International Journal of Risk & Safety in Medicine 19 (2007) 75–86 IOS Press
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Tort, error and talk: What can we learn from the litigation crisis? Bruce Hugman ∗ PO Box 246, Amphur Muang, Chiang Rai, Thailand 57000 E-mail:
[email protected] Abstract. The impact of medical litigation and its controversial and damaging consequences are reviewed, along with a number of the proposals for tort and other reforms. As an important effect of the threat of litigation, the practice of defensive medicine is discussed. Proposals are made for improvements in the quality of doctor–patient relationships as a significant contribution to improved clinical care and reduction in the risk of doctors being sued.
1. Introduction The threat of being sued by a patient alleging negligence or error is a serious – often damaging – concern for doctors and healthcare providers, and it has a considerable impact on clinical practice, health economics and professional morale. The risk of injury or death caused by medical intervention is a profound concern for patients and their families, and they have a right to expect that risk is reduced as far as possible; that they will be protected from incompetence; that remedy will be available when errors occur. Serious concerns about the impact of medical litigation have been widespread in recent years and a heated debate has taken place about causes and remedies (see Appendix 1). Parallel to this has been the rise of the patient safety movement, prompted substantially by the groundbreaking IOM report in 2000, To Err is Human [43], with its disturbing evidence of the scale of avoidable injury and death in US hospitals. The launching of the UK National Patient Safety Agency [51], the US NCC MERP [48], the WHO World Alliance for Patient Safety [79], and planning for the Canadian Medication Incident Reporting and Prevention System [13], are examples of the high profile initiatives that have recently emerged, among many hundreds worldwide. Raising awareness, promoting error recognition and reporting, and reducing risk and injury to patients are the top agenda items. Two aspects of the debate about litigation and malpractice and the research they have generated have provided illuminating insight into physician–patient relationships: the practice of defensive medicine and patients’ motivation for suing. That the threat of litigation has a profound influence on clinical decisions and nursing practice, particularly in the use of defensive medicine, is a well-established truth (see Appendix 2), though its overall impact on medical costs, clinical outcomes and patient welfare * Bruce Hugman is consultant to the Uppsala Monitoring Centre, Uppsala, Sweden and to the Clinical Drug Evaluation Committee of the Shanghai Pharmacology Institute; visiting lecturer in communications, Rangsit University, Bangkok, Thailand.
0924-6479/07/$17.00 2007 – IOS Press and the authors. All rights reserved
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remains uncertain. That maybe only about one tenth of all patients who suffer injury ever seek legal remedy [16,25] prompts questions as to why proportionately so few of them become litigants. While enormous attention has been paid to the question of the reform of the systems deigned to remedy, punish or reduce medical malpractice [34], less attention seems to have been paid to the causes, particularly those that may arise within the doctor–patient relationship. While around 90% of avoidable injury and death may be attributable to systems and organisational failures [36], they are always mediated through (often multiple) individual relationships [15,60]. There is evidence that there are critical problems in some of those relationships which may affect what is defined as malpractice and provide the motivation to sue. This aspect, and its broad implications for medical relationships, is the primary focus of this article. What is malpractice? With no regard for pursuing a definition which would survive exhaustive legal scrutiny, malpractice is: . . .bad or unskillful practice by a physician or other professional in which the health or welfare of the patient . . . is injured . . . the patient must prove the healthcare provider did not comply with [accepted standards of practice] in their speciality. http://www.legal-definitions.com The issue is clouded by questions about non-negligent mistakes or lapses, systems failures, poor outcomes following good practice, inadvertent criminal liability, and many more [57].
2. Why do patients sue? In a comprehensive review of the literature on this question, Rane [58] draws attention to a radical issue which does not feature prominently in the malpractice reform debate: many patients sue because they are unhappy with some non-clinical aspect of the relationship with their doctor. Rane notes: ‘. . . there is poor correlation between medical negligence and a malpractice claim’. This surprising discovery is explained by two factors: that up to 90% of injured patients don’t seek remedy, and between a quarter and a half of filed claims do not involve negligence [56,67]. Only a minority of doctors are sued and a small fraction of those are sued frequently [62]; furthermore, ‘there are highly skilled doctors who get sued a lot and doctors who make lots of mistakes and never get sued’ [21]. So, if the correlation between negligent practice and being sued is weak, what is the explanation? Dr Ken Bottles [10] offers his personal view: . . .Discussions. . .all point to clear and consistent communication and adequate informed consent as key factors in preventing physicians from getting sued. . . Physicians are perceived as over-promising and under-delivering when it comes to healthcare.
A novel piece of research [1] recorded consultations between surgeons and their patients and came to this conclusion: Surgeons’ tone of voice in routine visits is associated with malpractice claims history. . . . This is the first study to show clear associations between communication and malpractice in surgeons.
The primary variables rated were: warmth, hostility, dominance and anxiety. It does not seem implausible that doctors with more warmth, and less hostility, dominance and anxiety are less likely to be sued; ‘. . . patients do not sue doctors they like’ [6]. (The lurking inference that doctors with higher hostility, dominance and anxiety might make more mistakes as well as being more likely to be sued is an intriguing one.) Interviewing malpractice attorneys, Berkeley Rice [59] developed a ten-point list of cardinal, nonclinical errors (see panel) which were believed to influence patients in their decision to sue. Many of
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Table 1 10 ways to guarantee a lawsuit 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
Don’t worry about keeping detailed records Don’t take time to document informed consent discussions ‘Fix’ records quickly when something goes wrong Trust the patient to follow through on referrals Don’t bother to track test results Don’t check the chart when ordering medication Diagnose over the phone Don’t care whether patients like you Assume each patient needs just a few minutes Don’t say anything if something goes wrong
B. Rice, Medical Economics Jul. 8 2005. http://www.memag.com/memag/article/articleDetail.jsp?id=168737.
these relate to openness and honesty of communication and to commonsense, prudent practices. Rice does not state this, but we can reasonably assume that discovery of such errors would greatly weaken a doctor’s defence once a claim went to court. A number of recent studies highlight the particular problem of disclosure of error and the importance of having a culture in which the process is psychologically and administratively enabled [20,41,63]. Patients want to be informed, and doctors who share and report their mistakes are more likely to change their practice [81]. It is however, Rane’s paper, exhaustively referenced, which covers this ground most completely. The evidence is overwhelming that inter-personal issues profoundly influence patients’ views of their doctors, their health outcomes and their potential for pursuing litigation. Rane also shows the influence of other variables in litigation patterns: some studies report that men are much more likely to be sued than women; although lists from different sources vary, it seems that neurosurgery, obstetrics and gynaecology and orthopaedics have the highest claim rates [66], along with breast and colorectal cancer and appendectomies [80]; sued once, a doctor is more likely to be sued again; poor and uninsured, elderly patients and, as shown by Bismark et al. in New Zealand, ethnic minorities also are less likely to sue [8]. (This last issue raises issues of social justice which belong to a rather larger reform agenda.) There is some evidence that tort reform itself may keep some legitimate claims out of court because lawyers may not take on cases in areas where non-economic (pain and suffering) damages have been capped [19]. Part of the filtering process for those who do sue, therefore, is the financial attractiveness of malpractice litigation for lawyers in any given location. The reduction of numbers of cases in such circumstances may, in part, lead also to reduction in the availability of remedy and justice. 3. What is to be done? In presenting their MEDiC1 bill to readers of the NEJM [12] Senators Clinton and Obama headline their reform: Making Patient Safety the Centrepiece of Medical Liability Reform. For the US and other countries where tort reform is an issue, they are clear about the priorities: – reduce the rates of preventable patient injuries, – promote open communication between physicians and patients, 1
National Medical Error Disclosure and Compensation Bill.
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– ensure patients access to fair compensation for legitimate medical injuries, – reduce liability insurance premiums for health care providers. One of MEDiC’s purposes is to provide the opportunity for solutions to be found outside the courtroom, and the authors quote the example of the University of Michigan Health System which launched a successful, three-component programme in 2002: – acknowledge cases in which a patient was hurt because of medical error and compensate these patients quickly and fairly, – aggressively defend cases that the hospital considers to be without merit, – study all adverse events to determine how procedures could be improved. Success factors of this scheme include more than halving of the number of suits filed; much more rapid resolution of claims; and a steep fall in litigation costs. The Senators also observe that ‘. . . the most important factor in people’s decisions to file lawsuits is not negligence, but ineffective communication between patients and providers.’ (There is evidence that some patients sue primarily and simply to find out what went wrong because their informal enquiries were frustrated [75].) The MEDiC Bill is an important contribution to practical reform in the US and to the debate about more general reform. It supports, among other things, the improvement of communication with patients about errors – but it is unlikely to remedy the much wider communications weaknesses in clinical practice which appear to cause patients so much dissatisfaction. Wu et al. [82] investigated self-reported errors by 114 internal medicine house officers: Mistakes included errors in diagnosis (33%), prescribing (29%), evaluation (21%), communications (5%), and procedural complications (11%). Patients had serious adverse outcomes in 90% of cases, including death in 31% of cases. Only 54% of house officers discussed the mistake with their attending physicians, and only 24% told the patients or families. House officers who accepted responsibility for the mistake and discussed it were more likely to report constructive changes in practice.
According to Rane, ‘A physician who has adverse claims experience is more likely to be sued again and is also less likely to change their practice’ [61]. Here we get a vivid glimpse of the intractability of some of the issues at the level of individual practice. 4. Culture and communication The barriers to much reform in the patient safety arena, not least to a change in the way doctors relate to their patients, are well characterised by Leape and Berwick [38]. The answers . . . are to be found in the culture of medicine, a culture that is deeply rooted, both by custom and by training, in high standards of autonomous individual performance and a commitment to progress through research . . . The combination of complexity, professional fragmentation, and a tradition of individualism, enhanced by a well-entrenched hierarchical authority structure and diffuse accountability, forms a daunting barrier to creating the habits and beliefs . . . that a safe culture requires.
The primary solution for this evidently avoidable negative aspect of patient experience is a revolution in the attitudes of those doctors who treat their patients with less than respect, openness and honesty, and an access of mature professional humility. There’s good evidence that patient outcomes are improved in clinical relationships that include trust, warmth, concern and honesty [9]; now we know that important
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aspects of a damaging crisis in healthcare in many countries could be ameliorated if more attention were given to what happen when doctors talk to patients. Expanding on the list reviewed by Rane, and drawing on Zurad [83] the following items occupy an important place on the agenda for education, training and reform for improving the professionalism of relationships with patients, per se, and, as a consequence, reducing the risk of being sued, whatever the facts of clinical competence or the presence or absence of mistakes: – Establish empathetic, respectful relationships with patients, – Explain delays and waiting times, – Demonstrate willingness to take patients’ views and feelings seriously (including listening and managing physician’s own and external interruptions), – Thorough discussion of diagnoses and treatment options, – Avoid over-promising or encouraging unrealistic expectations, – Ensure effective communication of risk and comparative risks of therapeutic options, – Give genuine attention to issues of informed consent and keeping a record of them, – Involve patients in decision-making and engage them in enhancing their safety and preventing error [72], – Avoid criticising the practice of the patients’ other physicians or carers, – Respond actively to and follow up angry or disappointed patients, – Actively seek patients’ views of service, – Disclose, explain and discuss errors with patients (and report to colleagues and institutions), – Express regret and concern following injury (this does not imply accepting liability), – When problems arise, provide evidence to patients that measures have been taken to prevent similar errors in the future, – Offer options for remedy if all else fails. There are also simple practical steps which can be taken to reduce risk further, and, in extremes, to demonstrate to a jury or adjudicator that malpractice cannot be evidenced from the records (based on Zurad): – Thorough, legible, self-explanatory documentation of medical and medication history, vital signs, diagnoses, prescriptions, tests and everything, – The avoidance of judgemental attitudes or language (written or face-to-face), – Get informed consent: ‘I [Zurad] include a statement in my note that the procedures, risks, potential consequences and complications, and alternatives have been explained to the patient, understood and accepted in detail (PRCCAEUA)’, – Document non-compliance, – Document insurance-denied treatment and assist patient to appeal, – Write or dictate notes in patient’s presence, – Document phone calls, – Ensure coherence and reliability of high standards throughout the team. Add to all this the balance of advice from Rice (see panel), and there is a pretty sound basis for excellence in all aspects of medical relationships and behaviour, beyond the core competencies of diagnosis and therapy, and an effective agenda for establishing patient trust, respect and support. Such changes will have little impact on patient safety and satisfaction if healthcare systems, priorities, communications and accountabilities are not changed; if the sources of medical error and malpractice
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are not tackled; if litigious solutions to complex medical questions are not reduced in dominance; if the priority of patient safety is not placed at the heart of medical culture, administration and practice. No amount of improvement in the quality of doctor–patient relationships (and in relationships between all healthcare personnel) can deliver a transformation in patient safety and professional morale if the systems improvements are not also pursued with radical energy and patient safety is not accepted as the primary driving force and motivator. This agenda is comprehensively and vividly set out in the 2001 IOM report, Crossing the Quality Chasm [42]. Longo et al. [40] conclude from their research that: The current state of hospital patient systems is not close to meeting IOM recommendations. Data are consistent with recent reports that patient safety system progress is a cause for great concern.
In their review of progress in the five years since To Err is Human, Leape and Berwick conclude that real change will come about only when the public and political pressures become much greater than they are today: If the experience of the past 5 years demonstrates anything, it is that neither strong evidence of on-going serious harm nor the activities, examples and progress of a courageous minority are sufficient to generate the national commitment needed to rapidly advance patient safety. Such a commitment is not likely to be forthcoming without more sustained and powerful pressure on hospital boards and leaders – pressure that must come from outside the health industry.
While this message is addressed to the US, there seems little doubt that it is pertinent to many other places, and that there is still a long way to go on this rough road of reducing error and injury, minimising risk, and realising the full benefits of the immense resources and skills available. Along that road, as communications improve, the number of hostile, litigious or disappointed patients will also be reduced. Appendix 1. Insupportable costs. The ‘litigation crisis’ The depth and intractability of the financial issues associated with medical litigation being faced in many countries are well illustrated by the crisis in which New South Wales found itself in the first years of this century [17]. During the time that the NSW Government was implementing reform in medical indemnity matters (2001–2003), a major medical reinsurance company went into liquidation; Australia’s largest medical indemnity award was handed down (initially, Au$14m, reduced on appeal to just under Au$11m); the government levy on doctors and insurance premiums were raised significantly; the major medical defence organisation went into liquidation (later released by the Supreme Court); numerous consultants and doctors resigned, many more threatened to do so or to retire early because of indemnity issues; the Campbelltown and Camden Hospitals scandals erupted [54,74]. In 2002 in the UK, clinical malpractice costs were GBP446m, 0.046% of GDP [70]; in the US, the figures are much higher, currently accounting for about 0.2% of GDP [47], by far the highest in world, though premiums have risen at only about half the rate of general medical service inflation in the last twenty years (52% as against 113%) [73] and increases in malpractice awards have more or less kept abreast or slightly ahead of the rate of general medical inflation [45]. To put the figures in a different perspective, medical malpractice payouts in 2001 were US$4.5 billion, less than 1% of total healthcare costs of US$1.4 trillion [46]. In the US, there have been many effects similar to those in NSW – collapse or withdrawal from the market of major insurers; refusals to indemnify high-risk specialisms; protests and resignations by doctors; strenuous and controversial efforts to understand the problems and legislate for reform [71]. (There are very large differentials in insurance premiums between high and low risk
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practice [37], and in different locations, with annual figures for some individuals around US$250,000 at the top end.) There are many divergent views on the causes of the premiums and litigation crisis [32,49,68]: some maintain that high premiums reflect increasing numbers of malpractice suits (many, allegedly, ‘frivolous’ – a view endorsed by the US President [77]) which evidence does not seem to support [44]; escalating jury awards and hence corporate losses; others see the causes in decreasing investment returns and/or poor financial management in the insurance industry [2,26] along with the plain fact and frequency of malpractice – the last item being seen by some as the absolute heart of all the problems [4]. Some see the remedy in legislative capping of awards, limiting contingency fees, prevention of double recoveries (measures adopted in California), and other back-end options [31]; others believe that such measures as reform of the insurance industry, alternative dispute resolution (binding arbitration, for example), selective no-fault compensation, entity liability, or the reduction of error and the increase of patient safety [76], or the introduction of statutory practice guidelines are the best basis for solutions in the future. (The UK NHS Litigation Authority [50], the National Institute for Clinical Excellence (NICE) [52], and NICE clinical guidelines [53] are recent examples of three important kinds of reform developments.) The civil judicial system is seem by many as offering an inappropriate and crude mechanism for dealing with medical torts, especially in the dominance of judges and juries without medical knowledge or experience. Reforms, such as the establishment of Health Courts [39] have been proposed as alternatives, along with the coaching of judges in medical wisdom [3]. There is no doubt that the fundamental mindsets of lawyers and medics are divergent, if not antagonistic, especially in a lawyer’s fixation on outcome rather than process, and in the pursuit of barely-negotiable certainties (‘on the balance of probabilities’ or ‘beyond reasonable doubt’). The contrasting issues raised by a damaging outcome following good practice, and injury caused by malpractice, highlight some of the problems. That there are often legitimate grounds in medicine and science for difference of opinion or interpretation – that no one expert, however well accredited, may have access to the sole ‘truth’ – further undermine the credibility of a system which demands a high degree of certainty in its determinations. In systems where ‘joint and several’ liability is attributed to an entire care team, the complexities and potential for injustice are considerable. New Zealand, Sweden, Finland, Denmark and some US States operate comprehensive or partial nofault compensation schemes, though plaintiffs may also take their cases to the civil courts (except in the US) [55]. These schemes do seem to provide faster results and less costly procedures (particularly avoiding the expense of the investigation of fault), but there are critics who believe, amongst other things, that they do not adequately compensate victims, and that the removal of strict liability lessens the degree of responsibility felt by practitioners for the safety of patients. Many of these issues have recently been comprehensively reviewed by Kessler et al. [33]. Appendix 2. Impact on practitioners: Defensive medicine Protests, strikes, resignations, transfers, and staffing shortfalls in high-risk specialisms tell a clear story of the direct effect of premium levels and hikes (whatever their causes) where individuals carry their own insurance, and even where there is some measure of institutional protection from liability. Some of these effects have, of course, an immediate impact on patients – reduction in access to some medical specialisms or services, or their availability, for example. What is less unambiguously clear is the impact of other variables on clinical practice and patient safety, when healthcare professionals and health institutions behave in ways designed to reduce the risk of being sued.
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The most controversial of these is the concept of defensive medicine. In their recent review of the medical liability systems in Australia, the UK and the USA, Kessler et al. [35] express concerns about such indirect effects, and suggest that they may be more significant than those that grab the headlines: Yet, the indirect results of the countries’ systems – their effects on cost and quality of medical care – might be far more important. In theory, the countries’ systems should lead doctors’ decisions about whether and how to practise medicine to indicate society’s overall interests, as doctors balance expectations about the social benefits of care, the costs or precaution, and the costs of negligence. In practice, however, the systems can lead doctors to take insufficient precautions against medical injuries, or might lead to defensive medicine – medical practice based on fear of legal liability rather than on patients’ best interests.
In common usage, defensive medicine (like defensive driving) might be taken to mean prudent, cautious, conscientious practice, without ill-considered risk-taking or blinkered decision-making: entirely desirable. Bergen [7] characterises it as: . . . the habit of exercising extra care and foresight to avoid medical hazards and to apply prompt remedial measures when they occur. It means being aware of the patient’s personality and needs. It means taking time to talk to the patient about proposed procedures and their risks.
Within this arena of debate, however, defensive medicine has a distinct meaning, clearly described in the US Congress Office of Technology definition [69]: Defensive medicine occurs when doctors order tests, procedures or visits, or avoid high-risk patients or procedures, primarily (but not necessarily solely) to reduce their exposure to malpractice liability.
Defensive medicine may also be divided into positive and negative, according to a Harvard Health Policy Review [24], quoting Grover [22]: Positive defensive medicine refers to a wide range of extra procedures a doctor might administer including, as N.K. Grover suggests, “more diagnostic tests. . .inviting other consultants, over-prescription of drugs, follow-up visits, prolonging stay, as well as excess record keeping leading to extra billing.” Negative defensive medicine, meanwhile, refers to physicians’ “restricting practice time, number of patients, practice to low risk group and avoiding emergency and serious cases, increased reference to hospitals, [and] refusing to perform high-risk procedures.”
So, here is the suggestion that, on the one hand, unnecessary and costly procedures may be adopted, and, on the other, that needy patients may, at best, be inconvenienced, at worst, be rejected and untreated. The issues are important for a number of reasons: scarce professional, financial and material resources may be wasted; patients may suffer unnecessarily (for example, from painful invasive tests, or from the additional risk of adverse reactions to tests); the potential for error may be multiplied as tests and procedures accumulate. President Bush is in no doubt about the scale of the problem [78]: America’s health care professionals should be focused on fighting illnesses, not on fighting lawsuits. . .Junk lawsuits change the way docs do their job. Instead of trying to heal the patients, doctors try not to get sued. . .If you’re worried about getting sued, you’re going to do everything you can to make sure you don’t get sued. That’s why doctors practice what’s called defensive medicine. That means they’re writing prescriptions or ordering tests that really aren’t necessary, just to reduce the potential of a future lawsuit. They have specialists who stop taking emergency room calls. Doctors turn away patients with complicated, life-threatening conditions because they carry the highest risk for a lawsuit. Defensive medicine drives a wedge between the doctors and the patients, and defensive medicine is incredibly costly for our society. Altogether, defensive medicine drains some $60 billion to $100 billion from the economy [on a total healthcare budget of
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over US$1.4 trillion – BH]. Defensive medicine raises medical bills for patients and increases insurance costs for employers and it takes money away that small businesses could use to invest and expand.
The Congressional Budget Office is much more tentative about the costs of defensive medicine, and sceptical about the more extravagant claims of damage to the healthcare system: ‘The evidence for indirect effects on efficiency – through changes in defensive medicine, the availability of medical care, or the extent of malpractice – is at best ambiguous. . .On the basis of existing studies and its own research, CBO believes that savings from reducing defensive medicine would be very small’ [14]. In their 1996 study, Kessler and McClellan [29] concluded that savings from a reduction in defensive medicine could lie between 5% and 9% of medical expenditure. Relatively little research has been conducted in the UK on the effects of potential litigation, but a recent study of UK hospitals [18] concludes very firmly that the practice of defensive medicine is a reality. The authors looked at the differential practice (particularly in relation to advanced diagnostic imaging) of hospitals facing different levels of litigation threat, and used emergency readmission rates to assess differential outcomes. Hospitals facing higher levels of litigation threat used a range of tests and procedures much more frequently than those facing lower levels, but outcomes differed little. The study concludes: . . .for the first time using UK data, this paper has shown rigorously that the threat of litigation has an impact on clinical discretion.
Practitioners themselves (especially in the US where the topic has been extensively researched), are in no doubt. A 2002 Harris® poll of 500 healthcare professionals produced the following results [23]: • Large numbers of physicians report that fear of malpractice liability causes them to provide unnecessary and inappropriate care include: ◦ ◦ ◦ ◦
79% who say they order unnecessary tests; 74% who say they make unnecessary referrals; 51% who say they suggest unnecessary biopsies; 41% who say they prescribe unnecessary antibiotics.
• Most physicians (56%) say they know other doctors who are reluctant to help an injured person off-duty because of fear of liability. And 33% know of a specific situation where a doctor did not volunteer to help. • Fully 76% of physicians report that their concerns about malpractice litigation have hurt their own ability to provide quality patient care. • Almost all physicians (94%), most nurses (66%) and hospital administrators (84%) believe that unnecessary or excessive care is sometimes (or more often) provided because of the fear of medical liability. And many physicians (38%), but fewer nurses (18%) and hospital administrators (20%) believe this happens “very often”. • Almost all physicians (94%), most nurses (79%) and hospital administrators (88%) believe that the extra tests, referrals and procedures resulting from the fear of liability contribute in a significant way to health care costs. In one of the most widely quoted studies, Studdert and colleagues [65] examined the practice of 824 physicians in Pennsylvania. Their findings provide overwhelming evidence for the distorting influence of the threat of litigation: Nearly all (93%) reported practicing defensive medicine. “Assurance behavior” such as ordering tests, performing diagnostic procedures, and referring patients for consultation, was very common (92%). Among practitioners
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of defensive medicine who detailed their most recent defensive act, 43% reported using imaging technology in clinically unnecessary circumstances. Avoidance of procedures and patients that were perceived to elevate the probability of litigation was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious. Defensive practice correlated strongly with respondents’ lack of confidence in their liability insurance and perceived burden of insurance premiums.
Their conclusions are stark: Defensive medicine is highly prevalent among physicians in Pennsylvania who pay the most for liability insurance, with potentially serious implications for cost, access, and both technical and interpersonal quality of care.
While there are some voices doubting the impact of litigation threat [5,64] there is an overwhelming body of evidence to suggest its pervasive presence, especially in high-risk specialisms [28], though the problems of collecting data about defensive medicine leave us with only a handful of studies [30] and very few reliable facts about actual costs or the precise impact on patient care, safety and welfare. Finally, we may assume that the threat of litigation, or the experience of actual lawsuits, will have a significant impact on the confidence, morale and professional pride of many practitioners. Fearful or dispirited healthcare personnel may struggle valiantly to give of their best, but anxious practice can almost certainly never be best practice [11,27]. Acknowledgments The author acknowledges with thanks the support of two friends in the preparation of this article: Dr. Marie Lindquist and Mr. William Frempong. References [1] N. Ambady, D. LaPlante, T. Nguyen, R. Rosenthal, N. Chaumeton and W. Levinson, Surgeons’ tone of voice: A clue to malpractice history, Surgery 132(1) (2002), 5–9. [2] American Medical Association Report 35 of the Board of Trustees (A-02), available at: http://www.ama-assn.org/ama1/ upload/mm/annual02/bot35a02.rtf. [3] ASTAR: for example, the national judges’ medical school run by ASTAR – the Advanced Science and Technology Adjudication Resource Centre Inc, at: http://einshac.org/. [4] T. Baker, The Medical Malpractice Myth, University of Chiacgo Press, 2005. [5] L.M. Baldwin, L.G. Hart, M. Lloyd, M. Fordyce and R.A. Rosenblatt, Defensive medicine and obstetrics, JAMA 274 (1995) 1606–1610. [6] C. Batchelor, D.J. Owens, M. Read and M. Bloor, Patient satisfaction studies: methodology, management and consumer evaluation, Int. Jnl. Healthcare Quality Assurance 7 (1994), 22–30. [7] R.P. Bergen, Protection against malpractice litigation, Arch. Otolaryngol. 101 (1975), 182–184. [8] M.M. Bismark, T.A. Brennan, R.J. Paterson, P.B. Davis and D.M. Studdert, Relationship between complaints and quality of care in New Zealand: a descriptive analysis of complainants and non-complainants following adverse events, Qual. Saf. Health Care 15 (2006), 22–31. [9] Z.D. Blasi, E. Harkness, A. Georgiou and J. Kleijnen, Influence of context effects on health outcomes: a systematic review, The Lancet 357 (2001), 757–762. [10] K. Bottles, blog at: http://www.soundpractice.net/article.cfm?id=222. [11] S.C. Charles, J.R.Wilbert and E.C. Kennedy, Physicians’ self-reports of reactions to malpractice litigation, Am. J. Psychiatry 141 (1984), 563–565. [12] H.R. Clinton and B. Obama, Making patient safety the centrepiece of medical liability reform, NEJM 354 (2005), 2205–2208. [13] CMIRPS: the Canadian Medication Incident Reporting and Prevention System. Health Canada. See: http://www.hcsc.gc.ca/dhp-mps/medeff/advers-react-neg/fs-if/cmirps- scdpim_e.html.
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[14] Congressional Budget Office, Limiting Tort Liability for Medical Malpractice, January 8, 2004. [15] A.F. Cook, H. Hoas, K. Guttmannova and J.C. Joyner, An error by any other name, Am. J. Nurs. 104 (2004), 32–43. [16] P.M. Danzon, Medical Malpractice: Theory, Evidence and Public Policy, Harvard University Press, Cambridge, Mass, 1985. [17] T. Drabsch, Medical negligence: An update. Government of NSW Briefing paper no. 2/2004. Available at: http://www. parliament.nsw.gov.au/prod/parlment/publications.nsf/0/6C1BDA58607A7808CA256ECF0007223D. [18] P. Fenn, A. Gray and N. Rickman, Enterprise liability, insurance and defensive medicine: UK evidence. http://www.bris.ac. uk/cmpo/events/seminarseries/fenn.pdf. [19] J. Fuquay J, Filed down: Since the tort systems’ overhaul in 2003, the number of malpractice suits has plummeted, StarTelegram, Mon Aug 21 2006. The reforms also raised the standard of proof required for malpractice cases, and this will have had some effect in filtering out more cases. [20] T.H. Gallagher, A.D. Waterman, J.M. Garbutt, J.M. Knapp, D.K. Chan, W.C. Dunagan, V.J. Fraser and W. Levinson, US and Canadian physicians’ attitudes and experiences regarding disclosing errors to patients, Arch. Intern. Med. 166 (2006), 1605–1611. [21] M. Gladwell, Blink: The Power of Thinking without Thinking, Little Brown & Co, 2005. Extract available on: http://www. memag.com/memag/article/articleDetail.jsp?id=365763. [22] N.K. Grover, Medical liability: litigations and defensive medicine, Journal of the Indian Medical Association, 92(6) 1994, 184. [23] Harris Poll®#22, 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 8 2002. http://www.harrisinteractive.com/harris_poll/index.asp?PID=300. [24] Harvard Health Policy Review, Spring 2003, Volume 4, Number 1, In Focus. [25] Harvard Medical Practice Study Group, Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York, 1990. [26] J.R. Hunter, Americans for Insurance Reform, Medical Malpractice Insurance: Stable Losses/Unstable Rates, October 10, 2002. See also: http://www.insurance-reform.org/StableLosses.pdf. [27] G. Iles, The Quiet Game, Signet Books, 2000, pp. 34–35. A fictitious, but vivid, insightful and moving account of the effect of a malpractice suit on a mature, popular, conscientious physician. [28] D.A. Katz, G.C. Williams, P.L. Brown, T.P. Aufderheide, M. Bogner, P.S. Rahko and H.P. Selker, Emergency physicians’ fear of malpractice in evaluating patients with possible acute cardiac ischemia, Annals of Emergency Medicine 46 (2005), 525–533. [29] D.P. Kessler and M. McClellan, Do doctors practice defensive medicine? Quarterly Journal of Economics VIII (1996), 353–390. [30] D.P. Kessler and M. McClellan, 1996, op cit. [31] D.P. Kessler and M. McClellan, Malpractice law and health care reform: optimal liability policy in an era of managed care, Journal of Public Economics 84 (2002), 75–197. [32] D.P. Kessler, N. Summerton and J.R. Graham, Effects of the Medical liability system in Australia, the UK, and the USA, The Lancet 368 (2006), 240–246. [33] D.P. Kessler, N. Summerton and J.R. Graham, 2006, op cit. [34] D.P. Kessler, N. Summerton and J.R. Graham, 2006, op cit. [35] D.P. Kessler, N. Summerton and J.R. Graham, 2006, op cit. The reference list to this article provides extensive further reading on this topic. [36] K.T. Kohn, J.M. Corrigan and M.S. Donalson, National Academy of Sciences, 1999, op cit. [37] L. Kowalcyzk, Premiums to Rise 20% for Mass. Doctors, The Boston Globe, April 17, 2003, A1, A27 [38] L.L. Leape and D.M. Berwick, Five years after To Err Is Human: What have we learned? JAMA 293 (2005), 2384–2390. [39] Legalaffairs.org: the debate is entertainingly characterised by two campaigning individuals at: http://www.legalaffairs. org/webexclusive/debateclub_medmal0305.msp. [40] D.R. Longo, J.E. Hewitt, B. Ge and S. Schubert, The long road to patient safety, JAMA 294 (2005), 2858–2865. [41] K.M. Mazor, G.W. Reed, R.A. Yood, M.A. Fischer, J. Baril and J.H. Gurwitz, Disclosure of medical errors: what factors influence how patients respond?, J. Gen. Intern. Med. 21 (2006), 704–710. [42] National Academy of Sciences, IOM, Crossing the Quality Chasm, National Academy Press, 2001. [43] National Academy of Sciences, IOM; K.T. Kohn, J.M. Corrigan and M.S. Donalson, To Err Is Human: Building a Safer Health System, National Academy Press, Washington, DC, 1999. [44] National Insurance Commissioners (US). http://www.naic.org/. [45] National Practitioner Data Bank and the Journal of Health Affairs, as quoted by Lorraine Woellert, Commentary: A Second Opinion on the Malpractice Plague, Business Week, March 3, 2003. [46] National Practitioner Data Bank, March 3 2003, op cit. [47] National Practitioner Data Bank, March 3 2003, op cit.
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[48] NCC MERP: National Coordinating Council for Medication Error Reporting and Prevention. http://www.nccmerp.org. [49] Newrules.org: there is a good presentation of contrasting views at: http://www.newrules.org/voice2004/health /malpractice.html. [50] NHLSA: http://www.nhsla.com. [51] NHS; http://www.npsa.nhs.uk/. [52] NICE: http://www.nice.org.uk. [53] NICE: http://www.nice.org.uk/page.aspx?o=guidelines.completed. [54] NSW: Government of NSW, Special Commission of inquiry into Campbelltown and Camden hospitals. Available at: www.lawlink.nsw.gov.au/.../vwFiles/Interim_Report_31March2004.pdf/$file/Interim_ Report_31March2004.pdf. [55] NSW: Government of NSW, Special Commission of inquiry into Campbelltown and Camden hospitals, op cit. [56] R.L. Phillips, L.A. Bartholomew, S.M. Dovey, G.E. Fryer, T.J. Myoshi and L.A. Green, Learning from malpractice claims about negligent, adverse events in primary health care in the United States, Qual. Saf. Health Care 13 (2004), 121–126. [57] Pointoflaw.com: an astonishing range of comment and resources on medical malpractice at: http://www.pointoflaw. com/medicinelaw/category_archive.php. [58] V.S. Rane, Doctors, patients and lawyers: are we all speaking the same language? 10th Greek Australian Legal and Medical Conference, Mykonos, Greece, 2005. http://www.lmconference.com.au/papers/2005/rane.html. [59] B. Rice, 10 Ways to guarantee a lawsuit, Medical Economics, July 8 2005. Available on www.memag.com. [60] S.O. Rogers Jr, A.A. Gawande, M. Kwaan, A.L. Puopolo, C. Yoon, T.A. Brennan and D.M. Studdert, Analysis of surgical errors in closed malpractice claims at 4 liability insurers, Surgery 140 (2006), 25–33. [61] F.A. Sloan, P.M. Mergenhagen, W.B. Burfield, V.V. Bovbjerg and M. Hassan, Medical malpractice of physicians: predictable or haphazard?, JAMA 262 (1989), 3291–3297. [62] F.A. Sloan et al., 1989, op cit. [63] F. Soleimani, Learning from mistakes in New Zealand hospitals: what else do we need besides ‘no-fault’?, N. Z. Med. J. 119 (2006), U2099. [64] K. Steadman, Health Policy blog. http://healthypolicy.typepad.com/blog/medical_malpractice_myth/index.html. [65] D.M. Studdert, M.M. Mello, W.M. Sage, C.M. DesRoches, J. Peugh, K. Zapert and T.A. Brennan, Defensive medicine among high-risk specialist physicians in a volatile malpractice environment, JAMA 293 (2005), 2609–2617. [66] M.I. Taragin, A.P. Wilczek, M.E. Karns, R. Trout and J.L.Carson, Physician demographics and the risk of medical malpractice, Am. J. Med. 93 (1992), 537–542. [67] M.I. Taragin, L.R. Willett, A.P. Wilczek, R. Trout and J.L. Carson , The influence of standard of care and severity of injury on the resolution of malpractice claims, Annals of Internal medicine 117 (1992), 780–784. [68] TATR: for example, The American Tort Reform Association; www.atra.org. [69] U.S. Congress, Office of Technology Assessment, Defensive Medicine and Medical Malpractice, Washington DC, U.S. Government Printing Office, 1994, 13. [70] United Kingdom, Department of Health, Making Amends: A consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS, A report by the Chief Medical Officer, June 2003, p. 9. Available at: www.doh.gov.uk/makingamends/pdf/cmomakingamends.pdf. [71] United States General Accounting Office, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates, GAO-03-702, June 2003. [72] K.T. Unruh and W. Pratt, Patients as actors: The Patient’s role in detecting, preventing and recovering from medical error, Int. J. Med. Inform. (2006). [73] US Bureau of Labor Statistics – Medical Services CPI; Best’s Aggregates and Averages. [74] M.B. Van de Weyden, The ‘Cam affair’: an isolated incident or destined to be repeated?, MJA 180 (2004), 100–101. [75] C. Vincent, M. Young, A. Phillips, Why do people sue doctors? A study of patients and relatives taking legal action, Lancet 25 (1994), 1609–1613. [76] L. Weinstein L, A multifaceted approach to improve patient safety, prevent medical error and resolve the professional liability crisis, Am. J. Obstet. Gynecol. 194 (2006), 1160–1166. [77] White House Press Office, President Discusses Medical Liability Reform, Gateway Center, Collinsville, Illinois, January 5 2005. [78] White House Press Office, President Discusses Medical Liability Reform, Gateway Center, Collinsville, Illinois, January 5 2005. [79] WHO: http://www.who.int/patientsafety/en/. [80] Wrong diagnosis.com: http://www.wrongdiagnosis.com/malpractice/overview.htm. [81] A.W. Wu, S. Folkman, S.J. McPhee and B. Lo, Do house officers learn from their mistakes?, JAMA 265 (1991), 2089– 2094. [82] A.W. Wu et al., 1991, op cit. [83] E.G. Zurad, Don’t be a target for a malpractice suit, Family Practice Management 13 (2006), 57–64.
