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Background  How much does the medical malpractice system affect treatment decisions in orthopaedics? To further this inquiry, we sought to assess whether malpractice liability is associated with differences in surgery rates among elderly orthopaedic patients.    Methods  Medicare data were obtained for patients with a rotator cuff tear or proximal humerus fracture in 2011. Multivariate regressions were used to assess whether the probability of surgery is associated with various state-level rules that increase or decrease malpractice liability risks.    Results  Study results indicate that lower liability is associated with higher surgery rates. States with joint and several liability, caps on punitive damages, and punitive evidence rule had surgery rates that were respectively 5%-, 1%-, and 1%-point higher for rotator cuff tears, and 2%-, 2%- and 1%-point higher for proximal humerus fractures. Conversely, greater liability is associated with lower surgery rates, respectively 6%- and 9%-points lower for rotator cuff patients in states with comparative negligence and pure comparative negligence.    Conclusions  Medical malpractice liability is associated with orthopaedic treatment choices. Future research should investigate whether treatment differences result in health outcome changes to assess the costs and benefits of the medical liability system.    Supplementary Information  The online version contains supplementary material available at 10.1186/s12913-021-06544-8.

bmc health services research

State medical malpractice laws and utilization of surgical treatment for rotator cuff tear and proximal humerus fracture: an observational cohort study