For years, a favorite myth of those who favor restrictions on medical malpractice lawsuits is that this would reduce the amount of “defensive medicine” that is practiced. Proponents in Congress threw out huge figures in medical care savings if only the trial lawyers were held in check. Those of us who practice in this field of law always thought this was a terribly exaggerated premise.

The New England Journal of Medicine, perhaps the nation’s most prestigious medical publication, just published the results of a study testing the tort reformers’ premise. They systematically studied Emergency Room medical practices in three states that enacted legislation making it almost impossible to hold an ER doctor accountable for malpractice.

The conclusion: “Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates.” In other words, fear of a malpractice lawsuit was not forcing doctors to do more tests, order more imaging studies, or otherwise practice medicine in a “defensive” way.

The true result of the legislation in those three states is that people who are injured because of negligent ER care now have no recourse for their injuries, and the doctors are no longer held accountable when they injure through negligent care. Is it possible that this is the real reason hospitals, physician groups and their insurers lobbied so hard to impose the restrictions on suing for negligent ER care?