Defensive medicine is the practice of conducting medical procedures primarily to avoid possible malpractice liability. There are two types of defensive behavior: assurance and avoidance. Assurance behavior involves performing unnecessary procedures to avoid malpractice liability. In a study of 824 Pennsylvania physicians, 93% of physicians reported practicing defensive medicine in which assurance behavior was very common. Among those physicians, 42% reported restricting their practice to avoid high risk patients. Taking liability is not part of the traditional medical curriculum. However, a study of 202 students and residents at Northwestern University found that 92% of students and 96% of residents have encountered defensive medicine in their clinical training. Nearly half of the students and residents reported that their attending physicians explicitly advised them to consider malpractice liability when making decisions.
Costs of Defensive Medicine
Defensive medicine costs cannot be measured accurately due to imprecise definitions and difficulty in distinguishing defensive practices from necessary medical care. However, there have been various attempts at estimating the costs. A famous and controversial study by Kessler and McClellan estimated that tort reforms could reduce entire healthcare costs by five to nine percent . In 2003, the Bush administration interpreted these figures as a $60-180 billion cost. The credibility of the Kessler-McClellan study is debated because the health system’s cost extrapolations were based on a small study and sample space. However, the Kessler-McClellan’s numbers are used frequently, to suggest that defensive medicine is a significant factor in rising health care costs. A recent study by Mello, Chandra, Gawande and Studdert conservatively estimated the cost at $45.6 billion, which is approximately 2% of total national health care spending. Regardless of the exact financial damage defensive medicine results in, policy makers are recognizing the importance of tackling defensive medicine to curtail rising healthcare costs. Two solutions for curbing defensive medicine have been suggested and implemented in some states: apology laws and malpractice caps.
High-tech imaging has been implicated in driving up health costs  and researchers have blamed defensive medicine for the overuse of imaging for defensive purposes. A recent study of 2,068 imaging orders prescribed by 72 orthopedic physicians showed that 19% were ordered for defensive purposes. The study also indicated that physicians involved in lawsuits in the previous five years were more likely to practice defensive imaging. Besides the costs and time lost due to medically unnecessary imaging exams and lab tests, patients may be exposed to health risks. The exams expose patients to unnecessary radiation and anaphylaxis. There are critics who claim that excessive imaging is contributed to other factors such as profits from self-referred imaging .
Physician litigation has contributed to an inflation in malpractice insurance premiums. In 2000-2002, premiums rose an average of 15% annually in the US . Riskier specialties experience much more growth. For example, Dr. Sharyl Attkisson (an OB/GYN) paid $23,000 in 2002 and $47,000 in 2003 for insurance. Over 30 states have responded by imposing malpractice caps, limits on the amount patients can win in malpractice lawsuits. The typical cap is $250,000-750,000 for "non-economic" damages, such as pain, suffering and decrease in the quality of life . There is evidence, however, that lawyers have found a way around this restriction by focusing more on "economic" damages, such as lost wages and hospital bills. In 2003 in Cook v. Stanford Health Services, a mother and her son were awarded $70.9 million when doctors failed to diagnose the son with a metabolic disorder . $56.3 million was for future medical services and special education and $14.1 million for the loss of future earnings. The remaining $500,000 was for non-economic damages, but this was capped at $250,000 in California. Some critics question the constitutionality of economic caps, claiming that they violate the separation of powers because it "unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury’s assessment of damages is excessive within the meaning of the law" .
In the event of a medical error, apology and disclosure are often superseded by the fear of malpractice lawsuits. Full disclosure to the patient is the most professionally responsible course of action. Without it, patients could endanger themselves by making ill-informed health care choices. Also, disclosure promotes honesty that patients deserve from their physicians. For the physician, an apology can help mitigate feelings of guilt. For the patient, it can reduce anger or confusion which can enable forgiveness. A survey of 227 patients and relatives revealed that “insensitive handling and poor communication” of a medical error contributed to their decision to take legal action . It revealed four main themes behind litigation: concern with standards of care, the need for an explanation, compensation, and accountability. Patients choosing legal action wanted greater honesty, an appreciation for the trauma caused by the mistake, and assurances that lessons were learned from this. Openness about errors is important for professional learning, patient safety and public trust in the health care system . To address the conflicting demands between safety and ethical obligations of apology and the fear of malpractice litigation, apology laws were introduced to reduce legal concerns about apology. These laws specify that a physician’s apology is inadmissible in court with the intent to encourage patient-physician communications. They emerged in the United States in the 1990s to improve medical error reporting and patient safety . A 2010 economic study of state-level apology laws revealed that they “in the short run increase the number of resolved cases while decreasing the average settlement payment for cases with more significant” injuries .
Resistance to Disclosure - Professional Norms
Some argue that apology laws are unnecessary for physicians to exercise disclosure, and that they could make it more difficult for legitimate malpractice claims to succeed . However, some believe the problem lies in the professional norms of physicians – norms that are unaffected by apology laws. A 2006 analysis stated that these laws will not overcome several barriers . For example, apology laws will not eliminate the physician’s fear that patient will file a claim. Also, these laws threaten the medical community’s idealization of the physician as infallible. Physicians worry that to admit errors imply removing this infallible perception and undermine patients’ trust. Another factor is the immense amount of guilt in physicians who have committed mistakes. The anxiety of guilt is increased around people who are connected to the event, which would explain why physicians avoid patients after mistakes. In addition, the guilt of withholding information worsens the guilt of the mistake, making it harder to disclose. An imbalance in the physician-patient relationship exists that inhibits self-disclose also. Due to wide gap in knowledge between physicians and patients, physicians are able to hide mistakes. In addition, the patient is the one sharing information about themselves while the physician has no such obligation. It is possible that physicians will approach apology laws with skepticism because they are developed by lawmakers and not the medical community.
Moreover, the Canadian Medical Protective Association (CMPA) advised physicians in jurisdictions that did not have apology legislation to be aware that an apology or admission of fault could be admissible in court. The CMPA also emphasized “to avoid the use of words that express or imply legal responsibility, such as negligence, liable, fault or failing to meet the standard of care” . This statement intends to restrict apologies while limiting communication between the patient and physician.
Given the barriers mentioned earlier, implementing effective apology laws requires certain changes. It is apparent that physicians and health care workers need proper training on how to exercise disclosure when a medical error occurs. More importantly, they need a greater awareness of their legal, ethical, and professional obligations in those situations. A person leading this effort is Dr. Michael Woods. Dr. Woods is a recognized authority on physician personal leadership, behavior, and communication; physician-patient relationships, and strategies to reduce medical malpractice. In his book Healing Works: The Power of Apology in Medicine, he introduces the Five R’s to help health care providers understand how to apologize :
- Recognition: Know when an apology is in order.
- Regret: Respond empathetically. Remember that saying I’m sorry doesn’t imply fault on your part.
- Responsibility: Be accountable for the problem, even if it was unforeseeable. Disclose all details that lead to the outcome and explain why it happened.
- Remedy: Explain to the patient what’s being done to correct the problem.
- Remain Engaged: Be there for your patient. Focus on and provide for your patient’s needs after the outcome or complication.
Dr. Woods is also the founder of Civility Mutual Educational Services, an organization that provides new relationship-based education materials to health care providers and their organizations. These materials are intended to improve relationship-based health care, resulting in safer patient care, greater provider and patient satisfaction, and reduced malpractice liability. Relationship-based care is a result of providers building a relationship of mutual respect with their patients, thus improving quality of care . Effective communication creates and maintains this relationship. A significant element of this is when physicians recognize differences between themselves, their coworkers, and their patients such as literacy, ethnicity, and gender.
Several elements of professionalism are related to defensive medicine. When physicians exhibit assurance or avoidance behavior, they are avoiding accountability and their professional responsibility to provide their clinical judgement. As stated by Johnson and Ridley, effective communication is necessary for professionals to convey understandable and useful information to their clients . This includes actively confronting and correcting any misunderstanding of their work. Dr. Woods, through his organization, provides services to facilitate communication between physicians and patients.
Defensive medicine demonstrates mistrust and/or miscommunication between physicians and patients, which deviates from an ideal professional-client relationship. Physicians treat their patients as customers (i.e. the customer is always right) rather than clients. The threat of litigation limits the autonomy that physicians have and the freedom to exercise their professional judgement. This in turn decreases the range of physicians services available to the public as physicians refrain from high-risk procedures. Physicians are similar to corporate whistleblowers, if they try to use their professional judgement and it does not conform to certain expectations (e.g. refraining to do a unnecessary procedure the patient wants), they are punished or suffer unintended consequences.
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