Defending the risk
Against this backdrop, it is no wonder that some doctors feel they must practise defensively to minimise the increased risk of receiving a complaint or a claim.
In an MPS survey of private GPs in 2012, 76% of members said they were very aware of significant growth in medical negligence claims and complaints in South Africa.2 Fifty eight per cent said they had changed the way they practise as a result. Some of the changes cited are undoubtedly positive: 86% of doctors revealed that they keep more detailed medical records as a result of increased complaints and claims.3
Good medical records are the cornerstone of a successful defence, but equally provide the basis for quality and consistent clinical care. One MPS member said: “I have improved my note taking of a patient’s condition; even the time of day that I saw the patient is written down in the file. I keep copies of referral letters and other administrative papers that patients request of me. I use computer-based recordings of sent SMS -messages.”
Eighty three per cent said they are more careful to ensure that suitable follow-up arrangements are in place.4 Another member described a heightened awareness of the need for good communication: “I spend more time with patients. Consultations are taking longer as I try and explain risks, benefits, and complications with patients.” Perhaps an increase in claims has helped to focus minds on the importance of following existing HPCSA guidance.
Mindful medicine does have its advantages. Yet not all the changes in practice in an increasingly litigious world are as positive, or in the patient’s best interests. It is important not to create a culture of fear, or a culture of practising medicine defensively for the doctor’s, rather than the patient’s, sake. Defensive medicine is different from defensible practice, which is good practice. Defensive medicine is commonly defined as the ordering of tests or treatments to help protect the doctor rather than to further the patient’s diagnosis.
Professor David Studdert, ARC Laureate Fellow at the University of Melbourne, identified two types of defensive medicine:
- Assurance behaviour (positive defensive medicine) – providing services of no medical value with the aim of reducing adverse outcomes, or persuading the legal system that the standard of care was met, eg, ordering tests, referring patients, increased follow up, prescribing unnecessary drugs.
- Avoidance behaviour (negative defensive medicine) – reflects doctors’ attempts to distance themselves from sources of legal risk, eg, forgoing invasive procedures, removing high-risk patients from lists.5
Sixty five per cent of GPs interviewed acknowledged that they conduct more investigations as a result of increased complaints and higher value claims, with 67% revealing that they now refer more patients for a second opinion – typical assurance behaviour.6
One MPS member said: “We are forced to do unnecessary tests that drive costs of healthcare up because of pressure from medicolegal actions.” Some tests may be invasive and have their own inherent risks, and doctors could potentially be criticised for ordering investigations that are not in patients’ best interests (eg, if the risks associated with the procedures outweigh any potential benefit to the patient).
Avoidance behaviour is evident in the fact that 61% have chosen to stop dealing with certain conditions or performing certain procedures. Twenty nine per cent say they had a lower threshold for removing patients from the practice list.7
Such decisive action may resolve a difficult situation with a challenging patient quickly in the short term, but it may also encourage complaints from those who feel they have received poor care, or who have not been given an open and honest explanation of what went wrong, and why, if there has been an adverse event. What is defensive medicine to one person may be high quality care to another.8