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Rules of medical liability often derived from interpretations of standards of care
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Defensive medicine is a subject of intense debate among legal and medical scholars. Some physicians have argued the ordering of otherwise unnecessary diagnostic tests as a defensive shield against a medical negligence claim is a reality of medical practice in the United States. Defensive medicine, in turn, leads to increased health care expenditures. These physicians also maintain that medical liability reform designed to limit or control medical negligence claims can decrease health care expenditures by eliminating or reducing diagnostic tests or procedures done with the sole purpose of reducing liability exposure.
The opposing view is defensive medicine is a deviation from sound medical principles, driven primarily by a threat of liability and as such, it provides no benefit for the physician while risking overtreatment of the patient.
This Orthopedic Medical Legal Advisor column examines the various viewpoints attendant to this complex intersection of law and medicine.
Costs of defensive medicine
Lawrence H. Brenner
Medical malpractice litigation in the United States is expensive. Studdert and colleagues investigated data from several insurance companies across the country and reported their findings in a 2006 article published in The New England Journal of Medicine. In a random sample of 1,452 closed malpractice claims, the authors found the average time between the occurrence of injury and resolution was 5 years. Indemnity costs were $376 million and defense administration cost $73 million, resulting in total costs of $449 million. About 35% of the indemnity payments went toward plaintiff lawyer fees. When combined with defense costs, litigation costs left only 54% of the compensation paid to plaintiffs.
In a Wall Street Journal article published in 2013, authors Chandra and colleagues claimed several economic studies, including their own, have shown in states that have enacted medical malpractice reforms, a 2% to 5% reduction in health care spending occurred compared to states with no such reforms. A 2006 study by Price Waterhouse Coopers estimated costs associated with medical liability accounted for 7% to 11% of health insurance premiums.
The general view among economists and legislators is while defensive medicine may be real, its contribution to increasing health care expenditures is modest. Accordingly, while medical malpractice reform may be desirable, such efforts are unlikely to contribute to any meaningful reduction in health care costs.
Intuitively, there should be a relationship between physician perception of the risk of medical malpractice and increased health care costs. In reality, that is not the case. Information from a 2008 Health Tracking Physician Survey that asked physicians about their perspectives on malpractice risk found 68% of physicians practicing in five states with the highest malpractice lawsuit risk admitted to getting some tests and consults as a protective measure to avoid the appearance of substandard conduct.
This figure was nearly the same in states with the lowest malpractice risk, as 64% of the surveyed physicians in the low-risk states reported engaging in similar defensive behavior. These data suggest instituting medical malpractice reforms may have little impact on physician attitudes and actions in medical practice.
Author Brian Hurwitz cited the case of Daniel Merenstein, MD, in his 2004 article in the British Medical Journal. Merenstein performed a routine medical check on a 53-year-old man and, using an evidence-based approach recommended by the American Academy of Family Physicians for screening men older than 50 years, the patient and physician reached a shared consensus that a prostate-specific antigen (PSA) screening was probably unnecessary and thus was not performed. The patient later saw a new physician who ordered PSA testing without further discussion about the subject. The result was advanced prostate cancer. The patient brought legal action against Merenstein, and the patient’s lawyers successfully argued the standard of care required a PSA test rather than a shared decision-making model in which the patient made an informed decision not to have the test. While Merenstein was exonerated, the clinic was found liable for medical negligence and paid approximately $1 million in damages.
An earlier legal ruling is also relevant to understand defensive medicine. In Helling v. Carey, two ophthalmologists treated a woman for several years before she developed loss of vision at 32 years old related to glaucoma. The prevailing standard of care did not require a pressure test for glaucoma on patients younger than 40 years. Accordingly, the trial court ruled in favor of the defendant physicians. However, the appeals court reversed the ruling, stating irrespective of the standards of the ophthalmology profession, as a matter of law, the standard of care that should have been followed was the timely administration of a simple, noninvasive test to detect glaucoma, even if the patient was younger 40 years. Critics argued this ruling contributed to an increase in costs because approximately 25,000 patients would have to be screened in the younger age group to pick up a single case of glaucoma. Substituting judicial for medical reasoning, as this case did, led to defensive medical practices and increased costs. In reality, the Helling ruling has had little precedent in subsequent legal decisions.
B. Sonny Bal
Do no harm
A concern about defensive medicine is it may not only be futile, but harmful as well. For example, a large body of medical malpractice claims relates to fetal injury leading to cerebral palsy. Plaintiffs’ lawyers have argued increased fetal heart monitoring is required to avoid cerebral palsy. Yet, the evidence shows no change in the rate of cerebral palsy in developed countries during the past several decades when electronic fetal heart rate monitoring was adopted widely as a standard in response to lawsuits. The incidence of C-section delivery also increased, driven by the threat of litigation, with no attendant decline in the rates of cerebral palsy during the same span.
The risk, as illustrated by the above example, is the more frequently physicians order tests or perform diagnostic procedures with little evidence to support clinical efficacy, the more likely it is the unnecessary measures will morph into a faulty standard of care that delivers no benefit. In some instances, unnecessary procedures, such as cardiac catheterizations and exploratory laparotomy, create unnecessary risk, violate reasonable medical standards and may themselves be the basis for negligence lawsuits. A complication arising from a medically unnecessary operation is harder to explain to a jury when a physician is queried about why the operation was performed.
Risk avoidance
The utilitarian model of reasoning holds the morally correct course of action in a given scenario is one that generates the best balance of benefits over harms for all parties involved in a transaction. The model further holds an action should always strive to maximize benefits for everyone, independent of whether the benefits are generated by deceit, falsehood, coercion or manipulation. Utilitarian scholars have argued that on balance, defensive medicine is harmful to the patient, ie, while the physician practicing defensive medicine may be maximizing benefit by avoiding litigation, the harm produced to the patient from unnecessary medical intervention outweighs the benefits to the physician.
In his book Risk Savvy, author Gerd Gigerenzer addressed how in a complex, technology-driven world, comprehending risk goes beyond the rudiments of probability theory and human psychology. Humans make rational, intuitive judgments when sufficient data are not available, when the situation is too complicated or when a person cannot calculate the risks attendant to a situation. Defensive decision-making is not limited to medical practice, as the fear of litigation and self-defensive thinking also influences decisions in politics and the corporate world. Managers of large international companies have been reported to make defensive decisions in one-third to half of all cases. Because of perceived risk associated with the best choice, managers act rationally to minimize risk. In doing so, while they may end up with a suboptimal business choice for the company, they protect themselves in the event the decision is wrong.
Reforms, lawsuits
In a 2010 Health Affairs study by Carrier and colleagues, limits on noneconomic damages and other legislative reforms were unsuccessful in addressing physician self-reported defensive medicine practices. The reasons relate to the complex nature of litigation and its collateral effects on the parties involved. Reforms targeted at reducing the size of damage awards do not address the frequency of malpractice claims, even though the incidence of some medical malpractice claims may decrease if the lawsuit is not economically feasible for the plaintiff.
Beyond the insurable financial risk are the non-measurable collateral effects of lawsuits: emotional costs, family costs, reputational costs and time-related costs that unnecessarily burden the physician defendant. Some scholars have advocated national standards of medical care to avoid variations in tests and procedures that may be driven by local standards. Others have suggested physician associations promote disclosure and restitution programs, in which obvious medical errors are handled by full disclosure to the injured party and an offer of restitution rather than awaiting the filing of a lawsuit. Such safe harbors, funded by no-fault compensation funds, may avoid costly and uncertain litigation and, more importantly, exempt physicians from liability claims if they could show adherence to prior to evidence-based care or generally accepted clinical guidelines.
Clinical guidelines
At the present time, practice guidelines are used by courts as hearsay evidence offered by expert witnesses on either side of the dispute. That a clinical guideline exists is not dispositive in litigation; experts can argue the guideline is not authoritative, such that compliance with the guideline is reasonable while non-compliance is negligent. Clinical guidelines may evolve and thus not reflect the best current practices of medical care, meaning it may not always be practical to use clinical guidelines issued by medical associations as legal standards.
Physician discretion is an integral component of clinical judgment, which reflects a nuanced decision-making process that takes into account patient welfare, available technology, physician knowledge and skill, efficacy of treatment choices, costs and patient preferences. Physician judgment is still bound by professional norms, expressed standards of care and the best interests of the patient. Static clinical guidelines issued by an authoritative body, whether medical or legal, do not always fit neatly into the exercise of physician judgment that drives clinical decision-making.
In theory, medical malpractice lawsuits should be a mechanism to improve the quality of care by discouraging substandard conduct. In reality, the rules of medical liability are often derived from competing versions and interpretations of the standards of care. The risk is medical malpractice litigation, at least as practiced in the United States, can lead to an entrenchment of legal reasoning and interpretation that drive suboptimal standards of care and discourage the translation of scientific evidence into clinical practice, thereby harming patients and decreasing the quality of care.
Tort law, however well-intentioned, may thus have the perverse effect of discouraging and penalizing physicians who adhere to solid medical evidence and practice guidelines derived from such while rewarding those who modulate their practice to shield off liability risk. Defensive medicine may reflect this complex interplay of competing forces that shape clinical medicine in the United States today.
- References:
- Carrier ER, et al. Health Aff. 2010;doi:10.1377/hlthaff.2010.0135.
- Chandra A, et al. Wall Street Journal. 2006;www.wsj.com/articles/SB10001424127887323701904578280112638373302
- Hurwitz B. BMJ. 2004;doi:10.1136/bmj.329.7473.1024.
- Studdert DM, et al. N Engl J Med. 2006;354;2024-2033.
- For more information:
- B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner report no relevant financial disclosures.