Rev Law Econ. 2015;42(Supplement C):192‐202. [Google Scholar]
  • 31. Hellinger FJ, Encinosa WE. The impact of state laws limiting malpractice damage awards on health care expenditures. Am J Public Health. 2006;96(8):1375‐1381. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 32. Hyman DA, Silver C, Black B, Paik M. Does tort reform affect physician supply? Evidence from Texas. Int Rev Law Econ. 2015;42(Supplement C):203‐218. [Google Scholar]
  • 33. Iizuka T. Does higher malpractice pressure deter medical errors? J Law Econ. 2013;56(1):161‐188. [Google Scholar]
  • 34. Klick J, Stratmann T. Medical malpractice reform and physicians in high‐risk specialties. J Leg Stud. 2007;36(S2):S121‐S142. [Google Scholar]
  • 35. Kessler D, McClellan M. Malpractice law and health care reform: optimal liability policy in an era of managed care. J Public Econ. 2002;84(2):175‐197. [Google Scholar]
  • 36. Kessler DP, Sage WM, Becker DJ. Impact of malpractice reforms on the supply of physician services. JAMA. 2005;293(21):2618‐2625. [DOI] [PubMed] [Google Scholar]
  • 37. Konety BR, Dhawan V, Allareddy V, Joslyn SA. Impact of malpractice caps on use and outcomes of radical cystectomy for bladder cancer: data from the surveillance, epidemiology, and end results program. J Urol. 2005;173(6):2085‐2089. [DOI] [PubMed] [Google Scholar]
  • 38. Li S, Dor A, Deyo D, Hughes DR. The impact of state tort reforms on imaging utilization. J Am Coll Radiol. 2017;14(2):149‐156. [DOI] [PubMed] [Google Scholar]
  • 39. Lieber EMJ. Medical malpractice reform, the supply of physicians, and adverse selection. J Law Econ. 2014;57(2):501‐527. [Google Scholar]
  • 40. Matsa D. Does malpractice liability keep the doctor away? Evidence from tort reform damage caps. J Leg Stud. 2007;36(S2):S143‐S182. [Google Scholar]
  • 41. Minami CA, Sheils CR, Pavey E, et al. Association between state medical malpractice environment and postoperative outcomes in the United States. J Am Coll Surg. 2017;224(3):310‐318.e312. [DOI] [PubMed] [Google Scholar]
  • 42. Paik M, Black B, Hyman DA. Damage caps and the labor supply of physicians: evidence from the third reform wave. Am Law Econ Rev. 2016;18(2):463‐505. [Google Scholar]
  • 43. Paik M, Black B, Hyman DA. Damage caps and defensive medicine, revisited. J Health Econ. 2017;51:84‐97. [DOI] [PubMed] [Google Scholar]
  • 44. Paik M, Black BS, Hyman DA, Silver C. Will tort reform bend the cost curve? Evidence from Texas. J Empir Leg Stud. 2012;9(2):173‐216. [Google Scholar]
  • 45. Perry JJ, Clark C. Medical malpractice liability and physician migration. Bus Econ. 2012;47(3):202‐213. [Google Scholar]
  • 46. Pesko MF, Cea M, Mendelsohn J, Bishop TF. The effects of malpractice non‐economic damage caps on the supply of physician labor: heterogeneity by physician age and risk. Int Rev Law Econ. 2017;50:7‐14. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 47. Roth LM. What's the rush? Tort laws and elective early‐term induction of labor. J Health Soc Behav. 2016;57(4):486‐501. [DOI] [PubMed] [Google Scholar]
  • 48. Sloan FA, Shadle JH. Is there empirical evidence for “Defensive Medicine”? A reassessment J Health Econ. 2009;28(2):481‐491. [DOI] [PubMed] [Google Scholar]
  • 49. Smith‐Bindman R, McCulloch CE, Ding A, Quale C, Chu PW. Diagnostic imaging rates for head injury in the ED and states’ medical malpractice tort reforms. Am J Emerg Med. 2011;29(6):656‐664. [DOI] [PubMed] [Google Scholar]
  • 50. Stewart RM, West M, Schirmer R, Sirinek KR. Tort reform is associated with significant increases in Texas physicians relative to the Texas population. J Gastrointest Surg. 2013;17(1):168‐177. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 51. Xu X, Spurr SJ, Nan B, Fendrick AM. The effect of medical malpractice liability on rate of referrals received by specialist physicians. Health Econ Policy Law. 2013;8(4):453‐475. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 52. Yang YT, Mello MM, Subramanian SV, Studdert DM. Relationship between malpractice litigation pressure and rates of cesarean section and vaginal birth after cesarean section. Med Care. 2009;47(2):234‐242. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 53. Yang YT, Studdert DM, Subramanian SV, Mello MM. A longitudinal analysis of the impact of liability pressure on the supply of obstetrician‐gynecologists. J Empir Leg Stud. 2008;5(1):21‐53. [Google Scholar]
  • 54. Yang YT, Studdert DM, Subramanian SV, Mello MM. Does tort law improve the health of newborns, or miscarry? A longitudinal analysis of the effect of liability pressure on birth outcomes. J Empir Leg Stud. 2012;9(2):217‐245. [Google Scholar]
  • 55. Waxman DA, Greenberg MD, Ridgely MS, Kellermann AL, Heaton P. The effect of malpractice reform on emergency department care. N Engl J Med. 2014;371(16):1518‐1525. [DOI] [PubMed] [Google Scholar]
  • 56. Frakes M. The impact of medical liability standards on regional variations in physician behavior: evidence from the adoption of national‐standard rules. Am Econ Rev. 2013;103(1):257‐276. [Google Scholar]
  • 57. Frakes M, Frank MB, Seabury S. Do physicians respond to liability standards? J Inst Theor Econ. 2015;171(1):58‐77. [Google Scholar]
  • 58. Mello MM, Studdert DM, Kachalia A. The medical liability climate and prospects for reform. JAMA. 2014;312(20):2146‐2155. [DOI] [PubMed] [Google Scholar]
  • 59. Sohn DH, Sonny Bal B. Medical malpractice reform: the role of alternative dispute resolution. Clin Orthop Relat Res. 2012;470(5):1370‐1378. [DOI] [PMC free article] [PubMed] [Google Scholar]
  • 60. Mello MM, Boothman RC, McDonald T, et al. Communication‐and‐resolution programs: the challenges and lessons learned from six early adopters. Health Aff (Millwood). 2014;33(1):20‐29. [DOI] [PubMed] [Google Scholar]

Associated Data

This section collects any data citations, data availability statements, or supplementary materials included in this article.

Supplementary Materials

 

Click here for additional data file. (1.4MB, pdf)

 

Click here for additional data file. (22.5KB, docx)

Articles from Health Services Research are provided here courtesy of Health Research & Educational Trust

RESOURCES