Malpractice liability, along with medical technology and payment system distortions, regularly figures among the most-cited reasons for escalating health-care spending in the United States. On the one hand, Harvard economist Amitabh Chandra conservatively estimates that upwards of $60 billion, or 3 percent of total health care costs ($1.8 trillion), is spent annually as a result of direct litigation and indirect defensive medicine costs. On the other hand, tort reform advocates place the figure at $200 billion by extrapolating, to the entire U.S. population, the results of research conducted by Stanford professor Dan Kessler and Mark McClellan. Their 1996 study shows that tort reforms reduced provider liability costs for Medicare heart patients by 5 to 9 percent.

At the heart of these debates is the following question. Does medical malpractice liability achieve its dual goal of compensating victims of medical injuries and deterring medical errors, or does it merely encourage wasteful defensive medicine without improving patient health? Despite considerable empirical research, there is little evidence that malpractice litigation deters medical negligence. The evidence is much stronger—though still hotly debated—that malpractice fears actually encourage physicians to engage in defensive medicine. My work at Shorenstein APARC explores whether malpractice pressures affect physician behavior, patient health, and health care costs in Asia. Studying physicians’ response to legal changes in Taiwan, I find that greater malpractice liability may, under certain circumstances, prompt physicians to perform more services without necessarily improving patient health.

In particular, I focus on how increased medical malpractice liability affects physicians in Taiwan who provide treatment to pregnant women. I have studied how a series of court rulings as well as an amendment to Taiwanese law between 1997 and 2004 impacted physicians’ test-ordering behavior and decisions to perform Caesarian sections. Traditionally, Taiwanese doctors are held accountable for medical malpractice under two bodies of law: tort law in the Civil Code, and criminal law for harm resulting from negligent acts in the course of professional operations. The latter, prosecutorial approach is rare among industrialized nations.

In January 1998, a Taipei District Court decision in favor of plaintiffs in a civil suit for damages sent shockwaves through the medical community. The district court judge disregarded the traditional tort requirement of proving the defendant’s negligence (or fault), and applied the “strict liability” doctrine of the Consumer Protection Law to impose liability on a medical provider without any showing of wrongdoing. The court decision—subsequently affirmed by the Taipei High Court on September 1, 1999 and by the Supreme Court on May 10, 2001—sparked resentment among medical professionals. Passions flared in heated debates between medical and legal scholars about whether medical services should be considered a covered “service” under the Consumer Protection Law. Economists and legal academics questioned whether the traditional justifications for imposing strict liability apply in the highly unpredictable practice of medicine, especially in obstetrics. The saga concluded in April 2004, when the legislature amended the Medical Law to require negligence or fault in medical malpractice cases.

My research considers the effect of these court rulings and legal amendments on physicians’ test-ordering behavior and their propensity to perform Caesarean sections. I identify two sources of variation in perceived risks of malpractice liability: (1) the differences between the level of exposure to malpractice risks due to the ownership structure and size of the physicians’ place of practice; and (2) the differences in perceived risks based on the physicians’ geographical location.

My results are consistent with the existence of defensive medicine. First, with respect to their propensity to increase laboratory tests and reduce Caesarean sections, physicians who own their clinics (“physician-owners”) in Taiwan reacted more strongly to the legal changes than did physicians who are salaried employees at larger hospitals (“nonowners”). Physician-owners’ behavior did not change, however, in discretionary expenditures that were not associated with defensive medicine. Second, physician-owners working in areas under the jurisdiction of the Taipei District Court reacted more strongly to legal change than did those practicing in Kaohsiung, Taiwan’s second largest city, at the opposite end of the island.

The negative connection between the likelihood of Caesarean deliveries and increased malpractice liability deserves special mention, since most published studies find a positive association between malpractice liability risks and Caesarean rates. However, economists Janet Currie and Bentley MacLeod at Columbia University suggest that reforms in which liability is closely aligned with defendant’s actual levels of care may produce the opposite effect. In the Taiwan context, increased medical malpractice liability accrues directly to the physician-owners. Since Caesarean sections are generally riskier than natural deliveries, it seems logical that higher tort liability in Taiwan may actually decrease the likelihood of deliveries by Caesarean sections. In this sense, my study confirms Currie and MacLeod’s predictions and empirical results.

My work contributes to our understanding of health law and policy in several concrete ways. First, I add support to the existence of defensive medicine, even in a non-Common Law jurisdiction. Since I focus on Taiwan—an environment that lacks malpractice insurance, in which physicians are either owners or employees at providers of varying sizes—my research isolates the pure effect of malpractice liability to a greater extent than do many current studies. Second, I show that interaction between the payment and legal systems may either enhance or mitigate the hypothetical pure effects of legal policies. In a fee-for-service system, physicians subject to higher malpractice risks appear much more willing to increase laboratory tests than to reduce profitable Caesarean sections. Third, my research indicates that, by altering physicians’ exposure to risks, different organizational forms and ownership structures of health care provision may affect defensive medicine at differing rates.

In sum, the practice of “defensive medicine” appears not to be a uniquely American phenomenon. Indeed, it may also play a role in health care cost escalations in Asia, especially under heightened physician liability regimes.

-------------------

Shorenstein APARC Dispatches are regular bulletins designed exclusively for our friends and supporters. Written by center faculty and scholars, Shorenstein APARC Dispatches deliver timely, succinct analysis on current events and trends in Asia, often discussing their potential implications for business.

It is routine in U.S. foreign policy for a pot not boiling over to be moved to the back burner. Precisely because the North Korean issue is not boiling, however, might offer an all-too-rare chance to make progress with Pyongyang. Over the past several months, the North has signaled publicly and privately that it is in engagement mode. In Washington, arguments abound about whether or not this is a stall tactic or a trick, but we'll never know if we don't move ahead with serious and sustained probing of the North's position. So long as our government sticks to an all-or-nothing approach in terms of Pyongyang, the opportunity to advance vital U.S. security interests in northeast Asia could be lost.

Underlying Washington's current position are two beliefs, so firmly held that they approach dogma. The first is that we should wait until the situation with North Korea breaks in our favor or sanctions force North Korean leadership to reassess its attachment to nuclear weapons. A year into the Obama administration, this waiting borders on self-imposed paralysis even though North Korea remains capable of badly damaging regional stability as well as U.S. nonproliferation goals. So instead of positively defining and shaping the realities on the ground, we have taken shelter behind fixed positions: enforcing U.N. Security Council sanctions and demanding that the North make progress on denuclearization at the Six-Party Talks. These may be useful parts of an overall policy, but they cannot be effective by themselves and must be handled carefully.

Sanctions will inevitably get in the way of diplomatic progress, and there needs to be a way to use their loosening--as much as their tightening--in support of negotiations. Moreover, Washington's single-minded insistence that the North return to the Six-Party Talks actually has ceded to Pyongyang a great deal of tactical initiative. There is nothing the North Koreans love more than leaping over our heads to a new position just as we think we have them cornered. As such, in mid-January, they reversed their opposition to talks in the framework of the September 2005 Six-Party joint statement and have proposed that talks proceed on all fronts simultaneously.

The second part of Washington's dogma is that there is no sense in negotiating with Pyongyang because history shows that agreements with North Korea always fail and the United States ends up snookered. But the idea that our deals with the North have all been useless is based on a flawed reading of the record, a lingering misrepresentation of the accomplishments of the 1994 U.S.-North Korea Agreed Framework. In fact, the utility of that agreement (which lasted from 1994 until 2002) is still evident. Without it, North Korea would have produced far more fissile material and a significantly larger arsenal of nuclear weapons. Two hulking, unfinished North Korean nuclear reactors testify to its lasting legacy.

Reinforcing the belief that we don't need to, or shouldn't, pursue an active policy toward North Korea is the Obama administration's apparent concern that it will be vulnerable to charges of being "weak" if it approaches Pyongyang from anything but the toughest position possible. Thus, on the grounds that the September 2005 joint statement calls for progress on the North's denuclearization before talks can begin on replacing the 1953 Korean Armistice with permanent peace arrangements, Washington rejected out of hand Pyongyang's recent proposals to move on both issues simultaneously. We may find it difficult to hold that position because it is neither what the joint statement actually says nor what some of the other parties (especially the Chinese) intended.

The fundamental U.S. goal is exactly right: We want North Korea to denuclearize and to return to the international nuclear nonproliferation regime. But stating the goal isn't the same as moving closer to it. To do so, we must accomplish things that can help stabilize the situation, make it less likely that the strategic threat from the North will get worse, and begin exploring with Pyongyang a range of ideas for reducing tensions on the Korean Peninsula and in the region. A couple of mid-term steps could include a halt in nuclear testing and long-range ballistic missile launches, along with a complete freeze of the Yongbyon nuclear center, which would involve further decommissioning and a return of international inspectors.

These interim steps won't "solve" the nuclear problem, but they aren't beyond what we can accomplish. They will do considerably more to protect our interests and those of our allies than the current all-or-nothing policy, which is going nowhere fast.