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Troyen A Brennan - One of the best experts on this subject based on the ideXlab platform.
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Defensive Medicine and tort reform a wide view
Journal of General Internal Medicine, 2010Co-Authors: David M Studdert, Michelle M Mello, Troyen A BrennanAbstract:Hermer and Brody’s1 analysis of the relationship between Defensive Medicine and tort reform in this issue of the Journal of General Internal Medicine deftly tackles a number of the major issues in this vexatious policy area. The authors’ main conclusion is that tort reform is a necessary but not sufficient measure to bend the health care cost curve. Although Defensive Medicine costs are small as a proportion of aggregate national health expenditures, without reforms to address the liability fear that drives Defensive practices, it will be difficult to move physicians toward cost-effective health care delivery. We agree. In this editorial, we offer some further thoughts on the points raised by Hermer and Brody. The first point is that, despite what the loudest voices in the malpractice debate might suggest, rigorous measurement of the prevalence and costs of Defensive Medicine is elusive. Bold claims about Defensive Medicine often focus its impact on health system costs. But the challenge begins, as Hermer and Brody note, with the concept of Defensive Medicine itself, which is very slippery. Consider the computed tomography scan done in an emergency department. Is the doctor who orders it motivated by a desire to avoid litigation, by cautiousness unrelated to medico-legal fears, or by the culture of the clinical environment in which she works (which itself, may be shaped to varying degrees by legal risk management concerns)? Or perhaps the motivation is financial: has the hospital spotted a revenue stream from giving patients easy access to its new high-speed scanner? Even when the treatment decision can be pinned to the specter of litigation, in whole or part, what if the scan’s appropriateness in the clinical circumstances at hand sits in a grey area, neither clearly needed nor contraindicated? What if it was ordered for all the wrong reasons, yet turns out to reveal something clinically significant, benefiting the patient? Studies of clinical behavior at the system or population level cannot disentangle motivations, and rarely can account for the clinical benefit of “Defensive” practices. Survey research can probe personal motivations, but has different limitations. Because many physicians are attuned to Defensive Medicine as a problem, and their professional organizations agitate prominently against it, self-report data will always be prone to a “socially-desirable response bias”. In sum, the conceptual complexity of Defensive Medicine means that the even the most rigorous health services research will struggle to isolate its role as an independent driver of clinical decision making and its effects on the quantity and quality of services delivered. Consequently, it is difficult to draw strong conclusions about how much savings will result if Defensive medical practice is reduced. A second point is that evaluating malpractice reform by reference to how well it controls costs through reducing the impulse toward Defensive practice in some ways misses the point. Tort law, of which medical malpractice is one branch, is supposed to compensate patients for the losses they experience due to negligent injury and deter negligence in the future2. Tort scholars conceive of Defensive Medicine as “overdeterrence,” meaning that signals from tort law lead physicians to take more precautions than are socially optimal (considering both the injury-reducing potential of the precautions and their cost)3. Tort reforms should be evaluated not only for their potential to avoid overdeterrence, but also for their potential to achieve appropriate, “true” deterrence—that is, to reduce the incidence of injury due to substandard care. Evaluations should also take into account reforms’ potential to ensure that the liability system reliably delivers compensation to patients who sustain an injury due to negligence. The medical liability system is replete with fundamental problems of misalignment that go far beyond Defensive Medicine. The most serious is the well-documented mismatch between negligent injuries and malpractice litigation4–6. Most instances of negligence do not result in malpractice claims, many malpractice claims do not involve negligent injuries, and the outcomes of malpractice claims often do not match the merits of the claim. Although this mismatch itself drives Defensive Medicine, because physicians cannot feel secure that practicing reasonable care will protect them from being sued, the point is consistently lost in discussions of the need to curb Defensive Medicine. Liability reform should focus on ways to enhance the system’s ability to achieve its core objectives: spurring improvements in quality and safety and compensating injured patients. Even if the goal of liability reform is more limited, to simply reducing Defensive Medicine, it is still imperative to address the mismatch problem. This leads to a third point: conventional tort reforms like caps on noneconomic damages seek merely to limit the economic cost of malpractice litigation for providers, not to change fundamental aspects of how the liability system works. Thus, we might say, they treat the symptoms, not the disease. The question raised by the Hermer and Brody piece, then, is not, is liability reform needed, but what kind of liability reform? The factors Hermer and Brody cite as key reasons to adopt tort reforms are not things that conventional reforms address. The mismatch problem, high overhead costs, and the focus on individual culpability rather than systems breakdowns are all untouched (or even exacerbated) by traditional reforms. For example, limiting the amount of damages for which nonprofit hospitals can be held liable, as some states do, can lead plaintiffs to target individual physicians. Pretrial screening panels add a layer of administrative costs to the litigation process, leading to higher litigation costs overall. Conventional tort reforms also may not achieve the kind of quid pro quo that Hermer and Brody contemplate. They hope that tort reform will make physicians more likely to practice cost-effective care and to acquiesce to policy and practice changes that lower their reimbursement. Although damages caps have been shown to be associated with lower health care utilization in some contexts, as Hermer and Brody discuss, they address only one dimension of the fear that leads physicians to practice Defensively. They limit the economic consequences of being sued, but do not necessarily reduce the risk of suit itself, nor any of the unpleasant aspects of the adversarial litigation process. More promising in achieving the objectives Hermer and Brody outline are more innovative reforms that alter providers’ and liability insurers’ responses to medical injury and provide legal protection for adhering to evidence-based practice7. Creating legal “safe harbors” for physicians who adhere to credible clinical guidelines, for example, could well inspire greater adherence to cost-effective care. Reforms—whether instituted by law or voluntarily implemented by provider organizations and insurers—that facilitate early offers of compensation to injured patients may prevent litigation, reduce litigation costs, and result in lower total liability expenditures. Eliminating fights about negligence by removing this as a condition for receiving compensation could substantially reduce the most painful and stigmatizing aspects of medical injury compensation for physicians. Offering compensation for all avoidable injuries, whether due to negligence or not, would also further the systemic objectives of redressing injuries and providing incentives for safety improvement. That brings us a fourth and final point. Today, ten years after the Institute of Medicine’s launch of the safety movement, patient safety fails to carry the day in many policy debates about liability and health care reform. The linkage of safety to professionalism motivates ongoing research and some real breakthroughs,8, 9 but it is still difficult to identify a convincing business case for improved safety. Some changes are evident: institutions embarrassed by tragic cases must react, many new patient safety programs have been launched, and hospital risk managers really have acquired safety expertise. But it seems unlikely that substantial reductions in the incidence of medical injuries have occurred,10 and whether appropriate levels of resources have been invested in efforts to improve patient safety is questionable. How could that change? We believe nontraditional medical liability reforms can be part of the solution. But as Hermer and Brody quite rightly point out, this is only the beginning. If a true circuit breaker exists, it is likely to be found outside the medical malpractice system itself. One possibility is to alter reimbursement mechanisms to force providers to bear greater financial responsibility for medical injuries or provide greater “pay-for-performance” rewards for reducing injuries. There are already moves among major payers to restrict reimbursement for “never events,” but farther-reaching payment reform may be needed. Whether liability reform will be a sufficient sweetener to win providers’ support for such changes—either in this round of health reform or in the next—remains to be seen.
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liability patient safety and Defensive Medicine what does the future hold
2006Co-Authors: Troyen A Brennan, Michelle M Mello, David M StuddertAbstract:Approaches for dealing with medical injuries are developing quickly today. Publication of the Institute of Medicine's (IOM's) report, To Err Is Human , in 2000 unleashed a variety of innovative ideas, some of which have already prompted policy changes. But the field of patient safety is in its infancy and policy responses to the problem of medical errors remain in flux, suggesting that significant changes lie ahead in the way we address the challenge of reducing the number of patients injured by medical care. To help anticipate how these new policies may affect the medical profession and health care industry, it is critical to examine the recent medical malpractice “crisis.” The connections between strategies to reduce medical injury and the medical malpractice system are vital and often overlooked. Developments in the medical liability arena will affect the evolution and eventual shape of methods used to combat error in Medicine. Moreover, we believe that medical injury policy can and will significantly affect medical liability policy. This chapter focuses on the implications of the medical injury/medical malpractice dynamic for physician behavior. It is informed by research on Defensive Medicine we undertook with support from The Pew Charitable Trusts in 2003 and 2004. This research was motivated in part by the ongoing national crisis in medical liability, which hit Pennsylvania particularly hard from 2001 onward.
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Defensive Medicine among high risk specialist physicians in a volatile malpractice environment
Obstetrical & Gynecological Survey, 2005Co-Authors: David M Studdert, Michelle M Mello, William M Sage, Catherine M Desroches, Jordon Peugh, Kinga Zapert, Troyen A BrennanAbstract:ABSTRACT Defensive Medicine is a departure from sound medical practice that is mostly a response to threatened liability. It has been reported widely in the United States and abroad. Defensive Medicine may supplement care such as by adding tests or treatments; replace care, as by referring the patient elsewhere; or reduce care, for instance by refusing to treat certain patients. A “positive” form of Defensive Medicine involves supplying added services of marginal or no medical value so as to reduce the risk of an adverse outcome, deter a patient from filing a malpractice claim, or demonstrate to the legal system that the standard of care has been met. The investigators undertook a postal survey of physicians working in 6 specialties at high risk of litigation: emergency Medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics-gynecology, and radiology. The 824 respondents represented 65% of those surveyed. Nearly one fourth of respondents practiced obstetrics-gynecology. All but 7% of respondents reported having engaged in some form of Defensive Medicine. Nearly 60% acknowl-edged that they often ordered more diagnostic tests than were medically indicated. Approximately half the respon-dents reported having frequently and unnecessarily referred patients to other specialists; this was especially true of obstetricians-gynecologists. One third of respondents had frequently prescribed more medications than were medically indicated. Imaging studies were very often the most recent Defensive act carried out. The need to detect cancer led to increased diagnostic imaging, specialist referral, and invasive procedures. Obstetricians-gynecologists reported ordering ultrasonograms for both pregnant and nonpregnant patients. Nearly 40% of respondents intend to avoid caring for high-risk patients or have already begun to do so. Occasionally certain high-risk procedures were avoided. In all, more than 40% of respondents had taken steps to limit their practice and eliminate procedures prone to complications such as trauma surgery. Patients with complex medical problems and those seen as litigious also were avoided. Practicing Defensive Medicine correlated closely with a lack of confidence in liability insurance and the burden of paying insurance premiums. Women's health may be especially affected by Defensive medical practices because both obstetrics and breast cancer detection are high-liability areas. Measures are needed to lessen the frequency with which physicians practice Defensive Medicine because of its negative effects on the quality of care from both technical and interpersonal points of view.
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Defensive Medicine among high risk specialist physicians in a volatile malpractice environment
JAMA, 2005Co-Authors: David M Studdert, Michelle M Mello, William M Sage, Catherine M Desroches, Jordon Peugh, Kinga Zapert, Troyen A BrennanAbstract:ContextHow often physicians alter their clinical behavior because of the threat of malpractice liability, termed Defensive Medicine, and the consequences of those changes, are central questions in the ongoing medical malpractice reform debate.ObjectiveTo study the prevalence and characteristics of Defensive Medicine among physicians practicing in high-liability specialties during a period of substantial instability in the malpractice environment.Design, Setting, and ParticipantsMail survey of physicians in 6 specialties at high risk of litigation (emergency Medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology, and radiology) in Pennsylvania in May 2003.Main Outcome MeasuresNumber of physicians in each specialty reporting Defensive Medicine or changes in scope of practice and characteristics of Defensive Medicine (assurance and avoidance behavior).ResultsA total of 824 physicians (65%) completed the survey. Nearly all (93%) reported practicing Defensive Medicine. “Assurance behavior” such as ordering tests, performing diagnostic procedures, and referring patients for consultation, was very common (92%). Among practitioners of Defensive Medicine who detailed their most recent Defensive act, 43% reported using imaging technology in clinically unnecessary circumstances. Avoidance of procedures and patients that were perceived to elevate the probability of litigation was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious. Defensive practice correlated strongly with respondents’ lack of confidence in their liability insurance and perceived burden of insurance premiums.ConclusionDefensive Medicine is highly prevalent among physicians in Pennsylvania who pay the most for liability insurance, with potentially serious implications for cost, access, and both technical and interpersonal quality of care.
Merethe Kirstine Kousgaard Andersen - One of the best experts on this subject based on the ideXlab platform.
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how Defensive Medicine is defined and understood in european medical literature protocol for a systematic review
BMJ Open, 2020Co-Authors: Nathalie Baungaard, Pia Skovvang, Elisabeth Assing Hvidt, Helle Nygaard Gerbild, Merethe Kirstine Kousgaard Andersen, Jesper LykkegaardAbstract:Introduction The term Defensive Medicine, referring to actions motivated primarily by litigious concerns, originates from the USA and has been used in medical research literature since the late 1960s. Differences in medical legal systems between the US and most European countries with no tort legislation raise the question whether the US definition of Defensive Medicine holds true in Europe. Aim To present the protocol of a systematic review investigating variations in definitions and understandings of the term ‘Defensive Medicine’ in European research articles. Methods and analysis In concordance with the Preferred Reporting Items for Systematic Reviews and Meta-Analyses guidelines, a systematic review of all medical research literature that investigate Defensive Medicine will be performed by two independent reviewers. The databases PubMed, Embase and Cochrane will be systematically searched on the basis of predetermined criteria. Data from all included European studies will systematically be extracted including the studies’ definitions and understandings of Defensive Medicine, especially the motives for doing medical actions that the study regards as ‘Defensive’. Ethics and dissemination No ethics clearance is required as no primary data will be collected. The results of the systematic review will be published in a peer-reviewed, international journal. PROSPERO registration number This review has been submitted to International Prospective Register of Systematic Reviews (PROSPERO) and is awaiting registration.
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how is Defensive Medicine understood and experienced in a primary care setting a qualitative focus group study among danish general practitioners
BMJ Open, 2017Co-Authors: Elisabeth Assing Hvidt, Jesper Lykkegaard, Line Bjornskov Pedersen, Kjeld Moller Pedersen, Anders Munck, Merethe Kirstine Kousgaard AndersenAbstract:Objectives Recent years have witnessed a progressive increase in Defensive Medicine (DM) in several Western welfare countries. In Danish primary and secondary care, documentation on the extent of DM is lacking. Before investigating the extent of DM, we wanted to explore how the phenomenon is understood and experienced in the context of general practice in Denmark. The objective of the study was to describe the phenomenon of DM as understood and experienced by Danish general practitioners (GPs). Design A qualitative methodology was employed and data were generated through six focus group interviews with three to eight GPs per group (n=28) recruited from the Region of Southern Denmark. Data were analysed using a thematic content analysis inspired by a hermeneutic-phenomenological focus on understanding and meaning. Results DM is understood as unnecessary and meaningless medical actions, carried out mainly because of external demands that run counter to the GP’s professionalism. Several sources of pressure to act Defensively were identified by the GPs: the system’s pressure to meet external regulations, demands from consumerist patients and a culture among GPs and peers of infallibility and zero-risk tolerance. Conclusions GPs understand DM as unnecessary and meaningless actions driven by external demands instead of a focus on the patient’s problem. GPs consider Defensive actions to be carried out as a result of succumbing to various sources of pressure deriving from the system, the patients, the GPs themselves and peers.
Jesper Lykkegaard - One of the best experts on this subject based on the ideXlab platform.
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how Defensive Medicine is defined and understood in european medical literature protocol for a systematic review
BMJ Open, 2020Co-Authors: Nathalie Baungaard, Pia Skovvang, Elisabeth Assing Hvidt, Helle Nygaard Gerbild, Merethe Kirstine Kousgaard Andersen, Jesper LykkegaardAbstract:Introduction The term Defensive Medicine, referring to actions motivated primarily by litigious concerns, originates from the USA and has been used in medical research literature since the late 1960s. Differences in medical legal systems between the US and most European countries with no tort legislation raise the question whether the US definition of Defensive Medicine holds true in Europe. Aim To present the protocol of a systematic review investigating variations in definitions and understandings of the term ‘Defensive Medicine’ in European research articles. Methods and analysis In concordance with the Preferred Reporting Items for Systematic Reviews and Meta-Analyses guidelines, a systematic review of all medical research literature that investigate Defensive Medicine will be performed by two independent reviewers. The databases PubMed, Embase and Cochrane will be systematically searched on the basis of predetermined criteria. Data from all included European studies will systematically be extracted including the studies’ definitions and understandings of Defensive Medicine, especially the motives for doing medical actions that the study regards as ‘Defensive’. Ethics and dissemination No ethics clearance is required as no primary data will be collected. The results of the systematic review will be published in a peer-reviewed, international journal. PROSPERO registration number This review has been submitted to International Prospective Register of Systematic Reviews (PROSPERO) and is awaiting registration.
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how is Defensive Medicine understood and experienced in a primary care setting a qualitative focus group study among danish general practitioners
BMJ Open, 2017Co-Authors: Elisabeth Assing Hvidt, Jesper Lykkegaard, Line Bjornskov Pedersen, Kjeld Moller Pedersen, Anders Munck, Merethe Kirstine Kousgaard AndersenAbstract:Objectives Recent years have witnessed a progressive increase in Defensive Medicine (DM) in several Western welfare countries. In Danish primary and secondary care, documentation on the extent of DM is lacking. Before investigating the extent of DM, we wanted to explore how the phenomenon is understood and experienced in the context of general practice in Denmark. The objective of the study was to describe the phenomenon of DM as understood and experienced by Danish general practitioners (GPs). Design A qualitative methodology was employed and data were generated through six focus group interviews with three to eight GPs per group (n=28) recruited from the Region of Southern Denmark. Data were analysed using a thematic content analysis inspired by a hermeneutic-phenomenological focus on understanding and meaning. Results DM is understood as unnecessary and meaningless medical actions, carried out mainly because of external demands that run counter to the GP’s professionalism. Several sources of pressure to act Defensively were identified by the GPs: the system’s pressure to meet external regulations, demands from consumerist patients and a culture among GPs and peers of infallibility and zero-risk tolerance. Conclusions GPs understand DM as unnecessary and meaningless actions driven by external demands instead of a focus on the patient’s problem. GPs consider Defensive actions to be carried out as a result of succumbing to various sources of pressure deriving from the system, the patients, the GPs themselves and peers.
David M Studdert - One of the best experts on this subject based on the ideXlab platform.
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Defensive Medicine and tort reform a wide view
Journal of General Internal Medicine, 2010Co-Authors: David M Studdert, Michelle M Mello, Troyen A BrennanAbstract:Hermer and Brody’s1 analysis of the relationship between Defensive Medicine and tort reform in this issue of the Journal of General Internal Medicine deftly tackles a number of the major issues in this vexatious policy area. The authors’ main conclusion is that tort reform is a necessary but not sufficient measure to bend the health care cost curve. Although Defensive Medicine costs are small as a proportion of aggregate national health expenditures, without reforms to address the liability fear that drives Defensive practices, it will be difficult to move physicians toward cost-effective health care delivery. We agree. In this editorial, we offer some further thoughts on the points raised by Hermer and Brody. The first point is that, despite what the loudest voices in the malpractice debate might suggest, rigorous measurement of the prevalence and costs of Defensive Medicine is elusive. Bold claims about Defensive Medicine often focus its impact on health system costs. But the challenge begins, as Hermer and Brody note, with the concept of Defensive Medicine itself, which is very slippery. Consider the computed tomography scan done in an emergency department. Is the doctor who orders it motivated by a desire to avoid litigation, by cautiousness unrelated to medico-legal fears, or by the culture of the clinical environment in which she works (which itself, may be shaped to varying degrees by legal risk management concerns)? Or perhaps the motivation is financial: has the hospital spotted a revenue stream from giving patients easy access to its new high-speed scanner? Even when the treatment decision can be pinned to the specter of litigation, in whole or part, what if the scan’s appropriateness in the clinical circumstances at hand sits in a grey area, neither clearly needed nor contraindicated? What if it was ordered for all the wrong reasons, yet turns out to reveal something clinically significant, benefiting the patient? Studies of clinical behavior at the system or population level cannot disentangle motivations, and rarely can account for the clinical benefit of “Defensive” practices. Survey research can probe personal motivations, but has different limitations. Because many physicians are attuned to Defensive Medicine as a problem, and their professional organizations agitate prominently against it, self-report data will always be prone to a “socially-desirable response bias”. In sum, the conceptual complexity of Defensive Medicine means that the even the most rigorous health services research will struggle to isolate its role as an independent driver of clinical decision making and its effects on the quantity and quality of services delivered. Consequently, it is difficult to draw strong conclusions about how much savings will result if Defensive medical practice is reduced. A second point is that evaluating malpractice reform by reference to how well it controls costs through reducing the impulse toward Defensive practice in some ways misses the point. Tort law, of which medical malpractice is one branch, is supposed to compensate patients for the losses they experience due to negligent injury and deter negligence in the future2. Tort scholars conceive of Defensive Medicine as “overdeterrence,” meaning that signals from tort law lead physicians to take more precautions than are socially optimal (considering both the injury-reducing potential of the precautions and their cost)3. Tort reforms should be evaluated not only for their potential to avoid overdeterrence, but also for their potential to achieve appropriate, “true” deterrence—that is, to reduce the incidence of injury due to substandard care. Evaluations should also take into account reforms’ potential to ensure that the liability system reliably delivers compensation to patients who sustain an injury due to negligence. The medical liability system is replete with fundamental problems of misalignment that go far beyond Defensive Medicine. The most serious is the well-documented mismatch between negligent injuries and malpractice litigation4–6. Most instances of negligence do not result in malpractice claims, many malpractice claims do not involve negligent injuries, and the outcomes of malpractice claims often do not match the merits of the claim. Although this mismatch itself drives Defensive Medicine, because physicians cannot feel secure that practicing reasonable care will protect them from being sued, the point is consistently lost in discussions of the need to curb Defensive Medicine. Liability reform should focus on ways to enhance the system’s ability to achieve its core objectives: spurring improvements in quality and safety and compensating injured patients. Even if the goal of liability reform is more limited, to simply reducing Defensive Medicine, it is still imperative to address the mismatch problem. This leads to a third point: conventional tort reforms like caps on noneconomic damages seek merely to limit the economic cost of malpractice litigation for providers, not to change fundamental aspects of how the liability system works. Thus, we might say, they treat the symptoms, not the disease. The question raised by the Hermer and Brody piece, then, is not, is liability reform needed, but what kind of liability reform? The factors Hermer and Brody cite as key reasons to adopt tort reforms are not things that conventional reforms address. The mismatch problem, high overhead costs, and the focus on individual culpability rather than systems breakdowns are all untouched (or even exacerbated) by traditional reforms. For example, limiting the amount of damages for which nonprofit hospitals can be held liable, as some states do, can lead plaintiffs to target individual physicians. Pretrial screening panels add a layer of administrative costs to the litigation process, leading to higher litigation costs overall. Conventional tort reforms also may not achieve the kind of quid pro quo that Hermer and Brody contemplate. They hope that tort reform will make physicians more likely to practice cost-effective care and to acquiesce to policy and practice changes that lower their reimbursement. Although damages caps have been shown to be associated with lower health care utilization in some contexts, as Hermer and Brody discuss, they address only one dimension of the fear that leads physicians to practice Defensively. They limit the economic consequences of being sued, but do not necessarily reduce the risk of suit itself, nor any of the unpleasant aspects of the adversarial litigation process. More promising in achieving the objectives Hermer and Brody outline are more innovative reforms that alter providers’ and liability insurers’ responses to medical injury and provide legal protection for adhering to evidence-based practice7. Creating legal “safe harbors” for physicians who adhere to credible clinical guidelines, for example, could well inspire greater adherence to cost-effective care. Reforms—whether instituted by law or voluntarily implemented by provider organizations and insurers—that facilitate early offers of compensation to injured patients may prevent litigation, reduce litigation costs, and result in lower total liability expenditures. Eliminating fights about negligence by removing this as a condition for receiving compensation could substantially reduce the most painful and stigmatizing aspects of medical injury compensation for physicians. Offering compensation for all avoidable injuries, whether due to negligence or not, would also further the systemic objectives of redressing injuries and providing incentives for safety improvement. That brings us a fourth and final point. Today, ten years after the Institute of Medicine’s launch of the safety movement, patient safety fails to carry the day in many policy debates about liability and health care reform. The linkage of safety to professionalism motivates ongoing research and some real breakthroughs,8, 9 but it is still difficult to identify a convincing business case for improved safety. Some changes are evident: institutions embarrassed by tragic cases must react, many new patient safety programs have been launched, and hospital risk managers really have acquired safety expertise. But it seems unlikely that substantial reductions in the incidence of medical injuries have occurred,10 and whether appropriate levels of resources have been invested in efforts to improve patient safety is questionable. How could that change? We believe nontraditional medical liability reforms can be part of the solution. But as Hermer and Brody quite rightly point out, this is only the beginning. If a true circuit breaker exists, it is likely to be found outside the medical malpractice system itself. One possibility is to alter reimbursement mechanisms to force providers to bear greater financial responsibility for medical injuries or provide greater “pay-for-performance” rewards for reducing injuries. There are already moves among major payers to restrict reimbursement for “never events,” but farther-reaching payment reform may be needed. Whether liability reform will be a sufficient sweetener to win providers’ support for such changes—either in this round of health reform or in the next—remains to be seen.
-
liability patient safety and Defensive Medicine what does the future hold
2006Co-Authors: Troyen A Brennan, Michelle M Mello, David M StuddertAbstract:Approaches for dealing with medical injuries are developing quickly today. Publication of the Institute of Medicine's (IOM's) report, To Err Is Human , in 2000 unleashed a variety of innovative ideas, some of which have already prompted policy changes. But the field of patient safety is in its infancy and policy responses to the problem of medical errors remain in flux, suggesting that significant changes lie ahead in the way we address the challenge of reducing the number of patients injured by medical care. To help anticipate how these new policies may affect the medical profession and health care industry, it is critical to examine the recent medical malpractice “crisis.” The connections between strategies to reduce medical injury and the medical malpractice system are vital and often overlooked. Developments in the medical liability arena will affect the evolution and eventual shape of methods used to combat error in Medicine. Moreover, we believe that medical injury policy can and will significantly affect medical liability policy. This chapter focuses on the implications of the medical injury/medical malpractice dynamic for physician behavior. It is informed by research on Defensive Medicine we undertook with support from The Pew Charitable Trusts in 2003 and 2004. This research was motivated in part by the ongoing national crisis in medical liability, which hit Pennsylvania particularly hard from 2001 onward.
-
Defensive Medicine among high risk specialist physicians in a volatile malpractice environment
Obstetrical & Gynecological Survey, 2005Co-Authors: David M Studdert, Michelle M Mello, William M Sage, Catherine M Desroches, Jordon Peugh, Kinga Zapert, Troyen A BrennanAbstract:ABSTRACT Defensive Medicine is a departure from sound medical practice that is mostly a response to threatened liability. It has been reported widely in the United States and abroad. Defensive Medicine may supplement care such as by adding tests or treatments; replace care, as by referring the patient elsewhere; or reduce care, for instance by refusing to treat certain patients. A “positive” form of Defensive Medicine involves supplying added services of marginal or no medical value so as to reduce the risk of an adverse outcome, deter a patient from filing a malpractice claim, or demonstrate to the legal system that the standard of care has been met. The investigators undertook a postal survey of physicians working in 6 specialties at high risk of litigation: emergency Medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics-gynecology, and radiology. The 824 respondents represented 65% of those surveyed. Nearly one fourth of respondents practiced obstetrics-gynecology. All but 7% of respondents reported having engaged in some form of Defensive Medicine. Nearly 60% acknowl-edged that they often ordered more diagnostic tests than were medically indicated. Approximately half the respon-dents reported having frequently and unnecessarily referred patients to other specialists; this was especially true of obstetricians-gynecologists. One third of respondents had frequently prescribed more medications than were medically indicated. Imaging studies were very often the most recent Defensive act carried out. The need to detect cancer led to increased diagnostic imaging, specialist referral, and invasive procedures. Obstetricians-gynecologists reported ordering ultrasonograms for both pregnant and nonpregnant patients. Nearly 40% of respondents intend to avoid caring for high-risk patients or have already begun to do so. Occasionally certain high-risk procedures were avoided. In all, more than 40% of respondents had taken steps to limit their practice and eliminate procedures prone to complications such as trauma surgery. Patients with complex medical problems and those seen as litigious also were avoided. Practicing Defensive Medicine correlated closely with a lack of confidence in liability insurance and the burden of paying insurance premiums. Women's health may be especially affected by Defensive medical practices because both obstetrics and breast cancer detection are high-liability areas. Measures are needed to lessen the frequency with which physicians practice Defensive Medicine because of its negative effects on the quality of care from both technical and interpersonal points of view.
-
Defensive Medicine among high risk specialist physicians in a volatile malpractice environment
JAMA, 2005Co-Authors: David M Studdert, Michelle M Mello, William M Sage, Catherine M Desroches, Jordon Peugh, Kinga Zapert, Troyen A BrennanAbstract:ContextHow often physicians alter their clinical behavior because of the threat of malpractice liability, termed Defensive Medicine, and the consequences of those changes, are central questions in the ongoing medical malpractice reform debate.ObjectiveTo study the prevalence and characteristics of Defensive Medicine among physicians practicing in high-liability specialties during a period of substantial instability in the malpractice environment.Design, Setting, and ParticipantsMail survey of physicians in 6 specialties at high risk of litigation (emergency Medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology, and radiology) in Pennsylvania in May 2003.Main Outcome MeasuresNumber of physicians in each specialty reporting Defensive Medicine or changes in scope of practice and characteristics of Defensive Medicine (assurance and avoidance behavior).ResultsA total of 824 physicians (65%) completed the survey. Nearly all (93%) reported practicing Defensive Medicine. “Assurance behavior” such as ordering tests, performing diagnostic procedures, and referring patients for consultation, was very common (92%). Among practitioners of Defensive Medicine who detailed their most recent Defensive act, 43% reported using imaging technology in clinically unnecessary circumstances. Avoidance of procedures and patients that were perceived to elevate the probability of litigation was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious. Defensive practice correlated strongly with respondents’ lack of confidence in their liability insurance and perceived burden of insurance premiums.ConclusionDefensive Medicine is highly prevalent among physicians in Pennsylvania who pay the most for liability insurance, with potentially serious implications for cost, access, and both technical and interpersonal quality of care.
Elisabeth Assing Hvidt - One of the best experts on this subject based on the ideXlab platform.
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how Defensive Medicine is defined and understood in european medical literature protocol for a systematic review
BMJ Open, 2020Co-Authors: Nathalie Baungaard, Pia Skovvang, Elisabeth Assing Hvidt, Helle Nygaard Gerbild, Merethe Kirstine Kousgaard Andersen, Jesper LykkegaardAbstract:Introduction The term Defensive Medicine, referring to actions motivated primarily by litigious concerns, originates from the USA and has been used in medical research literature since the late 1960s. Differences in medical legal systems between the US and most European countries with no tort legislation raise the question whether the US definition of Defensive Medicine holds true in Europe. Aim To present the protocol of a systematic review investigating variations in definitions and understandings of the term ‘Defensive Medicine’ in European research articles. Methods and analysis In concordance with the Preferred Reporting Items for Systematic Reviews and Meta-Analyses guidelines, a systematic review of all medical research literature that investigate Defensive Medicine will be performed by two independent reviewers. The databases PubMed, Embase and Cochrane will be systematically searched on the basis of predetermined criteria. Data from all included European studies will systematically be extracted including the studies’ definitions and understandings of Defensive Medicine, especially the motives for doing medical actions that the study regards as ‘Defensive’. Ethics and dissemination No ethics clearance is required as no primary data will be collected. The results of the systematic review will be published in a peer-reviewed, international journal. PROSPERO registration number This review has been submitted to International Prospective Register of Systematic Reviews (PROSPERO) and is awaiting registration.
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how is Defensive Medicine understood and experienced in a primary care setting a qualitative focus group study among danish general practitioners
BMJ Open, 2017Co-Authors: Elisabeth Assing Hvidt, Jesper Lykkegaard, Line Bjornskov Pedersen, Kjeld Moller Pedersen, Anders Munck, Merethe Kirstine Kousgaard AndersenAbstract:Objectives Recent years have witnessed a progressive increase in Defensive Medicine (DM) in several Western welfare countries. In Danish primary and secondary care, documentation on the extent of DM is lacking. Before investigating the extent of DM, we wanted to explore how the phenomenon is understood and experienced in the context of general practice in Denmark. The objective of the study was to describe the phenomenon of DM as understood and experienced by Danish general practitioners (GPs). Design A qualitative methodology was employed and data were generated through six focus group interviews with three to eight GPs per group (n=28) recruited from the Region of Southern Denmark. Data were analysed using a thematic content analysis inspired by a hermeneutic-phenomenological focus on understanding and meaning. Results DM is understood as unnecessary and meaningless medical actions, carried out mainly because of external demands that run counter to the GP’s professionalism. Several sources of pressure to act Defensively were identified by the GPs: the system’s pressure to meet external regulations, demands from consumerist patients and a culture among GPs and peers of infallibility and zero-risk tolerance. Conclusions GPs understand DM as unnecessary and meaningless actions driven by external demands instead of a focus on the patient’s problem. GPs consider Defensive actions to be carried out as a result of succumbing to various sources of pressure deriving from the system, the patients, the GPs themselves and peers.
