10


patients. It is estimated that 1.5-2% of all US cancers are attributable to CT scans.11 Dr Lawrence Ng, an MPS


medicolegal consultant based in Singapore, says that during the last 20 years, doctors in Asia have become more careful in their diagnostic work. “There is a greater tendency to order more tests and x-rays to support one’s clinical diagnosis. Although in a patient safety-saturated culture it is prudent to do this, it does raise costs and patient anxiety.”


WOULD DEFENSIVE MEDICINE LOWER THE RISK OF LITIGATION? No, defensive medicine is different from defensible practice, which is good practice – defensive medicine is not: it could, in fact, make your practice more risky. Kravitz et al attempted to


quantify the risk presented by defensive medicine by analysing malpractice claims from a single north-eastern state in the USA. Claims ascribed to diagnostic and monitoring omissions accounted for less than 5%.12 The overall incidence rate was 1.7 per 100 doctor-years, so the average doctor practising in one of the specialties studied would be sued for omitting a necessary diagnostic test once every 59 years! Doctors seeking to lower


malpractice risk would avert very few lawsuits by ordering more diagnostic tests and monitoring procedures than they do now. In fact, ordering more tests could increase the malpractice risk, according to Michael Jones, who argues that doctors could be considered negligent for overtesting.13 Budetti supports these


assertions: “The greatest irony is that defensive medicine may be counterproductive and actually might increase malpractice risk… Unnecessary treatment and invasive procedures… are themselves potentially serious violations of the standard of care and could be the basis of malpractice litigation.”14 MPS medicolegal adviser Dr


Janet Page draws on both these points: she argues that as some tests may be invasive and have their own inherent risks, doctors


Box A: To avoid complaints and claims, MPS members said they: Refer more patients for a second opinion


Are more careful to ensure that the correct follow-up arrangements are in place


Kept more detailed records Changed prescribing habits Conduct more investigations


Have a lower threshold for removing patients from practice lists


Stopped dealing with certain conditions/performing certain procedures 0 20 40 % agreeing 60 80 100


could potentially be criticised for ordering investigations that are not in patients’ best interests (eg, if the risks associated with the procedures outweigh any potential benefit to the patient). So if a doctor refused to


order a test that established medical guidelines state is not necessary, could they be sued? Dr Page answers: “A doctor


can always be sued, but the claim is very unlikely to succeed if the doctor is acting in accordance with a responsible body of medical opinion (Bolam) and whether those decisions stand up to logical analysis and scrutiny (Bolitho). If a doctor takes the time and trouble to explain to patients the reason for the decision in the first place, it may reduce the chance of the patient bringing a claim.” According to Dr Page, over-


cautious doctors are unlikely to decrease the rate of negligence claims. Most claims arise not because of substandard care, but because of a failure in communication between the doctor and patient. So, defensive medicine could


itself damage the doctor–patient relationship if a patient perceived that a doctor was acting simply to protect their own position, rather than out of a desire to do what was best for the patient. Another element of this is


that in countries with a lot of private patients, they may be motivated by money, specifically getting their medical fees reimbursed. This will generate a proportion of claims that are clear “try-ons”; practising defensively is unlikely to impact on these cases, nor deter the patients from pursuing them.


HOW TO AVOID PRACTISING DEFENSIVELY


Remember the risk of being sued is low The chances of being sued are much lower than you think. If you study the number of clinical consultations and the percentage that result in a claim, it is a low incidence. Doctors should not be paranoid about being sued as this is not evidence-based thinking. If you can justify your decision not to order a test, it can be defended. Rachel Morris, an MPS solicitor,


says: “If you are sued you will be asked why you did or did not do something. A defence will not be based on the number of tests you did, but the clinical reasoning behind your actions. “As long as you can look


back and justify your decision in accordance with a responsible body of opinion, you are safeguarding your practice. That is why it is so important to keep good notes, so that you will be able to remember the clinical reasoning behind your decisions.”


STRATEGIES TO MINIMISE DEFENSIVE MEDICAL PRACTICES


■ Communicate effectively with patients, explaining what you are doing and why


■ Have robust systems for follow-up ■ Be open about risk ■ Offer an appropriate standard of care ■ Only order tests based on a thorough clinical history and examination


■ Discuss difficult cases with colleagues ■ Keep clear and detailed documentation ■ Know what it is you seek to exclude or confirm with a test to determine if it’s necessary


■ Identify learning needs (find good mentor) ■ Undertake courses or independent study.


SPECIAL FEATURE


UNITED KINGDOM CASEBOOK | VOLUME 19 | ISSUE 1 | JANUARY 2011 www.mps.org.uk


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