Neurosurgery: Fear of Litigation Drives Defensive Medical Practice

Timothy R. Smith, M.D., Ph.D., M.P.H. Pituitary/Neuroendoscopy Fellow Department of Neurosurgery Brigham & Womens Hospital Harvard University Boston, MA Interview with:
Timothy R. Smith, M.D., Ph.D., M.P.H
Pituitary/Neuroendoscopy Fellow
Department of Neurosurgery
Brigham & Womens Hospital
Harvard University Boston, MA 0211

Medical Research: What is the background for this study? What are the main findings?

Dr. Smith: Defensive medicine is the practice of prescribing unnecessary medical treatment for fear of being sued – it is widely practiced in the United States and contributes to our rising healthcare costs. In high-risk specialties such as neurosurgery, the fear of litigation leads to defensive practices that actually impact clinical decisions. A 2009 American College of Emergency Physicians report created malpractice risk profiles for each state based on its legal atmosphere, tort reform, and insurance availability. Based on these profiles, each state was ranked from 1 to 50 and sorted into separate categories, ranging from A, for the best liability environment, to F, for the worst. We sent a 51-question, anonymous online survey, which covered topics ranging from patient characteristics to surgeon liability profiles, to board-certified US neurosurgeons in the American Association of Neurological Surgeons. The purpose was to determine how neurosurgeons’ perceptions of their medico-legal environments correlated with these established state risk profiles, as well as whether each state’s liability risk environment was a predictor of defensive medical practices.

We found that though the average malpractice insurance premium was $103,000 per year, neurosurgeons from high-risk states paid significantly more ($128,000) than those from low-risk states did ($75,000). Even with these amounts, almost 70% of respondents felt that their insurance coverage was inadequate, and 90% felt that the insurance premium was a financial burden. Neurosurgeons from high-risk states were also twice as likely to have been sued as those from low-risk states were. More than 80% of respondents ordered additional imaging for defensive medical purposes, and more than 75% said they ordered additional laboratory tests and made unnecessary referrals for defensive purposes; this behavior was more prevalent in high-risk states. After controlling for important confounders, we found that for every letter-grade change from “A” to “F”, neurosurgeons are 1.5 times more likely to engage in defensive behaviors. For example, moving from a “D” state to an “A” state represents 4.5 fold difference in defensive behaviors.

Medical Research: What should clinicians and patients take away from your report?

Dr. Smith: The fear of litigation can significantly and negatively impacts both physicians and patients. Physicians from high-risk states are more likely to be more aware of their medico-legal risk environment. Patients should take away just how prevalent defensive practices and why they exist.  Neurosurgeons appear to be in tune with the environment in which they practice. For instance, in high-risk states, almost half of our responding physicians said they no longer practice high-risk procedures due to liability concerns. This could be detrimental to patients who are not receiving the appropriate medical care. More than a third of our respondents are also considering retirement due to the liability environment.

Medical Research: What recommendations do you have for future research as a result of this study?

Dr. Smith: The United States healthcare system has been the subject of much recent debate, especially with the passage of the Patient Portability & Affordable Care Act (PPACA). The contribution of defensive medicine behaviors to healthcare costs is around $60.2 billion per year – it is clear that we must continue studying how best to combat this problem. We are currently investigating the differences in defensive medicine among Neurosurgeons in the US, Canada, and South Africa.  These three countries represent three very different systems for dealing with malpractice. We hope that there will be something to learn from the international experience. We hope to continue sparking debate on healthcare policies to allow patients to receive the best medical care in an affordable manner.


Defensive Medicine in Neurosurgery: Does State-Level Liability Risk Matter?

Smith, Timothy R. MD, PhD, MPH*; Habib, Ali BA*; Rosenow, Joshua M. MD*; Nahed, Brian V. MD; Babu, Maya A. MD, MBA§; Cybulski, George MD*; Fessler, Richard MD, PhD*; Batjer, H. Hunt MD*; Heary, Robert F. MD


February 2015 – Volume 76 – Issue 2 – p 105–114

doi: 10.1227/NEU.0000000000000576 Interview with:, & Timothy R. Smith, M.D., Ph.D., M.P.H. (2015). Neurosurgery: Fear of Litigation Drives Defensive Medical Practice

Last Updated on February 1, 2015 by Marie Benz MD FAAD