DEFENSIVE MEDICINE Dimitra Dubrow Principal

June 2015

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DEFENSIVE MEDICINE •  It exists!

•  medico-legal concerns influence the way doctors practice medicine

•  beneficial and detrimental changes to patient care as a result of litigation concerns

•  Fear of litigation paralysing doctor’s decision making abilities

•  Defensive medicine is the departure from normal medical practice for the purpose of avoiding litigation or to provide a defence to any litigation

•  Fear of litigation leading to:

•  excessive referrals;

•  unnecessary ordering of tests and use of imaging technology;

•  excessive prescribing of medication; and

•  avoidance of certain patients or procedures

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DEFENSIVE MEDICINE

•  Clash between the legal and medical systems said to foster a defensive approach which encourages concealment of error and the attribution of blame

Annette Katelaris, ‘Reasonable practice is not defensive practice’, Medical Journal of Australia, 2011, Vol. 194, No. 5, 219)

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DEFENSIVE MEDICINE •  Points to a gap in knowledge of what is actually needed to succeed with

a claim

•  Concept of negligence underpinned by the test of reasonableness

•  Must establish that treatment and advice fell below reasonable standard of care and skill; and

•  Withstand defence that the treatment of the health professional accorded with peer professional opinion in Australia at the time.

•  Injury caused, on the balance of probabilities, by the negligence, not the natural course of the disease or condition or as a result of a risk or complication of the treatment.

•  Statutory thresholds and caps, introduced as part of the tort reform of the early 2000s

•  Tort reform appears to have done little to allay health professional’s fear of litigation

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DEFENSIVE MEDICINE

Need for:

•  a focus on risk management –practice and procedures directed at identification, management and reduction of clinical risk

•  better education about the standard of care required in clinical situations that most commonly provoke practice of defensive medicine

•  development and implementation of clinical guidelines that target common defensive practices

•  better knowledge of the medico-legal environment so doctors are more aware of their actual risk of litigation

•  understanding that defensive practices damage decision-making ability and weaken clinical judgment

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DEFENSIVE MEDICINE

•  Focus should be on:

•  best interests and safety of patient;

•  what reasonable practice requires in light of history and clinical presentation; and

•  guarding against forseeable harm

•  If this is done, the rest should take care of itself.

•  Patient will receive good medical care and will provide the best defence to any medico legal event.

•  means practitioners have a heavy responsibility to keep abreast of developments, advances and latest learnings, but would we have it any other way?

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DEFINING DEFENSIVE MEDICINE

United States Congress, Office of Technology Assessment Defensive Medicine and Medical Practice, 1994

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•  departure from normal medical practice to avoid litigation or provide a defence to litigation.

•  definition, prevalence, costs and effects, and how defensive medicine can be avoided, remains contentious

‘Defensive medicine occurs when doctors order tests, procedures, or visits, or avoid high-risk patients or procedures, primarily (but not necessarily or solely) to reduce their exposure to malpractice liability. When physicians do extra tests or procedures primarily to reduce malpractice liability, they are practicing positive defensive medicine. When they avoid certain patients or procedures, they are practicing negative defensive medicine.’

POSITIVE DEFENSIVE MEDICINE

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Positive defensive medicine – sometimes called “assurance behaviour” – involves supply of additional care to a patient which is unproductive ie of little or no medical value.

The purpose of the additional care is to:

•  prevent adverse outcomes;

•  deter a patient from bringing a medical negligence claim; or

•  to prove that a reasonable standard of care was provided.

Suggested that as the costs of healthcare borne mainly by government and health funds, doctors prepared to provide excessive care to reduce exposure to litigation.

Studdert, D, ‘Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment’, JAMA, 2005, Vol 293, No. 21, p. 2609

NEGATIVE DEFENSIVE MEDICINE

Omar Salem and Christine Forster, ‘Defensive medicine in general practice: Recent trends and the impact of the Civil Liability Act 2002 (NSW)’, 2009, 17 JLM 235. 11

Negative defensive medicine, also known as “avoidance behaviour”, occurs when doctors avoid the treatment of high-risk patients because of the increased threat of litigation.

HOW PREVALENT IS DEFENSIVE MEDICINE?

David Studdert, ‘Defensive Medicine and Tort Reform: A Wide View’, Journal of General Internal Medicine, 2010, Vol. 25, No. 5, 380. 12

Despite a number of studies into the practice of defensive medicine, measuring its occurrence remains a very difficult thing to do:

“Consider the computed tomography scan done in an emergency department. Is the doctor who orders it motivated by a desire to avoid litigation, by cautiousness unrelated to medico-legal fears, or by the culture of the clinical environment in which she works (which itself, may be shaped to varying degrees by legal risk management concerns)? Or perhaps the motivation is financial: has the hospital spotted a revenue stream from giving patients easy access to its new high-speed scanner? Even when the treatment decision can be pinned to the spectre of litigation, in whole or part, what if the scan’s appropriateness in the clinical circumstances at hand sits in a grey area, neither clearly needed nor contraindicated? What if it was ordered for all the wrong reasons, yet turns out to reveal something clinically significant, benefiting the patient?”

HOW PREVALENT IS DEFENSIVE MEDICINE?

•  All studies have shortcomings:

•  Studies of clinical behaviour can’t identify motivation.

•  Survey studies based on self-report data prone to “socially-desirable response bias” because doctors themselves view defensive medicine as a problem and insurers campaign against it.

•  Query whether doctors might overstate defensive medicine that is wasteful but harmless but underestimate the frequency of dangerous defensive medicine practices.

Studdert et al ‘Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment’, JAMA, 2005, Vol 293, No. 21, p.

2609.

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Largest Australian study, one of the largest international studies.

Explored impact of medico-legal concerns on medical practice

Compared figures between those who had and those who had not experienced a medico-legal matter.

2999 respondents from all major specialty groups, trainees and a sample of general practitioners.

Reported a number changes in practice behaviour which would be considered defensive medicine.

Nash et al, ‘Perceived practice change in Australian doctors as a result of medicolegal concerns’, Medical Journal of Australia, 2010, Vol. 193, No. 10, 579.

NASH ET AL. 2007 STUDY

NASH ET AL. 2007 STUDY

Due to concerns about medico-legal issues:

Ø  43% of doctors said that they referred patients more than usual;

Ø  55% ordered tests more than usual;

Ø  11% prescribed medications more than usual;

Ø  33% had considered or were considering giving up medicine;

Ø  32% had considered or were considering reducing their working hours; and

Ø  40% had considered or were considering retiring early.

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Nash et al, ‘Perceived practice change in Australian doctors as a result of medicolegal concerns’, Medical Journal of Australia, 2010, Vol. 193, No. 10, 580. 16

NASH ET AL. 2007 STUDY

NASH ET AL. 2007 STUDY

Nash et al, ‘Perceived practice change in Australian doctors as a result of medicolegal concerns’, Medical Journal of Australia, 2010, Vol. 193, No. 10, 579. 17

Positive behaviour changes as a result of medicolegal concerns.

The study found:

Ø  66% said medico-legal concerns had led to an improved communication of risk;

Ø  44% reported increased disclosure of uncertainty;

Ø  48% reported development of better systems for tracking results;

Ø  39% reported better methods developed for identifying non-attenders; and

Ø  35% reported better auditing of clinical practice.

STUDDERT ET AL. 2003 STUDY

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•  2003 study measuring the prevalence and characteristics of defensive medicine among physicians practicing in six high risk specialities in Pennsylvania.

•  Specialties included emergency medicine, general surgery, orthopaedic surgery, neurosurgery, radiology and obstetrics/gynaecology.

•  Study followed period of substantial instability in the malpractice environment in Pennsylvania with insurers leaving and others raising premiums considerably.

Studdert, D, ‘Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment’, JAMA, 2005, Vol 293, No. 21, p. 2609

STUDDERT ET AL. 2003 STUDY

Ø  93 % of physicians reported practicing defensive medicine;

Ø  92 % reported “assurance behaviour”, such as ordering tests, performing diagnostic procedures, and referring patients for consultation;

Ø  43 % reported using imaging technology in clinically unnecessary circumstances; and

Ø  42 % reported that they had taken steps to restrict their practice in the previous three years.

Ø  Strong correlation between physician’s lack of confidence in indemnity insurance and burden of premiums and defensive medicine

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Omar Salem and Christine Forster, ‘Defensive medicine in general practice: Recent trends and the impact of the Civil Liability Act 2002 (NSW), 2009 17 JLM 235 20

SALEM & FORSTER 2008 STUDY 2008 survey of GPs in Sydney aimed at estimating the extent of defensive medicine practices and explore the impact of tort reform on the practice of defensive medicine. In response to a potential threat of litigation:

Ø  83% sometimes or often refer patients to specialists unnecessarily;

Ø  70% sometimes or often prescribe excessive medications;

Ø  83% sometimes or often order more tests than medically indicated;

Ø  49% sometimes or often suggest procedures unnecessarily;

Ø  66% often sought the advice of another physician;

Ø  52% had avoided certain procedures; and

Ø  29% had avoided caring for high-risk patients.

DEFENSIVE MEDICINE IN OBSTETRIC PRACTICE

Around the time of the tort reforms, it was said that fear of litigation and working in a ‘climate of fear’ had purportedly led to large numbers of obstetricians and gynaecologist specialists practicing defensive medicine or ceasing obstetric practice.

Kerren Clark, ‘Litigation: A Threat to Obstetric Practice’, Journal of Law and Medicine, 2002, Vol 9, 303

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DEFENSIVE MEDICINE IN OBSTETRIC PRACTICE

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Studies suggest that obstetrics at high risk of litigation.

However:

AIHW, ‘Australia's medical indemnity claims 2012-13: Safety and quality of health care’, Canberra, 2014, Vol. 15, 149.

Ø  According to Australian Institute of Health and Welfare obstetrics and gynaecology – areas frequently fused together in studies – represent 7.6% of all new medical claims brought in Australia between 2012 and 2013.

Ø  Significant drop in the proportion of new claims against obstetricians and gynaecologists from 12.1% in 2008-09 to 7.6% in 2012-13.

NEW MEDICAL INDEMNITY CLAIMS 2012-13

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DEFENSIVE MEDICINE IN OBSTETRIC PRACTICE

•  The practice of assurance behaviour –performance of episiotomies and caesarean sections, unnecessary referrals and unnecessary medicines – is reported as high in obstetric practice.

•  However, one US study found that while positive defensive behaviour resulted in more episiotomies and longer hospital stays, surprisingly and contrary to mainstream wisdom, it did not result in more caesarean sections being performed.

•  Study looked at 20 US states with caps on non-economic loss damages and used data from Hospital discharge summaries from 1979 to 2005.

•  The thinking behind the finding in relation to caesarean sections rates is that this procedure itself has risks which will be weighed up and may be high enough for vaginal delivery to be chosen.

Michael Frakes, Defensive Medicine and Obstetric Practices’, Journal of Empirical Legal Studies, 2012, Vol.9(3), pp.457-481

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DEFENSIVE MEDICINE IN OBSTETRIC PRACTICE

•  Increase in caesarean deliveries is frequently discussed.

•  In Australia, caesarean deliveries increased from 5% to 34% over the last 50 years.

•  Increase suggested to be due to defensive obstetrics and fear of litigation but with no drop cerebral palsy rates.

•  But do figures about the rate of cerebral palsy also take into account the rise in survival rates of premature and low weight babies which represent a proportion of children with cerebral palsy?

Platt, M et al “Trends in cerebral palsy among infants of very low birthweight (> 1500g) or born prematurely (< 32 weeks)” Lancet 2007; 369: 43-50

Reddihough, DS and Collins, KJ (2003) “The epidimiology and causes of cerebral palsy”, Australian Journal of Physiotherapy 49: 7-12

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CONSEQUENCES OF DEFENSIVE MEDICINE?

Ø  Commentators suggest that defensive medicine is a significant driver in the rise of health care costs.

Ø  Positive defensive practices may raise the standard of care and be considered ‘reasonable practice’.

Ø  A fear of litigation can lead doctors to conceal errors which they should be focused on remedying.

Ø  Patients being turned away because they are considered high risk.

Omar Salem and Christine Forster, ‘Defensive medicine in general practice: Recent trends and the impact of the Civil Liability Act 2002 (NSW), 2009 17 JLM 235, 246

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Laura Hermer and Howard Brody, ‘Defensive Medicine, Cost Containment, and Reform’, Journal of General Internal Medicine, 470

Samuels A, ‘The English Tort System for Medical Mishaps’, Medico-legal Journal, 2004, Vol. 72(4), 147.

CONSEQUENCES OF DEFENSIVE MEDICINE?

Ø  The practice of “over-treating” increases the risk of iatrogenic injury

Ø  Certain tests carry increased risks,

Ø  Extra testing can increase the risk of psychological harm to patients because of a heightened anxiety about their illness

Ø  There have been recent suggestions that doctors could be sued for unnecessary testing, for example, a patient developing cancer later in life because of unnecessary CT scanning

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The subjective nature of defensive medicine renders any attempts to quantify its impact near impossible.

“Measurement would require quantification of a counterfactual state – an action the physician took that she would not have taken had she held different beliefs about what might protect her liability”.

Laura Hermer and Howard Brody, ‘Defensive Medicine, Cost Containment, and Reform’, Journal of General Internal Medicine, 470

COSTS OF DEFENSIVE MEDICINE

PREVENTING DEFENSIVE PRACTICES

Legislation was implemented across Australian between 2001 and 2004 to:

•  Reduce the number of medical negligence claims

•  Reduce premiums for professional indemnity insurance

•  Reduce the practice of defensive medicine.

Despite a drop in the number of claims and the premiums for professional indemnity insurance , many medical practitioners continue to practice defensive medicine.

29 Omar Salem and Christine Forster, ‘Defensive medicine in general practice: Recent trends and the impact of the Civil Liability Act 2002 (NSW), 2009 17 JLM 235, 246

“The apparent failure to convey the (beneficial) ramifications of the tort law reform changes to the medical profession reinforces the need to complement law reform with appropriate education and information measures”.

MEDICO-LEGAL EDUCATION

Salem & Forster study:

Ø  Despite the reduction in malpractice litigation since tort law reform, 59% of respondents indicated in the survey that they believed there had been an increase in the amount of lawsuits.

Nash et al. study:

Ø  98% of doctors agreed that they make mistakes, yet 54% believed that the law required them to make perfect decisions.

However, the law does NOT require perfection.

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Doctors misunderstand some aspects of the law as it relates to mistakes and adverse outcomes.

Medical practitioner has “a duty to exercise reasonable care and skill in the provision of professional advice and treatment” (Rogers v Whitaker).

Negligence is based on the treatment or advice not being of a reasonable standard.

Defence available to a doctor that they acted in accordance with “peer professional opinion”.

MEDICO-LEGAL EDUCATION

MEDICO-LEGAL EDUCATION

It is important that doctors have greater knowledge of the medico-legal environment, the frequency and types of medico-legal matters, the areas of practice at most risk of litigation and the outcomes of a medico-legal matter. Louise Nash, ‘Medico-legal matters and Australian Doctors: An investigation of doctors' experience of medico-legal matters, their mental health and their practice of medicine’, University of Sydney, Faculty of Medicine, 2010.

Efforts to reduce defensive medicine should concentrate on educating doctors about the “appropriate care in the clinical situations that most commonly prompt defensive medicine” Studdert, D, ‘Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment’, JAMA, 2005, Vol 293, No. 21, p. 2617

Also enable doctors to understand that defensive practices damage decision-making ability and weakens clinical judgment, which in turn may place them at greater risk of litigation.

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RISK MANAGEMENT

Doctors should focus on risk management – identifying, managing and reducing risk.

“Risk management should not be seen as a defensive strategy. Properly applied, risk management improves the quality of care given to patients and the satisfaction both providers and patients derive from health care encounters. There should be no such thing as “defensive medicine”, just “good medicine”. The latter is its own best defence.” Paul Nisselle, ‘Managing Risk in Medical Practice’, Journal of Law and Medicine, 1999, Vol. 7, 133.

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RISK MANAGEMENT One of the most important risk management strategies involves keeping up to date with clinical knowledge, skills and best practice.

Ø  Use appropriate and up-to-date resources to support clinical decision-making.

Ø  Attend peer meetings and discuss management of cases.

Ø  Ensure thorough history taken and examination of their patients

Ø  Document all aspects of the consultation in the clinical record

Ø  Be aware of the scope of their practice and referring patients on appropriately.

Ø  Investigate further if treatment is not working.

Ø  Make use of clinical guidelines

34 Avant, ‘Protect your practice: Risk management’, <http://www.avant.org.au/PracticeManager/Protect-Your-Practice/Risk-management/>

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Communication failures underlie many patient complaints or findings against doctors in legal-related claims.

Ø  Build a patient relationship based on open communication and shared decision-making;

Ø  Show empathy to patients;

Ø  Manage adverse events or complaints in a timely and efficient manner to ensure the patients feels their concerns have been acknowledged and addressed;

Ø  Manage unrealistic patient expectations; and

Ø  Ensure patients understand the implications of a proposed treatment, medication or procedure (obtain informed consent).

RISK MANAGEMENT

THINGS TO REMEMBER

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q  Defensive medicine does not necessarily reduce the risk of litigation, nor is it beneficial to patients and the health economy.

q  The emphasis should be on good clinical practice based on the latest learnings, avoiding foreseeable harm and ensuring patient safety.

q  This will satisfy the reasonable standard of care.

q  A medical negligence claim is not an accusation of incompetence.

q  Like other professionals, doctors may be liable for injury resulting from treatment which falls below a reasonable standard of care. This is not to question their intent, as it is readily accepted that most doctors have their patient’s best interests at heart. The purpose is to compensate the injured patient. Claims also provide scrutiny which often result in overall improvements in medical practice and the standard of treatment provided. This aspect of litigation is sometimes lost in the focus on the negative effects of defensive medicine.

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