A recent article published in the (Casebook Asia) discussed the tricky issue of defensive medicine. According to surveys and reports, over 70 per cent of medical professionals admitted that on occasion they had practised defensively to avoid complaints and claims or said they had noticed colleagues doing so.

What is defensive medicine?

Defensive medicine is commonly defined as the practice of conducting tests and procedures not for the purpose of furthering the diagnosis of patients, but to avoid litigation.

There are two types of defensive medicine:

  • Assurance behaviour (positive defensive medicine) - meaning an increase in tests, follow-ups, referrals, and the prescription of unnecessary drugs
  • Avoidance behaviour (negative defensive medicine) - which reflects the practice of avoiding high risk, invasive procedures and treating high risk patients

Why choose to practise defensively?

The main driving force is the threat of being sued. Litigation involves time and costs, emotional stress and possible damage to a doctor’s reputation. The negative impact of litigation is often perceived to be more costly than the cost of taking precautions. It is also often believed that it is much easier to defend a claim when one has ordered a number of tests as opposed to not ordering a test at all.

Another issue is press interest in healthcare litigation. In countries like Singapore and Hong Kong, the press are aggressive and critical of doctors, which can affect their reputation and thus their income. Media criticism is seen as another contributing factor to doctors practising defensively.

What are the disadvantages of practising defensively?

The practice of "positive" defensive medicine does not necessarily lower the risks of litigation. On the contrary, it can create more risks to both the doctors and patients, as well as causing delays and increased expense in patient care. Additional tests and investigations expose patients to more and unnecessary risks, and are themselves potentially serious violations of the standard of care, which could be the basis of malpractice litigation.

Defensive medicine imposes a high cost to society and also raises patient anxiety. The additional tests may lead to "false positives", meaning that there is an indication that a patient has a disease but actually the disease does not exist. These incidental findings may expose the patient to more unnecessary tests and to further risks such as unnecessary exposure to radiation.

The doctor-patient relationship could also be damaged if the doctor is perceived to be protecting his own position rather than acting in the interests of the patient.

The disadvantages of practising "negative" medicine are more obvious. By avoiding performing high risks or invasive procedures, patients are deprived of receiving proper treatment and care. Doctors may decide not to accept certain types of cases resulting in patients with the greatest need for care, including the most difficult and risky cases, having problems finding a suitable doctor to treat them.

What do courts look at when considering standards of medical care?

A good defence is not based on the number of tests ordered, but the clinical reasoning behind the actions. Doctors are advised to practise safely with evidence-based medicine, and to follow local guidelines and protocols.

In assessing standards of care, courts look for evidence of:

  • Effective communication with patients, explaining what the doctor is doing and why
  • Robust systems for follow-up
  • Transparency about risk
  • Tests based on a thorough clinical history and examination
  • Discussions about difficult cases with colleagues
  • Clear and detailed documentation
  • An understanding about what the doctor seeks to exclude or confirm by understanding a test
  • An understanding about what the doctor seeks to exclude or confirm by understanding a test

Conclusion

Doctors’ fear of being sued is clearly a motivating factor behind defensive medicine but practicing defensive medicine does not always afford doctors a good defence and there are other ways of demonstrating to a court that appropriate care has been given to a patient. A doctor will not always be accurate in his diagnosis and there will always be cases where an unfortunate outcome may arise even when the doctor’s management is up to standard.

The best way to help prevent the issue of that risk is to maintain a good relationship with patient and to take the time to explain to him/her the reasons for your decision. As long as the doctors are acting in accordance with a responsible body of medical opinion (and that means having a logical basis for the decisions taken or treatment given (or not given, as the case may be)), claims against them are unlikely to succeed.