Issues around Defensive Medicine and Medical Malpractice Risk

Every day, doctors face pressure to choose between practicing defense medicine or trying to lower healthcare costs. A patient comes in, and even if the physician thinks the best treatment is 'wait and see,' they must think twice about that course of action. If he or she misses a diagnosis and the patient sues, the attorney will blame the doctor for not having done more diagnostic tests.

How should a physician deal with this? "Overutilization" -- ordering tests or performing procedures when medically you could simply trust your own clinical judgment -- is the bogeyman that all sides of the political spectrum agree needs reforming. As a result, the heavy scrutiny physicians currently face from all parties will only intensify as the costs of health are driven up. Healthcare bills presently in Congress would rank doctors against their peers and financially punish those whose "resource use" is considered too high. Despite these disincentives, even against their better judgment, physicians will continue to practice "defensive medicine" to reduce their chance of facing a medical malpractice lawsuit. This places physicians between a rock and a hard place. Recent studies show, for example, that in Emergency Departments in the U.S. the ordering of CT scans has increased six-fold over the past 10 years, while the technological improvements in terms of imaging quality have only moderately improved, and yet, when faced with abdominal pain, or headaches, or pelvic pain or any pain for that matter where the diagnosis is uncertain, the Emergency Physician will usually order the study, even if the probability of a positive diagnostic finding is remote. And in most venues, this has become the de facto standard of practice in Emergency Medicine. Most Emergency Physicians in fact feel that it's almost the standard of care to do a CT [computed tomography] scan for every head injury, especially in motor vehicle accidents. This practice is designed to avoid missing any problem that the physician's clinical judgment suggests may be extremely remote.

In effect, the legal system encourages defensive medicine. And to some extent it drives the standard of care. A doctor can be right a hundred times in a row. But if the next case produces an adverse consequence to the patient, it can end up in court. The message is still that if you miss something, you'll get sued. And because of this, any arguments about cost reduction in healthcare do not effect the way doctors will practice medicine. In fact, the opposite occurs. Cost containment policies have resulted in doctors seeing more patients, more quickly, with shorter doctor to patient exposure time. In this setting, it is much easier to order more tests to cover bases that the doctor would normally cover with a comprehensive face to face evaluation if there was time for it.

Physicians will err on the side of doing too much rather than face a plaintiff's attorney, years later, asking them on a witness stand, "Why didn't you do this simple test to rule out . . .?" But physicians will argue that the test was unnecessary and will point to the literature as well as rely on expert testimony. What is the difference between solid "careful" medicine and defensive medicine? If a physician practices medicine in accordance with their training, education, and experience and comport with acceptable standards of practice in their own specialty, then bad outcomes are usually defensible even when diagnostic studies were not obtained that would have made the correct diagnosis. For example, paradigms of care have been devised by medical specialty societies as pathways to proper practice. For example, the Ottawa ankle rules help physicians decide if a patient with foot or ankle pain should get an X-ray to diagnose a possible fracture. They were established because only 15% of X-rays are positive for fracture. When these well-regarded rules are followed, they've significantly reduced unnecessary X-rays.

Nevertheless, many physicians are still risk adverse and would rather order a potentially superfluous study, then risk the consequences of a missed diagnosis. Plus, these days more patients are demanding these studies.

Back to our emergency medicine example, much defensive medicine occurs in emergency departments. Emergency department physicians argue they need to test extensively so they won't miss serious diagnoses such as heart attacks, strokes, and blood clots, which can be fatal. After all, these doctors don't have ongoing relationships with patients and worry that many won't get the follow-up care they recommend. Emergency department physicians rightly fear that they'll be sued if a patient's condition deteriorates after discharge. It's hard to draw a line between being appropriately cautious and being overly aggressive. In this context, defensive medicine might actually be really good medicine. If the goal is to make the diagnosis so treatment and disposition of the patient is on point, then emergency physician's must do whatever is necessary to uncover that diagnosis; and that means ordering many tests, the bulk of which will be negative. In hindsight it is easy to be critical of a physician's ordering history because of a predominance of negative studies, but if this is evaluated prospectively, these physicians have the lowest rates of missed diagnoses and bad patient outcomes. So it is a double edged sword. Most physicians would consider the latter careful, patient-focused medicine.

Are medical malpractice fears really justified? Should physicians really worry about their risk of lawsuits? The opponents of tort reform argue that physician fears of malpractice litigation are exaggerated. More than 90% of initially screened malpractice cases are closed without payment, and when there is a trial, the physician-defendant wins 89% of the time, according to claims data from 1985 through 2007 compiled by the Physician Insurers Association of America. Additionally, 24 states now have imposed caps on awards for pain and suffering and 6 other states cap total damages. This is a disincentive to trial lawyers considering whether or not they will accept any particular medical malpractice case. However, no doctor wants to be sued even if they know that their case is 100% airtight defensible because of the stresses associated with the process of being sued: the preparation, meetings, depositions, trial and all the worry, fear and headache that goes along with it. As for tort reform's effect on the cost of medicine, in states that have been capped, there is little evidence that defensive medicine has decreased. Malpractice premiums may have decreased, but the frequency of litigation has not changed much at all.

So, given the complexity of this issue, what is a physician to do? Unfortunately, even physicians who want to lower healthcare costs can do little differently without putting themselves at risk. Practically speaking, defensive medicine won't be reduced until physicians' fear of being sued is eliminated. And that probably will never occur. What physicians can do is improve their communication skills with their patients, discuss options, involve the patient in their own care, and document, document and document everything including the discussion with the patient, why something was or wasn't done, and what their thinking is about the condition and all the possible other diagnoses. Physicians must established good open friendly relationships with their patients, and in the case of the Emergency Room, it is probably prudent to err on the side of ordering all the tests necessary to support the practice of "GOOD CAREFUL MEDICINE"!

Copyright © 2020 - & Dr. Barry Gustin