In America, the cost of health care is not high just because the medicine is the best in the world, it is also because of lawsuits.

Due to judgments in court cases that have earned tens of millions of dollars for lawyers - one aggressive lawyer demonized hospitals for not doing enough caesarian-sections and earned enough money to become a Senator and then a Vice-Presidential contender in 2004 - hospitals and offices have instituted a 'defense medicine' policy; even if there is no doubt, there is a protocol in place that says a number of tests must be run so that all of the boxes can be checked in case something goes wrong and attorneys swoop in. Coupled with malpractice costs, the costs of unnecessary testing can be quite high.

The RAND Corporation, which is involved in various social justice issues, including more government control of health care, finds that making it more difficult to sue physicians for medical malpractice won't solve the problem. It may be that the modern 'teach to the protocol' environment, which penalizes individual initiative by doctors, is not going away and they will be 'better safe than sorry' regardless of the costs..

Discussing his article in the New England Journal of Medicine, Dr. Daniel A. Waxman, the paper's lead author and a researcher at RAND, says, "Physicians say they order unnecessary tests strictly out of fear of being sued, but our results suggest the story is more complicated."  

It is widely believed that defensive medicine accounts for a substantial part of the hundreds of billions of dollars of unnecessary health care spending that is estimated to occur annually in the United States. Malpractice reform has been advocated by many experts as a key to reining in health care costs. 

RAND looked at three states -- Georgia, Texas and South Carolina -- that about a decade ago changed the legal malpractice standard for emergency care to gross negligence. Other states use the more common ordinary negligence standard, or a failure to exercise reasonable care. 

The higher standard means that for physicians accused of malpractice in the three states examined, plaintiffs must prove that doctors consciously disregarded the need to use reasonable care, knowing full well that their actions were likely to cause serious injury.

"These malpractice reforms have been said to provide virtual immunity against lawsuits," said Waxman, also an emergency medicine physician at the David Geffen School of Medicine at UCLA.

They examined 3.8 million Medicare patient records from 1,166 hospital emergency departments from 1997 to 2011. They compared care in the three reform states, before and after the statutes took effect, to care in neighboring states that did not pass malpractice reform.  

The analysis examined whether physicians ordered an advanced imaging study (CT or MRI scan), whether the patient was hospitalized after the emergency visit and total charges for the visit. Advanced imaging and hospitalization are among the most costly consequences of an emergency room visit, and physicians themselves have identified them as common defensive medicine practices. 

The malpractice reform laws had no effect on the use of imaging or on the rate of hospitalization following emergency visits. For two of the states, Texas and South Carolina, the law did not appear to cause any reduction in charges. Relative to neighboring states, Georgia saw a small drop of 3.6 percent in average emergency room charges following its 2005 reform.

"This study suggests that even when the risk of being sued for malpractice decreases, the path of least resistance still may favor resource-intensive care, at least in hospital emergency departments," Waxman said.