Avoiding Litigation With Defensive Medicine: Where Do We Draw the Line?
Physicians must balance the diagnostic worth of a test with the desire to avoid potential future litigation.
Problems in ethics almost always exist on a spectrum. On one end, actions or ideas are obviously okay, and on the other end, they are clearly not okay. Between those poles lives a nebulous grey area in which we are forced to make a judgment about whether whatever it is that we are evaluating is, or is not, acceptable. It's not easy. Ethicists have developed a whole toolbox for tackling these problems, but a lot of the time there can simply never be a complete, or even satisfying, solution. Nonetheless, in spite of the futility, we are again and again forced to wrestle with the same questions: How do we figure out how to separate good from bad? Where do we draw the line?
The scourge of defensive medicine — the practice of recommending tests or treatments for the purpose of avoiding or mitigating litigation — has been dissected tirelessly. There can be other causes, like a generalized propensity for risk-aversion or financial incentives for increasing patient revenue, but the principal driver of this behavior is the desire to avoid litigation.1 It is a tale as old as time. Hammurabi's Code, published back in the 18th century BC, is thought to have ushered in the first wave of defensive medicine by mandating that physician malpractice be punished by cutting off the offender's hands.2
These days, appendages are typically left intact, and instead the physician's pocketbook is left to bear the brunt of the burden, by way of increased insurance premiums. Malpractice insurance premiums can be staggering — for some specialties, the yearly bill can easily spill into the 6 figures3 — but they are dwarfed by the cost of defensive medicine that is shouldered by the healthcare system more generally. The annual cost of these practices in the United States is thought to be something like $46 billion, and incredibly, more than a quarter of physicians' orders have been judged to be at least partially defensive.4 The best defense might be a good offense, but if you can't have that, apparently the next best solution is to order a bunch of needless tests.
The never-ending stream of highly technical but often dubious information being delivered directly to patients' smartphones only exacerbates our defensive instincts. The power of the internet has left the lay public more — if not necessarily more intelligently — informed than ever before. In addition to destabilizing the doctor's hegemony over the examination room, this development has prompted some practitioners to acquiesce to the unreasonable demands of some aggressive patients and avoid others altogether; either way, a naked bid to neuter future lawsuits.
Overuse of technological aids, even if initially motivated by the whims of an overzealous patient, can very plausibly snowball into widespread practice, and perhaps eventually mature into the de facto, or even legal, standard of care. This sequence of events is made all the more inevitable as advances in the sophistication of the hardware and software supporting medical practice drive down the likelihood of a missed diagnosis, and in turn multiply the payout associated with any successful malpractice suit. This new paradigm also invites doctors to place an ever-greater reliance on automated systems to read imaging and perform other fundamental tasks because deviating from the suggestions of increasingly accurate algorithms could be difficult to explain in court. Better to let the computer make the tough call and live to fight another day.
Putting the financial strain on our healthcare system to one side, how much of this evolution is really unfavorable? Better informed patients, for instance, are more likely to assert autonomy over their own health and embrace the preventive measures suggested by their doctors. Physicians should be willing to loosen our iron grip on the interactions we have with patients in the examination room, and certainly, any technological advance that both increases the likelihood of detecting an abnormality and creates higher legal standards for diagnostic accuracy should be applauded and embraced. From a patient-centric standpoint, these are features, not bugs.
What I am suggesting is that it is entirely possible, and perhaps even inevitable, that improvements in patient engagement and diagnostic accuracy are inextricably linked to the increased practice of defensive medicine. You can't have one without the other. Therefore, the question we should be asking is whether a marginal increase in the practice of defensive medicine is truly too high a price to pay for these improvements? How do we figure out how to separate developments that are a net benefit to our healthcare system from those that are not?
Picture a grid where the horizontal axis denotes a test's diagnostic worth, and the vertical axis quantifies the same test's value in avoiding litigation. The extent to which any given action can be classified as “defensive” will be defined by its position on the grid. The most defensive test — one with zero diagnostic worth but full value in evading litigation — will be marooned out in the corner of the grid. An intervention such as that, or one that is even in the general vicinity, does nothing to advance patient-centric goals and clearly has no place in contemporary medical practice. However, what if the test were of average diagnostic value and average litigation avoidance value? Or in the 75th percentile of both measures? 25th percentile in both? 25th percentile in one, but 75th percentile in the other? Vice versa? All of a sudden, we find ourselves in that nebulous grey area — where there are no complete or satisfying answers, only murky judgments on which billions of dollars and thousands of lives depend.
Where do we draw the line?
- Sekhar MS, Vyas N. Defensive medicine: a bane to healthcare. Ann Med Health Sci Res. 2013;3(2):295-296.
- Faria MA Jr. Hammurabi, defensive medicine, and practice guidelines. J Med Assoc Ga. 1995.
- Smith TR, Habib A, Rosenow JM, et al. Defensive medicine in neurosurgery: does state-level liability risk matter?Neurosurgery. 2015;76(2):105-113.
- Rothberg MB, Class J, Bishop TF, Friderici J, Kleppel R, Lindenauer PK. The cost of defensive medicine on 3 hospital medicine services. JAMA Intern Med. 2014;174(11):1867-1868.