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When an obstetrician makes a substantial mistake, Jack Olender goes after millions. The Washington, D.C., lawyer has, by his own account, brought hundreds of doctors to court — and there are enough malpractice attorneys out there to make this kind of case a multibillion dollar industry.

To protect themselves, doctors often order tests and procedures that aren’t medically necessary, pushing up the cost of every hospital visit. And a new study found that when the bill is higher for hospital admissions, the overseeing doctor is less likely to be sued.


This finding worries some doctors, who expressed concern about whether medical decisions are being motivated more by legal questions than by patient needs.

“If you order every test known to man … you may reduce the likelihood that you will get sued, but it certainly isn’t the best medicine for people, and it certainly isn’t the most cost efficient,” said Dr. Alan Woodward, an emergency medicine physician in Concord, Mass., who was not involved in the study.

Over 60 percent of American physicians say they practice this kind of “defensive” medicine. But researchers had never studied whether this behavior actually limited a physician’s exposure to malpractice liability.


So, a team led by Dr. Anupam Jena, a health economist at Harvard Medical School, pored over hospital spending data from nearly 25,000 physicians in Florida between 2000 to 2009. Thanks to the Sunshine State’s famously liberal open-records laws, they also obtained all the claims for personal injury damages filed against the doctors.

They found that physicians with higher costs — presumably because they ordered more tests, procedures, and consultations — were accused less often of malpractice in the following year. Doctors who averaged costs of about $20,000 for each hospital admission had a 1.5 percent chance of litigation, while the rate was only 0.3 for those with average costs of around $40,000.

“You may reduce the likelihood that you will get sued, but it certainly isn’t the best medicine for people.”

Dr. Alan Woodward

An emergency medicine physician in Concord, Mass., and the past president of the Massachusetts Medical Society

It wasn’t just that good doctors seldom get taken to court either. “In our study, we also look at the same doctor over time,” explained Jena. “The same doctor, when he or she spent more, was less likely to get sued compared to years when he or she spent less.”

The pattern held true across nearly every medical specialty studied, including surgery, pediatrics, and obstetrics. And it’s not as though lawsuits against these specialties are rare: 15 percent of general surgeons get sued every year, according to a study Jena published in 2011, and the rate is as high as 34 percent for obstetricians, others have found.

Jena and his colleagues, which included researchers from Stanford University and the National Bureau of Economic Research in Cambridge, Mass., published the findings Wednesday in the journal BMJ.

Dr. Robert Stiller, an obstetrician-gynecologist at Yale School of Medicine, has seen plenty of overly cautious referrals. But he said the decision to practice defensively isn’t conscious. “Many obstetricians have been sued, and that does create an environment of fear,” he said.

Given that mentality, health care reforms that aim to lower costs by requiring doctors to order fewer tests might be tough to implement. And even Olender, the litigious lawyer, recognizes there’s a problem. “When the reason things are prescribed is to try to avoid lawsuits — that’s bad news,” he said.

However, some experts question whether the conclusions will hold true for the nation as a whole.

Florida “is the Wild West of medicine,” said Dr. H. Gilbert Welch, author of “Less Medicine, More Health” and a professor at the Dartmouth Institute for Health Policy. “It’s one study, in one unusual state. How generalizable is it?”

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