Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment

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Context How 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.

Objective To 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 Participants Mail 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 Measures Number of physicians in each specialty reporting defensive medicine or changes in scope of practice and characteristics of defensive medicine (assurance and avoidance behavior).

Results A 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.

Conclusion Defensive 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.

Defensive medicine is a deviation from sound medical practice that is induced primarily by a threat of liability.1,2 Defensive medicine has been reported widely in the United States and abroad.3-6 However, its prevalence and characteristics remain controversial.7

Defensive medicine may supplement care (eg, additional testing or treatment), replace care (eg, referral to another physician or health facility), or reduce care (eg, refusal to treat particular patients).8,9 Some practices, herein termed assurance behavior (sometimes called “positive” defensive medicine), involve supplying additional services of marginal or no medical value with the aim of reducing adverse outcomes, deterring patients from filing malpractice claims, or persuading the legal system that the standard of care was met. Other practices, herein termed avoidance behavior (sometimes called “negative” defensive medicine), reflect physicians’ efforts to distance themselves from sources of legal risk. Defensive medicine, particularly avoidance behavior, encompasses both day-to-day clinical decisions affecting individual patients and more systematic alterations of scope and style of practice.

Defensive medicine has mainly been invoked as an argument for tort reform in the years between malpractice crises when other pressures for legal change have ebbed.10 Analysts have focused on liability concerns as contributing incrementally to the overuse of health care services in the United States and the waste of scarce economic resources.11 We hypothesized that during a more volatile period in liability insurance markets, physicians’ uncertainty about the costs and availability of coverage may induce a wider array of defensive practices, affecting not only the cost of health care but also its accessibility and quality.12

We queried a group of physicians at high risk of malpractice claims about the frequency and nature of their defensive practices. These physicians’ liability risk stemmed from location of their practice in Pennsylvania, a state that has been hit particularly hard by the latest malpractice “crisis.”13 At the time of the study, several liability insurers had recently left the Pennsylvania market and premiums charged by the remaining insurers had risen dramatically over the preceding 3 years.13 For example, the cost of a standard primary-layer policy for Philadelphia general surgeons at the largest insurer rose from $33 684 in 2000 to $72 518 in 2003, excluding a mandatory contribution to the state’s secondary-layer insurance fund (amounting to 43% of the primary premium in 2003).14 The physicians we surveyed came from 6 specialties that have been acutely affected by high rates of litigation and steep premium increases. We requested specific details of defensive practices undertaken. We also tested whether the odds of physicians’ practicing defensively were associated with objective and subjective measures of their liability burden.

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American Medical Association