Better care is the best defense: High-value clinical practice vs defensive medicine

"I view every patient as a potential lawsuit." This statement is jolting. Yet more than 69% of neurosurgeons in a recent study said they agreed or strongly agreed with this survey question.¹ What are its implications for patients, for clinical practice, and for the US health care system?

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There are many frustrations in the delivery of health care today, for patients as well as for physicians. For physicians, concern about medical liability is a large one, with secondary implications for both health care costs and quality. The Institute of Medicine has estimated that $765 billion—or 30 cents out of every dollar spent on health care—is wasted annually in the United States, adding to the financial burden of health care without benefiting patients.² A significant portion of this waste, estimated at $210 billion, is related to unnecessary services that are under the control of physicians, including overuse and misuse of diagnostic testing and treatment. This type of care is not only wasteful, but also has the potential to harm.

Factors thought to be responsible for this inappropriate care include the expectations of patients, physician or patient discomfort with uncertainty, and unnecessary and costly consultations. But the factor that physicians cite most often is concern about malpractice suits, raised by 76% of physicians responding to a survey.³

THE DILEMMAS ILLUSTRATED

Here are two cases—to which we will return later—that illustrate the dilemmas faced by physicians deciding how aggressively to pursue a diagnosis:

Patient 1. A 32-year-old woman comes to your office for evaluation of intermittent headaches over the past year. After a detailed history and a normal physical examination, you believe that these are tension headaches. Should you order an imaging study of the brain, just to avoid the risk of a malpractice suit in the unlikely event that this could be the presenting symptom of a brain tumor?

Patient 2. A 60-year-old man presents to the emergency room with pleuritic chest pain. Calculation of pretest probability by modified Wells criteria indicates that pulmonary embolus is unlikely. Because missing the diagnosis can lead to a malpractice suit, should you still order computed tomographic (CT) pulmonary angiography to rule out an embolus?

JUST ONE MORE TEST CAN’T HURT…

Defensive medicine is the ordering or avoiding of tests or procedures primarily out of concern about malpractice liability.⁴ It increases health care costs, but by how much is unclear.⁵ It can harm the patient-physician relationship and trust and can also harm patients, especially if overtesting and treatment lead to false-positive results and more tests, which actually can result in liability. And it is not the highest-value care for patients.

Physicians have an ethical duty to do what is best for the individual patient; they also have a responsibility to society to practice effective health care that uses resources responsibly.⁶ And despite telling ourselves and our patients that one more test will give us confirmation of results and therefore comfort, a recent review found that tests performed based on symptoms with low risk of being caused by serious illness “do little to reassure patients, decrease their anxiety, or resolve their symptoms.”⁷

MALPRACTICE LIABILITY RISK: PERCEPTION AND REALITY

Physicians often overestimate their risk of liability. Only a small percentage (5%) of claims go to trial, and of those, 90% are won by the physician, according to a 2008 analysis by the Physician Insurers Association of America.⁸ A study of claims between 2002 and 2005 found that 4.5% of claims resulted in trial verdicts, of which 80% were in favor of the physician, with cases against internists and internal medicine-based subspecialists least likely to result in a trial verdict (2.7%).⁹

Even so, being sued is extremely stressful and is associated with distinct physical and emotional distress for most physicians.^10,11 Charles has found that, “As a group, physicians are acutely sensitive to any suggestions that they have failed to meet the standard of care or are not ‘good’ doctors… This accusation of failure represents a personal assault.”¹¹

Physician concerns about liability are not very different in states with tort reforms such as damage caps compared with those without.⁵ Some posit that physicians may overestimate the risk of liability as part of the human tendency to overestimate the risk of rare events that are difficult to experience and difficult to control.¹²

In the study of neurosurgeons cited previously, 72% of respondents said they ordered imaging, 67% did laboratory tests, and 66% referred patients for consults “solely” to “minimize the risk of a lawsuit.”¹ The authors of the study maintain that, over time, this affects the standard of care. “While physicians in the past may have used a thorough history and physical to guide imaging, in this study, 72% of neurosurgeons surveyed stated that they order additional imaging studies solely to mitigate liability risk. This suggests that in reality, imaging is becoming a standard part of the initial workup.”¹ Unfortunately, this new standard of care is based on false assumptions and is artificially and inappropriately changed. That perception of liability risk deeply influences practice.

DO THE RIGHT THING: AVOIDING UNNECESSARY TESTING

But physicians also acknowledge the need to follow practice guidelines and to avoid unnecessary testing. In one survey,¹³ 79% strongly or moderately agreed with the statement that physicians “should adhere to clinical guidelines that discourage the use of interventions that have a small proven advantage over standard intervention but cost much more”; 89% strongly or moderately agreed that “doctors need to take a more prominent role in limiting use of unnecessary tests”; and 78% said they “should be solely devoted to individual patients’ best interests, even if that is expensive.”¹³

This may be summarized as, “Provide the clinically appropriate care to the patient based on the best evidence.” But of course, this is easier said than done.