Practicing defensive medicine not uncommon
Tort reform shown to be ineffective
Although the prevalence of "defensive medicine" — unnecessary tests, referrals, treatments, or avoidance of some patients altogether out of fear of malpractice litigation— has been the subject of debate, a new study reports hundreds of physicians in Pennsylvania say they practice defensive medicine regularly.
Unnecessary deviation from standard care
"Defensive medicine" is defined as a deviation from sound medical practice that is induced primarily by a threat of malpractice suits. It can take the form of "assurance behavior," such as ordering unnecessary tests, referrals, or treatment. Or it can take the form of "avoidance behavior," such as refusing to treat particular patients.
David M. Studdert, LLB, ScD, MPH, associate professor of law and public health and colleagues at Harvard conducted a study to determine whether, during a more volatile period in malpractice insurance markets, physicians’ uncertainty about the costs and availability of coverage may induce a wider array of defensive practices, affecting not only the cost of health care but also its accessibility and quality. The study was published in the Journal of the American Medical Association in June (2005; 293:2,609-2,617).
Studdert says Pennsylvania was chosen as the pool for the study because it has been particularly hard-hit by malpractice claims and increasing premiums. The survey was done in 2003, shortly after several liability insurers had left the state and premiums charged by the remaining insurers had risen dramatically.
The survey asked physicians in six specialties at high risk of malpractice claims — emergency medicine, obstetrics/gynecology, general surgery, radiology, orthopedic surgery, and neurosurgery — about the frequency and nature of their defensive practices.
More than 90% of the 824 physicians who participated in the survey reported using defensive practices such as over-ordering of diagnostic tests, unnecessary referrals, and avoidance of high-risk patients, according to Studdert, a finding that surprised researchers.
"We were surprised that the practice is so prevalent," says Studdert, who acknowledges that opinions on the extent of defensive medicine differ widely. "It exceeds what was found in most other studies. The factor that differentiated this finding was this particular population — specialists at high risk of lawsuits in a state hit hard by the current malpractice crisis."
He says defensive medicine may supplement care (with additional testing or treatment, for example), replace care (e.g., referral to another physician), or reduce care (if the physician refuses to treat particular patients). Assurance behavior practices (sometimes called "positive" defensive medicine), involve supplying additional services of marginal or no medical value with the aim of reducing adverse outcomes, deterring patients from filing malpractice claims, or persuading the legal system that the standard of care was met. Avoidance behavior (sometimes called "negative" defensive medicine), reflect physicians’ efforts to distance themselves from legal risk. Defensive medicine, particularly avoidance behavior, encompasses both day-to-day clinical decisions affecting individual patients and more systematic alterations of scope and style of practice, Studdert’s team found.
For example, when the standard of care for a known or suspected diagnosis calls for a few simple initial tests to evaluate symptoms, physicians instead will order batteries of additional, often expensive, tests. The reasoning, physicians and legal experts say, is that it is easier to defend against a lawsuit when a test or procedure has been performed than if it was excluded, even if the additional tests would not have made a difference in the outcome.
The vast majority (93%) of the physicians surveyed say they practice defensive medicine, with diagnostic imaging procedures being the most common act. When asked what their most recent defensive act was, 43% told researchers they used imaging technology in clinically unnecessary circumstances.
Forty-two percent of respondents reported they had taken avoidance measures to restrict their practice in the previous three years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious.
In a 2002 poll, Harris Interactive surveyed 300 physicians, 100 hospital-based nurses, and 100 hospital administrators. Physicians responded that they order unnecessary tests (79% of respondents), make unnecessary referrals (74%), suggest unnecessary biopsies (51%), and prescribe unneeded antibiotics (41%) with the goal of protecting themselves against malpractice claims.
Examples of unnecessary care and avoidance of risky care include performing breast biopsies in women with lumps unlikely to be cancer, hospitalizing low-risk patients with chest pain, and eliminating high-risk procedures or abandoning the practice of medicine altogether.
Decisions based on risk of liability
Studdert says doctors were asked specifically if their actions were in response to the threat of liability.
"If it were just a patient asking for additional tests, I think they would not feel pressed to order unnecessary tests," he says. "But in reality, it’s a little blurry.
"If the patient asking for the test triggers in the physician’s mind a threat of liability, then [if the physician orders the unnecessary test] it’s done for the explicit purposes of guarding against liability."
As for possible solutions that might help physicians abandon some defensive medical practices, Studdert says he hopes those do not include more of the same tort reform measures that have been put in place already.
"What I hope [the study findings] don’t stimulate is further single-minded focus on tort reform and caps on damages," he says. "We’ve seen tort reforms in the past, and I think more creative solutions are called for."
He wrote that efforts to reduce defensive medicine should concentrate on educating patients and physicians about appropriate care in the clinical situations that most commonly prompt defensive medicine, and decrease the financial and psychological vulnerability of physicians in high-risk specialties to fluctuations in the liability system.
Peter P. Budetti, MD, JD, of the University of Oklahoma Health Sciences Center in Oklahoma City, who wrote an editorial accompanying the report by Studdert’s team, says the tort reform measures taken thus far in the United States have failed to stem the rising tide of medical liability claims, indicating that efforts should be focused instead on reducing the number of medical errors and, consequently, the number of lawsuits.
"[N]ow is the time for the disparate and opposing forces to find a way to focus together on the large number of patients who die unnecessarily each year from medical errors rather than a continuance of actions reflecting the visceral antipathy of many physicians and lawyers to one another," he wrote.
Resources
- Harris Interactive/The Harris Poll, "Most Doctors Report Fear of Malpractice Liability Has Harmed Their Ability to Provide Quality Care: Caused Them to Order Unnecessary Tests, Provide Unnecessary Treatment and Make Unnecessary Referrals." May 2002. Available on-line at www.harrisinteractive.com/harris_poll/index.asp?PID=300.
- Budetti PP. Tort reform and the patient safety movement — Seeking common ground (editorial). JAMA 2005; 293:2,660-2,662.
Source
- David M. Studdert, LLB, ScD, MPH, Associate Professor of Law and Public Health, Department of Health Policy and Management, Harvard School of Public Health, Boston. E-mail: [email protected].
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