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A B C D E F G H I J K L M N O Malpractice Methodology Peter Orszag The health care legislation that Congress enacted earlier this year, contrary to much of today’s overheated rhetoric, does many things right. But it does almost nothing to reform medical malpractice laws. Lawmakers missed an important opportunity to shield from malpractice liability any doctors who followed evidence-based guidelines in treating their patients. As President Obama noted in his speech to the American Medical Association in June 2009, too many doctors order unnecessary tests and treatments only because they believe it will protect them from a lawsuit. Instead, he said, “We need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine and encourage broader use of evidence-based guidelines.” Why does this matter? Right now, health care is more evidence-free than you might think. And even where evidence-based clinical guidelines exist, research suggests that doctors follow them only about half of the time. One estimate suggests that it takes 17 years on average to incorporate new research findings into widespread practice. As a result, any clinical guidelines that exist often have limited impact. How might we encourage doctors to adopt new evidence more quickly? Malpractice reform could help — possibly a lot. The academic literature tends to play down the role of medical liability laws in driving up health care costs. Doctors themselves, however, almost universally state that malpractice statutes lead to extraneous testing and treatment. It is also conceivable that because such laws usually focus on “customary practice” — that is, a doctor who has treated a patient the way most other doctors in the area would is considered safe from accusations of malpractice — they create a strong contagion effect among doctors. The laws, no matter how weak or stringent, may therefore explain why doctors in some parts of the country generally adopt m