Wasteful or Warranted? Physician Spending Tied to Fewer Malpractice Claims

When it comes to reducing the chances of being sued for alleged malpractice, more may often be better in terms of physician spending, according to a study published online November 4, 2015 ahead of print in the British Medical Journal. Whether “defensive medicine” is actually reducing errors—and therefore malpractice claims, justified or otherwise—or is simple wasteful spending remains to be established, authors say.

Wasteful or Warranted?

To determine if spending in the form of average hospital costs affects the probability of an incident resulting in a malpractice claim, researchers led by Anupam B. Jena, MD, PhD, of Massachusetts General Hospital (Boston, MA), linked data on nearly all hospital admissions in Florida, from 2000 to 2009, to the malpractice history of each attending physician of record. In all, data were included on 24,637 physicians (154,725 physician years, 18,352,391 hospital admissions). 

Clinical specialties examined were: internal medicine, internal medicine subspecialty, family medicine, pediatrics, general surgery, surgical subspecialty, and obstetrics and gynecology.

Findings Consistent Across Specialties

The researchers looked at the total hospital charges associated with patients treated by a given physician in a given year. This was averaged across all patients treated by that physician in that year and adjusted for patient-level and clinical characteristics.

During the study period, there were 4,342 malpractice claims filed (claim rate, 2.8% per physician year). Incidents of malpractice varied across specialties, ranging from 1.6% per physician year for pediatricians to 4.1% per physician year for general surgeons and obstetrician/gynecologists.

Compared with physicians in the bottom fifth of total hospital spending, those in the top fifth had a lower risk of being involved in a malpractice claim across specialties (table 1). 

 table 1. wasteful or warranted

A ‘within-physician analysis’ meant to eliminate unobservable, time invariant differences that could contribute to higher average intensity of care and malpractice risk also showed that greater physician spending in a given year was negatively associated with the probability of a  malpractice claim in the subsequent year. This finding was consistent across specialties and was statistically significant for all except family medicine (P = .18).

Defensively Motivated Spending at Issue

According to the study authors, a nationwide survey published in 2010 found that more than 60% of US physicians reported ordering diagnostic tests or consultations solely to reduce the threat of liability. Furthermore, they cite several economic studies over the last 15 years or so that have confirmed the presence of defensive medicine among US physicians.

But, they say there has been reason to believe that higher spending has little to no impact on malpractice, particularly since a handful of studies have shown that “a substantial fraction of malpractice claims stem from failures in physician-patient communication.”

Commenting on the new study, Harlan M Krumholz, MD, SM, of Yale-New Haven Hospital (New Haven, CT), told TCTMD that it, “presents data that is interesting but lacking in specificity.”

Jena and colleagues acknowledge the study’s lack of information on illness severity and uncertainty regarding whether higher spending was defensively motivated.

“If higher spending is motivated by concerns about malpractice but is associated with fewer errors and therefore lower malpractice claims, then this spending would be considered defensively motivated but may not be wasteful because errors are lower,” they write. “If, in contrast, greater resource use is not associated with fewer errors and adds no other clinical benefit, then this additional spending could be considered wasteful, whether defensively motivated or not.”

But Krumholz said the assertion that doctors who use more resources have fewer malpractice claims filed against them “fails to address the role of quality, communication, and outcomes–and how they relate to cost and legitimate and unreasonable malpractice claims. It would be inappropriate to infer here that docs that order more tests or do more procedures are in any [way] protected from malpractice suits, whether justified or frivolous.”

The issue of whether higher spending was associated with fewer medical errors or fewer adverse events is an important consideration, add Tara F. Bishop, MD, and Michael Pesko, PhD, both of Weill Cornell Medical College (New York, NY), in an editorial accompanying the study. They note that previous studies have shown “considerable discrepancies between adverse events and malpractice claims.”

Importantly, Bishop and Pesko note that it also “would be interesting to know if doctors in the highest spending categories had been named in a malpractice claim before the study period.” If that were the case, “they may be more acutely aware of the risk of malpractice claims and may be employing targeted defensive practice or other unobserved practices such as better patient communication consciously to reduce the risk,” Bishop and Pesko say.

“The study shows that we need to understand better defensive medicine, including how to define and reliably measure it and how this type of practice affects both patients and doctors,” they conclude.


1. Jena AB, Schoemaker L, Bhattacharya J, Seabury SA. Physician spending and subsequent risk of malpractice claims: observational study. BMJ 2015;Epub ahead of print. 
2. Bishop TF, Pesko M. Does defensive medicine protect doctors against malpractice claims? BMJ 2015;Epub ahead of print. 


  • The study was supported by grants from the National Institutes of Health and National Institute of Aging.
  • Jena, Bishop and Pesko report no relevant conflicts of interest.

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