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New research refutes Boehner, Gingrich fear mongering on cost of medical malpractice lawsuits

Remember all the hand-wringing over medical malpractice litigation that opponents of health care reform brought to bear during last winter’s debate? This month’s Health Affairs includes three articles that empirically confirm what common sense told us all along: their claims had nothing to do with reality.

To recap, Republican House leader John Boehner last winter called “medical malpractice and the defensive medicine that doctors practice” the “biggest cost driver” of all in health care. Former House Speaker and 2012 presidential hopeful Newt Gingrich pegged the nation’s bill for “defensive medicine” at $625 billion a year, which is about 180 times the sum of actual medical malpractice payments.

Boehner and Gingrich were careful to tout “defensive medicine” – care rendered out of fear of litigation – because actual litigation costs are universally acknowledged to be tiny in relation to total health care spending – less than 0.6 of 1 percent by our estimate. Defensive medicine cannot be definitively measured. As in Gingrich’s wild estimate, the fear mongers usually rely on survey responses from doctors, who have every incentive to exaggerate the influence of litigation on their decision making.

This month’s Health Affairs takes a scientific approach to estimating how much health care is prescribed solely to limit liability, and whether fears about litigation are rational. The answers: Orders of magnitude less than the ideologues claim, and no.

Harvard professor Michelle Mello and her co-authors revisited controversial studies by Mark McClellen and Daniel P. Kessler that tried to gauge defensive medicine costs by studying the treatment of certain heart conditions. Mello and her co-authors cautioned that results from McClellen and Kessler’s inquiries “should be interpreted with considerable caution” because they extrapolated greatly. But in the absence of what they deemed a better alternative, the authors used those studies to generate their own defensive medicine estimate of $45.6 billion annually.

That estimate probably far exceeds reality but is nonetheless devastating to the tort reformers’ thesis that liability is a significant driver of spending. “Our opportunities  to influence overall health care costs [through liability reforms] are probably very limited,” Mello said over a Skype feed at the National Press Club Monday.

Next up are three academics from the Cutler Institute for Health at the Muskie School of Public Policy at the University of Southern Maine. The authors studied a 400 million record data set provided by CIGNA HealthCare and measured the correlation between physicians’ claims for services rendered and the doctors’ perceived risk, as measured by their liability insurance premiums. They concluded that “defensive medicine practices exist and are widespread, but their impact on medical care costs is small.” How small? They placed the cost of defensive medicine at 0.13 percent of our overall health care bill.

A third study compared the concerns about litigation between physicians in states with the highest medical malpractice indicators (such as number of claims, average payments, and highest malpractice insurance rates) and those in the states with the lowest malpractice indicators. The researchers found a “striking” level of concern among physicians across the board, “even those practicing in relatively low-risk environments.” But they found only a small difference, on the order of 2.5 to 2.9 percent, in perceived risk of litigation between those in the lowest risk and highest risk categories.

They hypothesized that the tort reformers might be to blame for doctors’ exaggerated fears. “Advocacy efforts by medical professional societies in support of tort reform may contribute to this problem by conveying the impression that most or all states and specialties are in crisis and require additional legal protection,” they wrote.

Maybe if the tort reformers channeled all their energy into lobbying for steps to reduce the 44,000 to 98,000 people who die every year because of avoidable medical errors, they would succeed in reducing legitimate fears instead of stoking irrational ones.

Taylor Lincoln is the research director for Public Citizen’s Congress Watch division.