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patients to sue their physicians [29]. The objective of this study was to empirically assess whether state tort regimes are associated with surgery rates for two common shoulder conditions to explore defensive medicine in orthopaedics. Our hypothesis is that tort rules that lower legal liability could encourage physicians to undertake greater risk and therefore increase utilization of orthopaedic surgeries. We also hypothesize the converse, that tort rules that increase liability are associated with reductions in orthopaedic surgical procedures. Our study contributes to the vast literature on medical malpractice in several ways. Existing research has shown little consistent relationship between tort liability and measures of defensive medical practices [30, 31], possibly because studies investigate different medical contexts. Most studies focus on obstetrics/gynecology [32–49] or chronic conditions such as heart disease [50–52], neurology [53–58], or Medicare patients in general [59– 61]. Our study instead focuses on orthopaedics, an important medical specialty that is understudied in the medical malpractice literature, and is among the medical specialties with the highest risk for medical malpractice claims. Methodologically, few studies in orthopaedics go beyond survey methods to assess the impact of tort liability on physician treatment choices [21, 62–65]. Beyond orthopaedics, many studies also simply surveyed physicians [21, 38, 39, 53, 55, 62, 66–68], an approach that is likely to elicit self-interested reporting bias from physicians. We will adopt a more objective measure by examining treatment choices in claim databases. Finally, most studies evaluating the effects of tort liability focus on establishing positive defensive medicine [21, 52, 60–62, 66, 67, 69–71]. By assessing avoidance behavior, our work is also important because of the social burden resulting from avoiding patients requiring care in response to different liability regimes. Our results are the first step to help calibrate the need to balance the tradeoff between patient compensation for iatrogenic injury and the law’s undue influence on physician decision-making. Methods Data and sample Data for our study included complete Medicare claims and beneficiary summary files from years 2010–2012 for all Medicare patients in the United States with any physician service for one of 192 shoulder-related diagnoses in 2011. To identify incident diagnoses, beneficiaries with any shoulder-related diagnosis within 365-days prior to their index shoulder diagnosis in 2011 were excluded. Beneficiaries diagnosed with proximal humerus fracture (PHF) or atraumatic rotator cuff tear (ARCT) with an index date in 2011 were then identified using specific algorithms described below. Data from 2010 were used to measure baseline patient characteristics and to exclude patients with non-incident shoulder conditions in 2011, and data from 2012 were assessed to identify subsequent use of surgery. This project was approved by the University of South Carolina Institutional Review Board. Proximal Humerus fracture sample The PHF sample was identified by International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM) diagnosis codes: 812.00, 812.01, 812.02, 812.09, 812.10, 812.11, 812.12, 812.13, and 812.19. The first observed diagnosis date in 2011 was defined as the index date. Beneficiaries with no X-ray of the shoulder or upper extremity within 7-days of their index PHF 1 Research has shown that the cost of “defensive medicine” is fairly limited. However, in the period leading to the wave of state tort reforms, the common perception was that frivolous medical malpractice lawsuits against physicians increased healthcare expenditures and clogged the courts. Legal reforms to limit medical malpractice claims were therefore thought to provide a solution to the perceived impending crisis. Subsequent studies, however, suggest that the reality is far more nuanced. In a comprehensive review, Sloan and Chepke [25] argued that four discrete segments (legal, medical malpractice insurance, medical care, and government activity) interact to result in a highly complex medical malpractice environment. Avraham et al. [26] found, for example, that some tort reforms reduced insurance premiums, but only for employer-sponsored plans rather than capitated HMO plans [26]. Friedson [27] concluded that caps on noneconomic damages reduced insurance reimbursements for certain procedures, but providers did not reduce charges to insurers . Thorpe [28] reported that state with caps on malpractice claims had insurance premiums that were 17.1% lower than states without caps. Still, Thorpe questioned whether these reductions were consistent with other goals promoted by the medical liability system. Thus, while perceptions may have provided the political impetus to drive tort liability reforms, the results of the reforms are far from uniform and highly context-dependent. Chen et al. BMC Health Services Research (2021) 21:516 Page 2 of 11 diagnosis were excluded to limit the potential for misdiagnosis. Atraumatic rotator cuff tear sample Presence of ARCT cannot be confirmed without radiologic evidence or surgery. To limit misdiagnosis, patients with no MRI within 90-days of the date of initial shoulder problem in 2011 were excluded. Then, patients with
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