Malpractice liability, along with medical technology and payment system distortions, regularly figures among the most-cited reasons for escalating health-care spending in the United States. On the one hand, Harvard economist Amitabh Chandra conservatively estimates that upwards of $60 billion, or 3 percent of total health care costs ($1.8 trillion), is spent annually as a result of direct litigation and indirect defensive medicine costs. On the other hand, tort reform advocates place the figure at $200 billion by extrapolating, to the entire U.S. population, the results of research conducted by Stanford professor Dan Kessler and Mark McClellan. Their 1996 study shows that tort reforms reduced provider liability costs for Medicare heart patients by 5 to 9 percent.
At the heart of these debates is the following question. Does medical malpractice liability achieve its dual goal of compensating victims of medical injuries and deterring medical errors, or does it merely encourage wasteful defensive medicine without improving patient health? Despite considerable empirical research, there is little evidence that malpractice litigation deters medical negligence. The evidence is much stronger—though still hotly debated—that malpractice fears actually encourage physicians to engage in defensive medicine.
The newest release in the Asia health Policy Program working paper series, AHPP working paper #13 by Brian Chen, explores whether malpractice pressures affect physician behavior, patient health, and health care costs in Asia. Studying physicians’ response to legal changes in Taiwan, he finds that greater malpractice liability may, under certain circumstances, prompt physicians to perform more services without necessarily improving patient health.
Dr. Chen investigates how physicians’ test-ordering behavior and propensity to perform cesarean sections were affected first by a series of court rulings in Taiwan that increased physicians’ liability risks, and then by a subsequent amendment to the law that reversed the courts’ rulings. He finds that physicians faced with higher malpractice pressure increased laboratory tests as expected but unexpectedly reduced cesarean sections. The reduction in cesarean deliveries may be due to the fact that liability risks were more closely aligned with physicians’ standard of care after the court rulings. After the law was amended to negate the court decisions, physicians reversed their previous behavior, reducing laboratory tests and increasing cesarean deliveries. This pattern of behavior strongly suggests that physicians in Taiwan practice defensive medicine.
