Impatient | Helping make the health care system work for you

Does defensive medicine mean fewer malpractice suits?

Some doctors argue that a more effective strategy to prevent malpractice lawsuits is to involve patients in their health care decisions.
Some doctors argue that a more effective strategy to prevent malpractice lawsuits is to involve patients in their health care decisions.
Alex Proimos via Flickr Creative Commons

Most of us are familiar with the concept of defensive driving: We're taught to lower our risk of car accidents by anticipating dangerous situations that could be caused by poor road conditions or other people's mistakes.

But are you familiar with defensive medicine?

Defensive medicine is when doctors attempt to lower their chances of being sued for malpractice by ordering extra tests, imaging and procedures, even if they're not clinically justified.

This practice appears to be widespread: A survey of 824 Pennsylvania physicians in six specialties found that 93 percent reported practicing defensive medicine, according to a 2005 study published in the Journal of the American Medical Association. It found that over-ordering of diagnostic tests, unnecessary referrals, and avoidance of high-risk patients were the most common forms of defensive medicine. 

More recently, a survey conducted in 2013 and 2014 of 435 emergency physicians found 97 percent acknowledged personally ordering some CT or MRI tests that they perceived to be medically unnecessary, according to a recent article in the journal Academic Emergency Medicine. 

The doctors in this survey cited two main reasons for over-ordering: A fear of missing a low-probability diagnosis and a fear of being sued.

Study: Higher spending, lower malpractice risk

Now, a study published in the BMJ has found that this approach is associated with fewer malpractice claims.

Researchers looked at data on more than 24,00 physicians and more than 18 million hospital admissions in Florida between 2000 and 2009, and found that significantly higher spending was associated with a lower chance of being sued in the future.

There are limitations to the study. While the researchers found higher spending to be associated with lower malpractice claims, they did not try to determine whether the higher spending was the result of defensive medicine.

Still, their findings could pose a challenge for federal efforts to rein in health costs. A major goal of the Affordable Care Act is to shift how doctors are reimbursed: The law now rewards doctors for practicing high-value care, instead of incentivizing them to perform lots of tests and procedures.

The study wasn't intended to undermine those efforts, says co-author Seth Seabury, an associate professor at USC's Leonard D. Schaeffer Center for Health Policy and Economics. Rather, he says, the report highlights the challenges that policymakers could face in getting physicians to adopt this new approach to health care.

"Part of our point is that, if this relationship is true… that simply spending more, irrespective of patient health or clinical needs, leads to fewer lawsuits, as physicians tend to think that it does, and if physicians believe that by embracing some of these efforts to be more efficient and increase value they're going to subject themselves to higher liability risk, we think that they'll be potentially very reluctant to buy into those [efforts]," Seabury says.

'Misunderstandings and poor communication'

The BMJ study's co-authors highlighted obstetricians and their rate of cesarean deliveries because, they write, the decision to perform a C-section is "sometimes considered to be defensively motivated."

What they found was consistent with their overall findings: Obstetricians with higher C-section rates also had lower subsequent rates of malpractice suits.

But Dr. Lauren Demosthenes, an assistant professor of OB-GYN at the University of South Carolina's School of Medicine Greenville, has another strategy to reduce malpractice risk.

"We all know that a lot of malpractice comes out of misunderstandings and poor communication," Demosthenes says. In response, her strategy is to improve communication - about clinical guidelines and different treatment options - between doctors, nurses and patients.

"I think we're really focused on talking with the nurses, and the patient, and the team, and keeping everyone informed, following the guidelines, being patient, and not letting that fear of malpractice creep into it anymore," says Demosthenes.

This plays out in different ways: When doctors are concerned, she recommends they get a second opinion from another doctor, so they don't feel as if they're making decisions in a vacuum.

When a doctor thinks the patient might need a C-section, but the patient wants to have a vaginal birth, Demosthenes recommends that doctors discuss the decision with the patient and nurses, and then negotiate a plan.

If the patient ends up needing a C-section, "it's not that the patient failed, it's that she feels very secure that she was able to be a part in the decision," Demosthenes says. "I think it makes her feel good, the physician knows alternatives have been discussed, and they feel good that it was a joint decision."

'There's 'a lot of grey'

Dr. Hemal Kanzaria, an assistant professor of emergency medicine at UC San Francisco, has studied over-testing in emergency departments. He agrees with Demosthenes that rather than practicing defensive medicine, a more effective strategy to prevent malpractice - and improve patient care - is to involve patients in decisions about their health.

This is especially important when there's a lack of clinical evidence supporting one treatment plan over another, he says, adding, "in a lot of what we do, there's a lot of grey, there's not one right answer."

Imagine, he says, that a patient comes to the emergency department with chest pain, but initial tests indicate there's only a small chance the pain is associated with a heart attack. The doctor now has a choice, Kanzaria says: Admit the patient into the hospital and perform a stress test, or send the patient home and instruct him to follow-up with his doctor within 72 hours. 

In this scenario, when the risk of a heart attack is very low but still exists, Kanzaria says it's important to work with the patient to understand his preferences and values, and then determine the best approach to treatment.

In such murky situations, "involving patients has been shown to increase patient satisfaction and patient knowledge," he says. Some studies have also found that patient involvement can lead to to fewer tests and procedures, without sacrificing quality of care, he adds.

When there is not a single best option to pursue, Kanzaria acknowledges his uncertainty with the patient. Sometimes, he'll recommend a wait-and-see approach.

Then, "I will call them the next day, or in two days, or in a week, and see how they're doing," he says. "And in my personal experience, something like 99 percent of the patients I've called are feeling better and are really appreciative of the call."