Does Tort Law Improve the Health of Newborns, or Miscarry? A Longitudinal Analysis of the Effect of Liability Pressure on Birth Outcomes

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1 Does Tort Law Improve the Health of Newborns, or Miscarry? A Longitudinal Analysis of the Effect of Liability Pressure on Birth Outcomes YT Yang, DM Studdert, SV Subramanian, and MM Mello

2 Introduction Previous study results A question arises Focus Policy motivation 2

3 Empirical literature review Literature Findings Limitations Harvard Medical Practice Study (HMPS) (1990): Based on the review of over 30,000 randomly selected patient records and malpractice claims files in New York State in 1984, researchers investigated the association between hospitals past claims experience and their current patterns of care and adverse events rates. HMPS reanalysis (Brennan et al.) incorporated more sophisticated outcome measures for deterrence. Taragin et al. (1995) conducted an analysis of the association between physicians past malpractice claims experience and their chances of being sued again. Mixed findings. Hospitals facing the highest malpractice claim risk had per-patient hospital care costs that were higher than the statewide average. They considered this association evidence of deterrent effect. Yet, when other outcome measures of the impact of claim risk on medical practice were used, no statistically significant association was found. Mixed findings. A statistically significant negative relation was found for a model using the no. of adverse events per 100 hospitalizations as the outcome variable and the no. of claims against the hospital per 1000 discharges as the malpractice-risk measure. But, none of the other models showed a statistically significant deterrent effect. The hypothesized relationship (the experience of being punished for negligence might reduce the likelihood of subsequent lawsuits for negligence, which would be suggestive evidence of a deterrence effect) was found The association found between malpractice risk and increased per-capita cost of services does not necessarily reflect a deterrent effect; instead, it might be due to defensive medicine and other phenomena. Omitting significant patientrisk factors that might lead some hospitals to have higher rates of adverse events than others, even if they were similarly prone to negligence. Absence of lawsuits against a physician does not necessarily imply an absence of negligence, because only a fraction of patients injured due to negligence file a claim 3

4 Empirical literature review (focus on health outcomes) Literature Findings Limitations Kessler et al. (1996) compared treatment of Medicare patients for ischemic heart disease and acute myocardial infarction across time and states to assess the impact of tort reform. Sloan et al. (1995) examined the effects of malpractice risk, measured by claims frequency and payments per exposure year, on obstetrical outcomes in Florida. Dubay et al. (1999) used Apgar score as an indicator of health outcome to assess the effect of premiums. A reduction in provider liability exposure via tort reforms had no statistically significant effect on rates of mortality or medical complications of heart patients. No evidence to suggest that higher malpractice pressure leads to better outcomes. No significant improvement in health outcome. CBO found that the study results could not be replicated for other conditions. Used Medicare data; the elderly unlikely to sue; liability pressure rather low; Only tort reforms Relied on a single cross-section of data from one state. Adverse outcomes within 5 yrs of birth, is a poor measure, since health status several years after birth may be influenced by pediatrician behavior or other factors, in addition to OB s care. Apgar scores are a crude measure of morbidity of the newborn and may not provide all the relevant information on adverse outcomes. Premium data were acquired through an Urban Institute survey, the quality and completeness of which have not been ascertained by other analyses. Employed time and place fixed-effects to estimate withinplace changes by removing between-place variations; however, given the short study period (2 years), there may not be sufficient within-place variation to estimate. 4

5 Conceptual framework & Model specification Main hypothesis Unit of analysis Proxy for substandard obstetric care Longitudinal multilevel mixed-effect model Y ijk = X ijk β + Z (3) u (3) + Z ( 2) u ( 2) + ijk k ijk jk ε ijk 5

6 Data Structure Data can be viewed as a series of 12 repeated measures for each of the 51 jurisdictions. Added a level of region, according to U.S. census divisions, to adjust for potential regional effects on outcome variables. 6

7 Dependent variables Data Five outcomes Birth injury: impairment of the infant s body function or structure due to adverse influences that occurred at birth per 1,000 live births. Low 5 min-apgar score: having a 5-min Apgar score of less than 7 per 100 live births. Low birthweight: weight of less than 2,500 grams at birth per 100 live births. Preterm: Born before 37 completed weeks of pregnancy per 100 live births. Infant mortality: the rate at which babies less than one year of age die per 1,000 live births. Maternal mortality: the annual number of deaths of women from pregnancy-related causes per 100,000 live births. Low 5-min apgar score Low birthweight Preterm birth Infant mortality Maternal mortality Mean Std. Dev Birth injury 7

8 Trend in Low 5-min Apgar Score Trend in Low Birthweight No. per 100 Live Births No. per 100 Live Births Trend in Perterm Birth Trend in Birth Injury No. per 100 Live Births No. per 1000 Live Births Trend in Infant Mortality Trend in Maternal Mortality No. per 1000 Live Births No. per Live Births

9 Main explanatory variables Premiums: MLM data weighted according to insurers market shares and the geographic distribution of physicians within the state. Tort reforms: data from NCSL, ATRA, and MC&L. Dummy variables to account for the tort reforms. Data lagged by one year after implementation. 9

10 Trend in US OB/GYN Malpractice Premiums & 2002 US OB/GYN Malpractice Premiums: National View Premiums 0 50,

11 Malpractice tort laws considered in analysis Reform Description of reform Numbers of jurisdictions with the reform Attorney Fee Limits The proportion of an award that an attorney can contractually charge is statutorily capped at a specific level Collateral Source Rule Damage Caps: punitive only Damage Caps: non-economic =< 250,000 Damage Caps: non-economic 250, ,000 Damage Caps: non-economic or total >500,000 Expert Witness Rule Joint and Several Liability Rule Periodic Payment of Awards Pretrial Screening Damages payable in a malpractice suit are statutorily reduced by all or part of the dollar value of collateral-source payments to the plaintiff. Punitive damages are capped at a statutorily established dollar amount. Either non-economic, total damages or both types of damages are capped at a statutorily established dollar amount. Experts must be appropriately credentialed and experienced with the standard of care in the case. The Joint and Several Liability rule is abolished either for non-economic or total damages in all claims, such that damages payable in a malpractice suit are statutorily allocated in proportion to the tortfeasors degree of fault. Part or all of the damages are permitted or must to be disbursed in the form of an annuity that pays out over time. A voluntary or mandatory panel to identify nonmeritorious professional negligence claims

12 Other explanatory variables: Provider factors Variable (Mean/ Std. Dev.) Significance/ Hypothesis Data source HMO penetration rate (18.3/ 12.6) Investor-owned hospitals (11.9/ 11.7)/ not-for-profit hospitals (63.4/ 24.7) Urban hospitals (49.8/ 25.7 Non-physicians(7.3/ 4.9)/ nonhospital births(1.1/ 0.9) The direction of the effects is unclear, there is enough literature to suggest that attempts should be made to control for the penetration of for-profit hospitals and managed care organizations in a model predicting health outcome. Urban hospitals also tend to have more resources specifically earmarked for quality improvement. ACOG found that out-ofhospital births attended by midwives have an increased risk Morgan Quito Press using data from InterStudy Publications Limitation: relatively coarse measure and not likely to fully account for the potential influence of managed care. Hospital Statistics of AHA NDF (birth certificates) 12

13 Other explanatory variables: Medical risk factors Variable (Mean/ Std. Dev.) Significance/ Hypothesis Data source Adequate/ adeq+ prenatal care (72.8/ 6.9) adequacy of prenatal care is measured using the Adequacy of Prenatal Care Utilization Index Female Obesity (16.8/ 3.8) Multiple births (2.8/ 0.5) Births to women over 35 years old (11.5/ 3.4) / teen births (12.4/ 3.3) Tobacco use(14.9/5) /alcohol use (1.6/1.2) 4 principal components computed from 14* underlying medical risks of high-risk pregnancy & C/Section Adequate prenatal care is widely believed to improve pregnancy outcomes, though many studies have found weak or no effects of prenatal care on birth outcomes. More poor outcomes NDF (birth certificates) CDC s Behavioral Risk Factor Surveillance System (BRFSS). NDF (birth certificates) *abruptio placenta, breech birth, ephalopelvic disproportion, chronic hypertension, cord prolapse, diabetes, dysfunctional labor, eclampsia, excessive bleeding, fetal distress, incompetent cervix, placenta previa, pregnancy-associated hypertension, and prolonged labor 13

14 Other explanatory variables: Socioeconomic factors Variable (Mean/ Std. Dev.) Significance/ Hypothesis Data source Per-capita income ($10,000) (2.73/0.45) Employment-based (61.6/6.2) Medicaid (10.8/ 3.4) No insurance (14/ 4) Minority births (20/ 14.8) Births to women with college education (22.6/ 6.4) There is evidence linking lower maternal socioeconomic status to poor birth outcomes. Bureau of Economic Analysis U.S. Census Bureau s health insurance data Limitation: population insurance rates not childbearing aged female insurance rates NDF (birth certificates) NDF (birth certificates) Interactions: Because the impact of prenatal care on birth outcomes may be dependent on socioeconomic factors, we explored several potential interaction effects between prenatal care and socioeconomic factors, such as prenatal care and per-capita income, prenatal care and minority births, and prenatal care and insurance status. The effect of managed care on birth outcomes may vary with socioeconomic status, as worse outcomes have been detected in poor enrollees in HMOs. Therefore, we examined an interaction term between HMO penetration and percapita income. 14

15 Time trend Polynomial trends Centering time 15

16 Results: Effects of malpractice premiums Overall, the results provide no evidence of a deterrent effect of liability pressure. The coefficient and p-value of premiums for each of the outcome variables are as follows: low 5-minute Apgar score: -0.02, p=0.16; low birthweight: 0.02, p=0.43; preterm birth: 0.02, p=0.51; birth injury: -0.02, p=0.15; infant mortality: -0.01, p=0.88; maternal mortality: -0.15, p=0.53. Main drivers? 16

17 Results: Effects of tort reforms No evidence that any of the tort reforms were associated with significant changes in the rates of the measured adverse birth outcomes. For instance, the coefficient and p-value of caps on noneconomic damages set equal or below $250,000 for each of the outcome variables are as follows: low 5-minute Apgar score: -0.13, p=0.09; low birthweight: 0.18, p=0.27; preterm birth: 0.31, p=0.23; birth injury: -0.01, p=0.16; infant mortality: -0.05, p=0.90; maternal mortality: 1.7, p=

18 Discussion and policy implications Deterring medical negligence? The hypothesis rejected Effects are not evident. Reforms do not result in worse birth outcomes. Procedure rate variations justifiable? Previous results Combined with the results here These findings suggest 18

19 Rebuttals against probable methodological reasons for the failure to detect a potential deterrent effect Inadequately measured the malpractice pressure? Aggregated state-level data may have attenuated the relationship? Adverse birth outcomes are an inappropriate proxy for substandard obstetric care? 19

20 Barriers to deterrence Externalization of the costs of negligence reduces the economic incentive to improve quality of care. Poor fit between negligent practice and malpractice claims results in inconsistent incentives to providers to improve care. Discordance between the current tort system and what is known about medical errors. 20

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