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Editor's Note
Up Close In Focus

Spring 2003; Volume 4, Number 1
In Focus

Medical Malpractice and Physician Liability: Examining Alternatives to Defensive Medicine
David Sclar and Michael Housman
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An often-overlooked aspect of medical care is that patients are not the only vulnerable participants in the patient-doctor relationship; physicians have to consider their own needs as well. In particular, physicians need to protect themselves against the risk of making a mistake, causing unintentional harm to a patient, or even evoking the perception that they have acted in error. Most physicians are made quite anxious at the thought of being told that they have mistreated a patient. They especially dread being sued for malpractice, and thus being publicly charged not only with failing to heal a patient, but also with injuring him. After all, doctors are instructed in the Hippocratic Oath to "First, do no harm."

Yet, even the most competent doctors understand that medicine is not an exact science, and that they are not infallible. Thus, doctors realize that they face their own share of risks during the course of their careers, even as they practice a high standard of care, and that they may be held accountable for mistakes. It is perhaps only natural that doctors seek to protect themselves against the threat of being sued for malpractice. According to Kenneth De Ville, a professor of medical humanities at the Brody School of Medicine at East Carolina University, "physicians are not required to be utterly selfless. As the AMA's code of ethics recognizes, physicians have a responsibility to 'self' as well as to their patients and society."[1]

How, then, do doctors avoid dwelling on malpractice fears? How do they cope with the inherent risks of practicing medicine? Most physicians try to protect themselves from liability by practicing defensive medicine - a practice that may protect doctors, but is often damaging to society. This article examines the balance that exists among the interests of physicians, patients and society at-large, and discusses various approaches to malpractice reform. We begin by discussing the phenomenon of defensive medical practice, its causes, potential benefits and problematic effects on both the cost and quality of health care in America. We will then consider some of the more commonly proposed solutions for minimizing the negative effects of defensive medical practice, and discuss both promising aspects and limitations.

Defining Defensive Medicine

Although the term "defensive medicine" has been treated differently by various sources, the Congressional Office of Technology Assessment (OTA) once provided a particularly comprehensive definition, which we will use in this paper:

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.[2]

Defensive medicine, therefore, includes both the omission of potentially necessary care and the administration of potentially unnecessary medical treatment. In fact, the OTA further classifies defensive medicine by dividing it into either "positive" or "negative" subdivisions. 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."[3] 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."[4]

Background to Defensive Medical Practice

The threat of being sued for medical malpractice clearly has a significant influence on the practices of both positive and negative defensive medicine. In order to understand why doctors are driven to practice defensive medicine, we must understand the nature of the malpractice suit threat. We conducted an exhaustive literature review and supplemented this research by conducting interviews with members of the medical and legal professions in order to explore their understandings of the relationship between the threat of medical malpractice and the practice of defensive medicine.

The threat of malpractice places a significant financial burden on practicing physicians. Large settlements or awards in favor of plaintiffs are often highlighted in the media and have led President Bush to propose placing a $250,000 limit on jury awards for non-economic damages to injured patients.[5] In 2000, for instance, jury awards in medical malpractice claims jumped 43% in one year - from $700,000 in 1999 to $1 million.[6] Physicians are often shielded from these costs since most doctors have insurance to protect themselves. A study by Ann Lawthers of the University of Massachusetts Medical School found that usually only about 10% of settlements are paid out of doctors' pockets.[7] On the other hand, physicians may face these costs in the form of higher premiums for malpractice insurance. Recent premium hikes include an anticipated 20% increase from the largest malpractice insurer in Massachusetts, which will bring annual premiums from obstetricians in the state to more than $100,000, the highest of any specialty.[8] Doctors in Florida, New Jersey, and West Virginia have responded to these financial pressures by mounting unprecedented strikes, and others may close their practices or reduce the provision of risky services.

Yet, in our interviews with physicians, we found that the public and personal consequences that doctors suffer when charged with medical malpractice are also significant and may ultimately be a more powerful influence on physicians' behavior than financial concerns.[9] When physicians are accused of malpractice, their medical performance abilities are publicly challenged and their reputations tarnished; some doctors may lose clients, as a result, or even their jobs. As a psychiatrist we interviewed told us, when you are sued, "you're really scared that somehow you're not going to be able to apply your trade anymore."[10] Personally, doctors may feel insulted and disgraced for having faults pointed out. As a Massachusetts hematologist told us, being sued for malpractice is "probably one of the most difficult periods [of a doctor's] life, especially that first time that [he or she is] sued."[11]

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David Sclar, former Editor-in-Chief of the HHPR, is a Masters student at Oxford University, and Michael Housman is a Research Analyst at the Lewin Group. Both authors graduated Harvard College in 2002 with concentrations in Health Policy.

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