Home / Cover Story / Malpractice crisis erodes access

Malpractice crisis erodes access

William M. Sage, M.D., J.D.

By Miriam Reisman

Two of the recent studies, funded by the Pew Charitable Trust as part of the Project on Medical Liability in Pennsylvania, found that “high-risk” patients may be not be getting the care they need because of defensive medicine and other physician practice changes induced by the threat of liability. A third Pew study found that states with financial limits on malpractice lawsuits saw slightly more growth in the number of doctors than states with no caps, such as Pennsylvania. A fourth study, from the U.S. Department of Health and Human Services’ Agency for Healthcare Research and Quality (AHRQ), also found that physician supply increased more in states with caps, particularly in rural areas.

Taken together, the studies seem to support claims of physician groups such as the Pennsylvania Medical Society that doctors avoid Pa. because they fear lawsuits, and that many physicians who remain in Pa. despite the litigious climate are making adaptive changes to protect against liability – changes that that may further exacerbate access problems. These new findings suggest that erosion of access to care is real, and that evidence of the erosion is not visible in the state’s aggregate number of physicians – a simplification that has thus far dominated the political debate on both sides.

Controversy Over Physician Numbers

The notion of a physician supply crisis in Pa. due to rising malpractice premiums surfaced a few years ago as doctors began threatening to leave the state, retire early or limit the scope of their practices. In 2002, Pa.’s medical community began an intense campaign pushing for various malpractice reforms, including a $250,000 cap on noneconomic jury awards. Doctors staged walkouts and protests. Hospitals sent busloads of staff to Harrisburg to lobby their legislators. And armed with research findings that showed a significant reduction of high-risk specialty physicians, the Pennsylvania Medical Society (PMS) promoted a list of “Disappearing Doctors” and sponsored a billboard advertisement reading, “Will the last doctor leaving Pennsylvania please turn off the X-ray machine?”

While the PMS’s ads and reports, based largely upon anecdotal evidence, helped create a compelling scenario and raise public concern about future access to medical care, there was little consensus by researchers on whether the number of physicians in Pa. was actually dropping as a direct result of the state’s malpractice crisis. The Pennsylvania Trial Lawyers Association (PaTLA) strongly argued that, despite claims to the contrary, physicians are not leaving the state in droves.

Disagreements over actual numbers came to a head in April 2004 when a front-page article in the Allentown Morning Call cited previously undisclosed figures and data from the state’s MCARE Fund indicating that not only are doctors not staging a mass exodus from Pa., but the number of doctors is on the rise, and “there probably are more physicians than ever.” The article accused the medical society of using scare tactics and making deceptive claims and it questioned the credibility of the physician community. The PMS accused the newspaper of misusing the data to distort the situation.

Not surprisingly, the controversy surrounding a physician exodus has fueled the ongoing political debate over both national and state-level tort reform, much of which has been centered on the potential effectiveness of caps on reducing malpractice premiums. This July, for the third consecutive year, the U.S. House of Representatives passed the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2005 (H.R. 5), a set of reforms that would, in part, cap non-economic damages at $250,000. The bill’s backers say it would help hold liability costs down and discourage physicians from leaving their practices, while opponents claim it would prevent victims from receiving fair compensation for their injuries. H.R. 5 currently awaits a vote in the Senate but is not expected to pass. Malpractice legislation has faced similar obstacles on the state level.

Meanwhile, as legislators and lobbyists continue to argue over the number of physicians, there has been little public debate over the actual effect that the malpractice crisis is having on access to care. That may change with the series of studies released in recent months that seem to show that Pa.’s current malpractice situation does have some impact on the quality and availability of patient care and that placing caps on jury awards may help improve access to needed medical services. The studies have received wide press coverage, and some groups, such as the PMS, have used the findings to assist in their state level advocacy efforts.

New Studies on Access

One of the studies released by the Project on Medical Liability in Pennsylvania suggests that the liability environment in Pa. is having significant effects on the supply of physician specialists and their willingness to perform high-risk procedures. Published in the July 2005 issue of Annals of Surgery, the study surveyed by mail 824 surgical and other high-risk specialists in Pa. about their practice decisions in response to rising liability costs, as well as their perceptions of the impact of the malpractice environment on patient access to care.

The survey found that a significant percentage of physicians (42 percent) have reduced or eliminated high-risk aspects of their practice and cited high insurance premiums as a major factor influencing their decision. An even greater percentage (50 percent) said they were likely to make such changes over the next two years. While only a small percentage of those physicians surveyed (seven percent) had definite plans to retire or relocate their practice out of state within the next two years, about a third said they were leaning in that direction.

According to lead author, Michelle Mello, J.D., Ph.D., the goal of the study was to try to add some fairly objective data to a policy debate that largely consisted of anecdotal evidence. “There is something here for both sides of the debate,” says Mello, who concluded from the research that, while physicians may not be leaving Pa. in large numbers as widely reported over the last few years, the malpractice crisis is having demonstrable effects on the supply of specialist physicians in affected areas and their scope of practice, which likely hampers patients’ access to care.

More than 80 percent of respondents reported at least some perceived increase in patients’ waiting times for appointments with specialists or surgical procedures, waiting times in the emergency room, and patients having to switch physicians. The survey showed that increased waiting times for specialist and surgical appointments were a bigger perceived problem in counties where liability costs were higher, despite the presumably higher baseline supply of specialists in the greater Philadelphia area.

Mello’s study also showed that access problems appear greatest for high-risk and lower-paying patients. Nearly two thirds of respondents reported at least some likelihood that their practice or hospital would reduce or eliminate high-risk services such as delivering babies and performing back surgery within the next two years, and over a third reported a high likelihood of avoiding high-risk patients such as obese persons and women with high-risk pregnancies. Over half of all solo practitioners indicated they definitely would or were very likely to reduce or eliminate both high-risk services and high-risk patients. In addition, in an effort to meet liability costs, more than half of specialists reported that their practice or hospital was at least somewhat likely to reduce the amount of charity work and to decline to treat new patients whose health insurance offered relatively low reimbursement rates.

Mello acknowledges that physicians’ self-reporting may have slightly biased the results of the study in a negative direction. “Physicians in Pa. have a vested political interest in this issue, so there is some tendency to exaggerate their intentions,” she says, adding that a follow-up study looking at actual changes in physician practices in Pa. has been completed and will be submitted for peer review within the next month. The follow-up study is a descriptive analysis of CAT Fund data from 1993 to 2002 on insurance policies held by over 47,000 physicians in 18 specialties with high and low liability risk. According to Mello, it looks at the number of practicing physicians in Pa., the proportion leaving practice, and the proportion restricting their scope of practice to exclude major and/or minor procedures in each year.

Areas for future research, says Mello, include a closer look at the prevalence and nature of the restriction in practice scope, as well as the extent to which physicians are shifting their practices from areas in Pa. that are underserved.

A Project on Medical Liability study, published in the June 1, 2005 issue of the Journal of the American Medical Association, finds that physicians’ anxiety over being sued causes most of them to practice defensive medicine, a term that includes practices such as ordering additional tests and refusing to treat particular patients – which are drivers of increasing health care costs and difficulties gaining access to specialists. The mail survey of over 800 Pennsylvania physicians, all of whom practiced in specialties at high risk of litigation (emergency medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology and radiology), found that more than 90 percent of the physicians engage in some form of defensive medicine.

“Defensive medicine could be equated with careful medicine, but the usual understanding is that it’s not a good thing,” says David Studdert, L.L.B., Sc.D., M.P.H., a researcher at the Harvard School of Public Health and lead author of the study. Among the most common behaviors reported by respondents were performing diagnostic procedures such as additional tests; using expensive imaging equipment when there is little, if any, medical benefit; and referring patients to other specialists for consultation. Physicians also reported prescribing more medications than medically indicated or suggesting unwarranted invasive procedures. These practices are referred to in the study as “assurance behavior” or “positive” defensive medicine. While extra care may at first seem harmless, says Studdert, unnecessary treatments, use of technology such as MRIs or other imaging, and invasive procedures such as biopsies drive up the cost of care.
Other types of practices, termed “avoidance behavior” or negative defensive medicine, affect not only cost but also access to quality care, says Studdert. According to the study, limiting the scope of clinical practice due to liability concerns is fairly common avoidance behavior among physicians. More than 40 percent of physicians surveyed said that since 2000 they had restricted their practices to exclude procedures prone to complications, such as trauma surgery, and avoided patients with complex medical problems or who appeared litigious.

The study methodology had several limitations, according to researchers, including the challenge of getting candid responses from physicians about specific kinds of defensive medicine and the difficulty distinguishing between liability-related motivators and other factors that influence clinical decision-making, such as physicians’ general desire to meet patients’ expectations. Researchers also acknowledged that physicians’ self-reports may be biased. In this case, says Studdert, respondents may have been biased towards giving a “socially desirable” response or achieving political goals, which may have led them to overstate the frequency of defensive medicine practices that seem wasteful but not harmful, and to understate the frequency of potentially dangerous practices.

The survey was carefully designed to minimize such bias, says Studdert. For example, physicians were asked about some types of practices where the socially desirable response was not obvious, such as invasive procedures. “Indicating that she orders a lot of extra tests and X-rays because of liability concerns may not be a difficult thing for a physician to say,” explains Studdert. “But indicating that she often refers patients for unnecessary procedures such as biopsies to cover herself is quite a different matter. Even if it is accurate, this is a difficult and painful thing for many physicians to report.”

The survey also improved upon other self-reporting surveys that use only fixed, generic categories or predetermined scenarios, which could influence the respondent’s answer. In this survey, explained Studdert, physicians were asked to specifically describe some of the defensive practices they had performed, allowing researchers to analyze their behavior as accurately as possible.

While the study showed that an overwhelming number of physicians practice defensive medicine, says Studdert, it did not measure the effect of this behavior on either quality of care or safety. “We can speculate what the quality/safety impact is, but that’s still a big unanswered question,” he says. “At the very least, these findings push that question into the limelight.”

According to a third Pew Project study, effects on health care access are of concern not only during malpractice crises, but also between such crises, where the malpractice climate is one of the factors that influence practice trends, such as how many physicians enter the medical profession, what specialties they choose and where they practice. The study, also published in the June 1 issue of JAMA, found that states that enacted malpractice reforms had a slight increase in their overall supply of physicians

Using data from the American Medical Association’s Physician Masterfile, the nation’s largest source of physician data, the study compared the number of physicians in states that adopted tort reforms between 1986 and 2000 to states that did not, and found that physician supply in all states increased, but increased three percent more in states that enacted “direct” malpractice reforms that reduce the size of awards, such as caps on damages. That relatively modest increase, however, does not strongly support arguments from some tort reform proponents who believe that caps alone would solve the problem of physician supply.

Co-author William M. Sage, M.D., J.D., a professor at Columbia Law School and principal investigator of Pew Project on Medical Liability in Pennsylvania, says the study sheds light on how and why tort reform increases physician supply. First, supply increased because more new doctors initially chose to practice in tort reform states, and fewer older doctors retired early. Contrary to what one often hears, says Sage, very few physicians moved from state to state to escape steep premiums. Second, he says, harsh liability conditions are particularly hard on physicians who practice solo or in small groups. In states not adopting tort reform, many of those physicians joined larger groups. Third, the increase in supply from tort reform was greater in states with high levels of managed care. According to Sage, “it seems that physicians can tolerate either an adverse liability climate or managed care, but the two together reduce physicians’ willingness to practice.”

Sage and co-authors point out that their study has several significant limitations. It does not take into account what happened prior to 1985 because earlier data on physician practices were not available. The study could not exclude the possibility that the physician supply increase in states adopting reforms was simply a consequence of those states having more room for growth because they had fewer physicians at baseline.

Despite these limitations, Sage says that the study, along with the others released this year, confirm that the existing liability system has a negative impact on the way that physicians practice medicine. “The specific reforms we tested, such as caps on damages, may or may not be beneficial to the health care system as a whole, but are certainly perceived by physicians as improving practice conditions.” He adds that several recent studies agree that the current malpractice crisis is not the result of epidemic litigation, as the number of malpractice claims has remained steady and payouts have increased slowly and predictably since the late 1980s.

With that said, Sage also believes that in addition to stabilizing malpractice premiums, meaningful reform must make medical care safer and improve the process of dealing with errors. “Taking all this research as a whole, my conclusion is that there are very real problems with the malpractice system that require comprehensive reform, meaning patient safety innovations and better-functioning markets for malpractice insurance, as well as reducing the number of cases that end up in court.”

A fourth study, published this May in Health Affairs, also looked at the impact of malpractice reforms on the supply of physician services and similarly found that the presence of caps on non-economic damage awards has a slight positive impact on where doctors choose to practice, particularly in rural areas. The study, conducted by researchers at AHRQ, found that between 1985 and 2000, 27 states with caps on non-economic damages had 2.2 percent more physicians per capita than states without such caps. Rural counties in states with non-economic damage caps had 3.2 percent more physicians per capita than rural counties in states without caps. The study focused on obstetrician-gynecologists and surgical specialists, two high-risk specialists that were particularly hit hard by rising premiums.

“What surprised us is that a cap with a $250,000 limit on damages did make a difference in rural counties,” says study co-author William Encinosa, Ph.D. In these areas, the study found that caps increased the supply of ob-gyns and surgical specialists by about five and six percent. “It doesn’t sound like a big factor,” notes Encinosa, “but it essentially amounts to 800 extra doctor visits per 100,000 people per year.”

While the report conclusively states that caps cause an increase in the supply of physicians, it does not look at whether doctors moved from state to state or if doctors within a state were not practicing due to high premiums and then resumed practicing after the caps were put into effect. In addition, according to Encinosa, the study did not have a large enough sample to look at other specialists, such as neurologists.

Despite those limitations, Encinosa says the findings not only demonstrate that caps improve access to physicians but also suggest a beneficial effect in patients, which might encourage some states that currently don’t have caps to pass legislation, especially for rural areas. Future research, he adds, should look at how caps impact patient safety events and medical errors. “Does placing a cap actually cause medical errors to increase? That’s an open question,” says Encinosa.

Impact on Malpractice Debate

While peer-reviewed research is considered the gold standard for scientific advancement in academia, its role and influence in the political arena is less clear, as partisan predispositions can easily shape interpretations of the data. Pa. legislators and lobbyists do, in fact, respond to the new physician access findings with both caution and skepticism.

“Like research conducted by stakeholders, I’ve seen conflicting reports coming from people pushing their academic credentials,” according to PMS spokesperson Chuck Moran. This doesn’t mean that academic research doesn’t have some role in the debate, and the PMS will likely use the studies to assist in their advocacy, says Moran. PMS President William W. Lander, M.D., issued an enthusiastic statement in June welcoming the findings of the research, and Moran says they echo what the PMS has been saying for several years about physician supply and access problems.

PMS’s own research has revealed that Pa. physicians practice defensive medicine at a high level, and that the percentage of young physicians in Pa. is decreasing, says Moran, who also cites Pew’s “largely ignored” 2004 study in which one in four Pennsylvanians indicated they had to change doctors because rising costs of liability insurance either forced their doctor to move, stop practicing, or limit procedures. According to Moran, the complexity of the access and supply problems raised by the new studies warrants a three-legged solution that includes patient safety enhancements, changes in insurance and legal reforms.

PaTLA continues to scoff at the medical society’s reports of dwindling physician numbers and dire warnings of a shortage, and is not impressed by the new studies’ findings, questioning the reliability of research based on physician self-reporting.

“As we have seen with the now-debunked claims of a widespread ‘doctor exodus’ from Pennsylvania – and Ohio, Illinois, Rhode Island and Virginia – physicians’ claims are too often directly contradicted by hard facts,” says PaTLA President Nancy Fullam. “When faced with facts, the medical community has developed a pattern of simply moving on to another claim. So I await facts – actual ‘facts’ – to prove ‘defensive medicine’ occurs and is somehow harmful to our health care system.”

In response to the research indicating that most physicians are practicing defensive medicine out of fear of lawsuits, Fullam says that PaTLA welcomes the improvement, if it means that they are practicing more safely or cautiously. “The many patients whose lives are saved by conscientious work-up of their conditions are testament enough to the importance of quality care. Let’s not suggest that a test performed to evaluate a potentially life-threatening condition, which yields a ‘normal’ result, was an injudicious use of the medical system.”

Adds Fullam, “I – and the public – will believe in ‘defensive medicine’ when one of either two things happens: the number of deaths and injuries due to ‘preventable medical errors’ drops significantly or the health insurance carriers admit to paying claims for what are deemed to be unnecessary tests and procedures. So far, neither has happened.”

While Studdert and co-authors acknowledge in their study that the effects of defensive medicine on patient access to care are difficult to demonstrate because of so many variables and too few benchmarks, they nevertheless warn that the kind of avoidance behavior induced by a perceived risk of being sued has potentially serious implications for cost, access and quality of care.

Central to the new studies, and illustrating the complexity of the access-to-care issue, is the finding that perception of the threat of liability can influence the level of defensive medicine and other changes in physician practice. While this complexity may be well suited to academic research, it is an apparent anathema to the political process, which is driven not by nuances, but by snappy slogans and clear-cut numbers.

“We tend to simplify things in a political debate through sound bites,” acknowledges Pa. Sen. Jeffrey Piccola (R-Dauphin County), who says that while the studies help to verify the validity of the problem of access to care, they may not find their way into the debate. “The studies will not be disregarded,” says Piccola, “but you may not find the details reflected in the floor debate. Maybe in committee hearings, but not in floor debate.”

Piccola adds that, while peer-reviewed studies like these provide ammunition for the malpractice debate, what really matters is for legislators to hear directly from patients who are experiencing long waiting times or overcrowded conditions that, in effect, deprive them of access to care. “The studies will have a role in the debate, but the thing that will push it over the finish line is the actual effect that it has on patients’ access to affordable and quality care. When that accessibility issue becomes known to patients, that’s what really moves people,” says Piccola.

On the other side of the aisle, House Minority Leader William DeWeese (D-Waynesburg), who has been saying throughout the debate that an independent examination of the numbers needs to be conducted, is apparently still looking for “real answers” from an study,” according to his spokesperson, Tom Andrews. “Not a medical or legal point of view,” says Andrews, referring to the recently released studies, “but an independent study.”

Andrews does not completely dismiss the value of the Pew and AHRQ studies, noting that they “have helped to stir the debate but are by no means the only data that should be used.” He says that once an independent study is conducted, only then will the issue be discussed at congressional hearings, with industry experts on hand to provide testimony and help policymakers better understand the complexities surrounding the issue of access to care. These hearings would include perspective from the insurance industry, adds Andrews, which has been relatively silent throughout the debate.

On the issue of physician supply, DeWeese, along with House Democratic Whip Michael Veon (D-Beaver), has introduced a House Resolution (H.R. 259) that would create a bipartisan task force to study the recruitment and retention of physicians in Pennsylvania, including rural and medically underserved areas of the state. “[DeWeese and Veon] would like to see an independent study done throughout the state to see where the doctors are located, to see why they’re leaving their practice or why they’re not staying in Pa., says Andrews. “They don’t believe it’s merely a malpractice situation.” If passed, the resolution would require the task force to issue a report on its findings and make recommendations by November 1, 2005.

Governor Rendell has said that he doesn’t believe there has been a “massive loss” of physicians from Pa., but he is concerned about physicians retiring or leaving their practices, and younger physicians not coming into Pa., says Amy Kelchner, spokesperson for the Governor’s Office of Health Care Reform (OHCR). According to Kelchner, the Governor has seen reviews of the four new studies and says that, while he is still unconvinced that limiting awards in malpractice suits is the solution to the current crisis, measures of information like this are helpful. “He has said from day one that one of the challenges of the debate has always been a lack of credible information to be able to help dictate the discussions.”

According to Kelchner, OHCR Director Rosemarie Greco has met with the Medical Project on Liability’s director William Sage to hear researchers’ views on how the Rendell Administration might apply their findings to short- and long-term solutions to the malpractice crisis and will continue to meet with him as more data is gathered. Kelchner says the administration is currently looking at the early stages of a series of malpractice reforms that have already been passed, many of which build upon those proposed by Governor Schweiker in 2002 and 2003.

According to Kelchner, Rendell is unwavering in his opposition to caps in malpractice suits, expressing serious concerns about their fairness and the effect they have on the most vulnerable citizens. However, she adds, he has no formal role in deciding the caps issue. Specifically, the Governor cannot veto a vote by the General Assembly to place any constitutional amendment on the ballot, including a cap on non-economic damages. According to Kelchner, he has also said he would not lobby the issue one way or the other.
Kelchner says the Governor is convinced that the reforms put in place will have an effect, although it may take a while for them to percolate through the medical community. In the meantime, she adds, Rendell is committed to giving doctors short-term relief through continued MCARE abatement.

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