For a significant percentage of doctors in the UK, the possibility of being sued for clinical negligence affects the decisions they make, and the care they offer patients. Is there a problem with that?
Consider this hypothetical but simplified scenario. A patient visits their GP complaining of headaches. Having examined them, and taken a full history, the GP diagnoses migraines, and says that the sensible approach, in the first instance, is a course of painkillers. The patient is convinced their condition is more serious and that painkillers will not suffice. The GP, concerned about the anxiety the patient feels but perhaps also fearing criticism from the patient if he is wrong, refers them to the local hospital for a scan.
The scan confirms that the patient in fact has a brain tumour and that the tumour is the most likely cause of the headaches. Following various tests the patient and the consultant meet. The consultant considers surgery to be the patient’s best option for the patient but, because of the tumour’s position, there is a material risk of an adverse result. In part due to the risk of a claim if surgery goes wrong, the consultant recommends chemotherapy instead.
Both of the hypothetical (and highly simplified) medical decisions outlined above are examples of what is sometimes termed defensive medicine. Defensive medicine is where the care or advice given by a medical practitioner is materially influenced by the possibility of litigation. Doctors, fearing a claim, do what they can to minimise the risk of their decisions being wrong. The GP’s decision is an example of positive defensive medicine, where additional steps are taken which the doctor thinks are not medically justified. The consultant’s decision is negative defensive medicine,which is the avoidance of high risk procedures or patients.
Can cause side effects
Defensive medicine is an increasingly frequent side-effect of rising numbers of clinical negligence claims. Perhaps unsurprisingly, it is a recognised feature of the medical landscape in the USA but is also common in the UK. The case study highlights some particularly dramatic examples but it often exists on a more "mundane" level: an extra blood test for patient A, an unnecessary course of drugs for patient B. Nor are such decisions necessarily a conscious response to concerns around a particular patient. Defensive medicine can easily become a pervasive, unnoticed habit, arising not from a definite sense that this particular patient (or their family) is inclined to be litigious, just that patients in general more frequently are.
But is defensive medicine harmful? After all, in our hypothetical scenario did not the GP’s referral, arising in part from a fear of criticism, result in the discovery of a treatable brain tumour? There must be cases like that where a hyper-cautious approach results in a more accurate diagnosis. However defensive medicine does have a number of less positive repercussions.
Firstly there is the financial aspect. Positive defensive medicine places additional burdens (financial and administrative) on the health service. After all, in my example the GP is proved wrong, but if 9 times out of 10 (say) he was right, the brain scan would be clinically unnecessary. A private patient can pay for such if they choose, but resources in the NHS are limited and brain scans cost money that could be spent elsewhere.
More importantly for clinicians are the ethical implications. It is axiomatic that doctors should act in the best interests of their patients. Defensive medicine by definition introduces an alien consideration into the decision making process: doctors’ concerns about their own position. The decision of the hypothetical consultant above is a case where the two considerations conflict. She has recommended the option that is safest for her, not necessarily best for the patient. Nor can it be assumed that positive defensive medicine is necessarily in the patient’s best interests, particularly if it involves invasive tests and procedures.
Thinking more widely, there are concerns that this phenomenon has a chilling effect in inhibiting medical innovation. In short, doctors are unwilling to try new techniques and methods because they fear being sued if things go wrong. Imagine the situation if our consultant wanted to operate on the tumour because she knew of a new technique for doing so which she considers will reduce the risk of an adverse result. However, it is still relatively untried at this stage. In those circumstances, will the new technique ever be tried?
As the law currently stands, if the consultant could show that a responsible body of medical opinion would support her recommendation (the Bolam test), she could go ahead and would not be found negligent if there was an adverse result. If she did not think medical opinion would support her, or was not sure, at present she would be on legally uncertain ground.
There are legal changes afoot to protect doctors in such situations who would otherwise fail the Bolam test or be discouraged from acting because of adverse reporting in for example morbidity reviews. The Medical Innovation Bill, which is currently out to consultation (the deadline for responses is 25 April) says that that a doctor is not negligent in departing from the existing range of accepted medical treatments provided they act responsibly. A doctor then has to show they have considered a number of factors (risks, likely success rates, potential consequences, and the views of the patient and other doctors) and followed a process which is transparent, accountable, and allows full scope for considering all relevant matters.
The Medical Innovation Bill seems to have a considerable support, from both doctor and patient groups. It does not, of course, address the underlying cause which is the fear of litigation. The obvious way of removing that fear is to remove any possibility of litigation but it is highly questionable whether that would be desirable or gain widespread support (except from doctors). It should be pointed out, however, that relatively few claims arise from the failure to order extra tests, or the avoidance of risky procedures. Far more significant danger lurks in the routine operations where it is least expected. Often it is not the unusual that produces a claim, but the banal.
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