New Studies by RWJF Scholars Focus on Malpractice, Tort Reform, Error Disclosure Laws

Research published in a special issue of "Health Affairs" journal--and featured at a National Press Club event--estimates liability costs at 2.4 percent of overall health care total.

    • September 15, 2010

New research and analysis by a number of Robert Wood Johnson Foundation (RWJF) scholars and their colleagues offer fresh insight into several much-debated areas of the nation’s health care system, including medical liability, disclosure of medical errors, the overuse of emergency rooms and the public health problem of bacteria that have grown resistant to modern antibiotics. The research is the focus of the September issue of Health Affairs.

A study led by Michelle Mello, J.D., Ph.D., a recipient of the 2007 RWJF Investigator Award in Health Policy Research, identified and quantified an array of costs associated with the medical liability system. The researchers concluded that the system costs $55.6 billion per year, which equals 2.4 percent of total health care spending. The tally included payments made to malpractice plaintiffs by insurance companies and providers, defensive medicine costs, lawyers’ fees and lost clinician work time. The resulting estimate included $45.6 billion for “defensive medicine,” which the researchers defined as tests, procedures or visits ordered primarily because of concern about malpractice liability, as well as costs associated with providers avoiding certain high-risk patients or procedures.

The authors note that while the number is high, it is not as high as many advocates have asserted in the past. Moreover, although tort reform is often the focus of policy conversations about health care spending, the authors conclude that reducing the costs of liability have “modest potential to exert downward pressure on overall health spending.” Instead, they write, “reforms to the health care delivery system, such as alterations to the fee-for-service reimbursement system and the incentives it provides for overuse, probably provide greater opportunities for savings.”

State Apology and Disclosure Laws Miss the Mark

In another study, Mello, Thomas Gallagher, M.D., also a recipient of the 2007 RWJF Investigator Award in Health Policy Research, and colleagues note that 34 states and the District of Columbia have adopted laws to encourage health care providers to disclose mistakes to patients and/or apologize for them, without fear of legal jeopardy. Such laws exclude parts of conversations between doctors and patients from use in court. By shielding certain statements, the laws are designed to encourage disclosures that could help patients make informed decisions about their care.

But Gallagher and his colleagues conclude that many of the states’ laws are not sufficiently protective to have the desired effect. They write, “Our analysis reveals that most of these laws have structural weaknesses that may discourage comprehensive disclosures and apologies and weaken the laws’ impact on malpractice suits.”

Overuse of Emergency Rooms

In another article in the September Health Affairs, RWJF Clinical Scholar and Health Policy Fellow alumnus Arthur Kellerman, M.D., M.P.H., RWJF Health Policy Fellow alumnus Eugene Rich and colleagues take a closer look at a separate driver of high health care costs: the use of emergency rooms for care more appropriately delivered elsewhere. They found that only 42 percent of the 354 million annual patient visits for acute care—treatment for newly arising health problems—are made to patients’ personal physicians. Twenty-eight percent are made to emergency departments, and the rest to specialists or outpatient departments. By comparison, they write, “a half-century ago, general practitioners were the main providers of acute care.”

Such trends are often attributed to some patients’ lack of health insurance. But the authors note: “One of the biggest barriers to acute care in primary care practice is many office-based practitioners’ busy schedules… [that make] ‘same-day scheduling’ and other efforts to ensure access extremely difficult.” Also, a minority of doctors see patients after hours, limiting patients’ options. Patients respond by seeking care where they can get it promptly, often in emergency rooms.

The dynamic is not only more expensive, it also leads to disjointed care, the authors write: “Too often, emergency care is disconnected from patients’ ongoing health care needs. Lack of shared health information promotes duplicative testing, hinders follow-up and increases the risk of medical errors.”

On September 7, Mello, Gallagher, Kellerman and Rich all participated in a conference at the National Press Club in Washington, D.C., to launch the Health Affairs issue. An audience of policy-makers, advocates and media heard from a number of authors of studies featured in the issue and media outlets, including the New York Times, Wall Street Journal, U.S. News & World Report and others, subsequently published stories on the findings.

Fighting Antibiotic Resistance

Another article in the journal, co-authored by Aaron Kesselheim, M.D., J.D., M.P.H., a recipient of a 2009 RWJF Investigator Award in Health Policy Research, examines a growing public health issue: the increasing number of bacteria that have grown resistant to available antibiotics. The article reviews proposals intended to encourage drug development, including financial-incentive strategies that would extend the patent life for new antibiotics. The authors warn that such approaches could conflict with the need to reduce unnecessary antibiotic prescriptions. They recommend instead a strategy that would increase reimbursement for the appropriate, evidence-based use of antibiotics that met specific public health goals, including limiting resistance.