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The explosion of defensive medicine

28 February 2019
Dr Graham Howarth, head of Medical Services in Africa at Medical Protection, looks at why doctors are practising more defensively and how to minimise the practice.

The most common definition of defensive medicine is recommending tests or treatments that are not necessarily the best option for the patient but minimise the risks of a complaint or claim.

Breaking down the defence barriers

Doctors, who find themselves referring patients who come in with a cold, or ordering tests on everyone they see, could well be practising defensive medicine. While this checkbox style medicine may be more protective of doctors, it could result in otherwise healthy patients undergoing risky procedures.

Dr David Studdert, a leading expert in the fields of health law and empirical legal research, identifies 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.

The drivers

A 2018 Medical Protection survey of over 500 medical members in South Africa found that nearly three quarters of respondents (73%) said that the way they practise has changed over the last five years and 47% of respondents say that they practise more defensively.

Fear of being sued

Furthermore, 40% either agreed or strongly agreed that they have increased stress, anxiety and fear of being sued, and 26% said they were fearful of being complained about or sued when dealing with patients. Doctors who fear there is a chance they may be sued are more likely to demonstrate risk avoidance.

Personal impact

Reputational damage, lost time and the emotionally draining effects of litigation are often perceived to be costlier than taking extra precautions in the first instance.

Avoiding the media

In a survey of Medical Protection members around the world, 70% stated that media criticism of health professionals contributed to their defensive practice.

Hero complex

To help earn a reputation as a good doctor or even a ‘hero’ to some patients, doctors may order multiple tests where the pre-test probability of disease was low but would inevitably pick up on early-stage malignancies and other pathologies.

Avoiding defensive medicine

“Medical Protection has seen a 57% increase in the number of medical negligence claims reported between 2008 and 2017. It is therefore not surprising that doctors are practising defensively to reduce their risk of receiving a complaint or claim.

“However, over-cautious doctors are not less likely to receive a clinical negligence claim. Many claims arise not because of substandard care, but because of a failure in communication between the doctor and patient, said Dr Howarth.

“If a claim for clinical negligence is brought against a doctor, they will be asked why they did or did not do something. A defence will not be based on the number of tests they did, but the clinical reasoning behind their actions. As long as a doctor can look back and justify their decision in accordance with a responsible body of opinion, they are safeguarding their practice.

“A good rule of thumb is to remember the HPCSA’s advice that all doctors should always regard concern for the best interests or well-being of their patients as their primary professional duty,” he concluded.

Medical Protection workshops on mastering your risk and mastering adverse outcomes both help in developing good communication with patients and using preventative skills and techniques to help reduce exposure to litigation and complaints.

Action is being taken to address the costs and causes of clinical negligence. Medical Protection has set out a range of proposals for controlling clinical negligence costs in our report and also our submission to the South Africa Law Reform Commission.

Change won’t be immediate, however. In the meantime, it remains important for all doctors to ensure that their indemnity arrangements cover their area of practice, and to ensure that they start each new consultation from a principle of defensible practice – rather than defensive medicine.

How to minimise defensive medical practices

  • Identify why you are acting defensively
  • Be open about error
  • Offer a reasonable standard of care
  • Only order tests based on a thorough clinical history and examination
  • Document why tests are not ordered
  • Discuss difficult cases with colleagues
  • Keep clear and detailed documentation
  • Know what it is you seek to exclude or prove with a test to determine if it’s necessary
  • Identify learning needs (find a good mentor)
  • Undertake courses or independent study.
This article was originally published on the Medical Academic website