Defensive Medicine and Obstetric Practices

35 Pages Posted: 13 Jul 2009 Last revised: 17 Mar 2020

Date Written: March 1, 2012


Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of non-economic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no evidence to support the claim that malpractice pressure induces physicians to perform a substantially greater number of cesarean sections. Extending this analysis to certain additional measures, however, I do find some evidence consistent with positive defensive behavior among obstetricians. For instance, I estimate that the adoption of a non-economic damage cap is associated with a reduction in the utilization of episiotomies during vaginal deliveries, without a corresponding change in observed neonatal outcomes.

Keywords: malpractice, defensive medicine, cesarean, damage cap

JEL Classification: I10, K13

Suggested Citation

Frakes, Michael, Defensive Medicine and Obstetric Practices (March 1, 2012). Journal of Empirical Legal Studies, Forthcoming, CELS 2009 4th Annual Conference on Empirical Legal Studies Paper, Duke Law School Public Law & Legal Theory Series No. 2020-12, Available at SSRN: or

Michael Frakes (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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