Dr Rob Hendry - Medical Protection Society

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10 SPECIAL FEATURE UNITED KINGDOM CASEBOOK | VOLUME 19 | ISSUE 1 | JANUARY 2011 www.mps.org.uk patients. It is estimated that 1.5-2% of all US cancers are attributable to CT scans. 11 Dr Lawrence Ng, an MPS medicolegal consultant based in Singapore, says that during the last 20 years, doctors in Asia have become more careful in their diagnostic work. “There is a greater tendency to order more tests and x-rays to support one’s clinical diagnosis. Although in a patient safety-saturated culture it is prudent to do this, it does raise costs and patient anxiety.” WOULD DEFENSIVE MEDICINE LOWER THE RISK OF LITIGATION? No, defensive medicine is different from defensible practice, which is good practice – defensive medicine is not: it could, in fact, make your practice more risky. Kravitz et al attempted to quantify the risk presented by defensive medicine by analysing malpractice claims from a single north-eastern state in the USA. Claims ascribed to diagnostic and monitoring omissions accounted for less than 5%. 12 The overall incidence rate was 1.7 per 100 doctor-years, so the average doctor practising in one of the specialties studied would be sued for omitting a necessary diagnostic test once every 59 years! Doctors seeking to lower malpractice risk would avert very few lawsuits by ordering more diagnostic tests and monitoring procedures than they do now. In fact, ordering more tests could increase the malpractice risk, according to Michael Jones, who argues that doctors could be considered negligent for overtesting. 13 Budetti supports these assertions: “The greatest irony is that defensive medicine may be counterproductive and actually might increase malpractice risk… Unnecessary treatment and invasive procedures… are themselves potentially serious violations of the standard of care and could be the basis of malpractice litigation.” 14 MPS medicolegal adviser Dr Janet Page draws on both these points: she argues that as some tests may be invasive and have their own inherent risks, doctors Box A: To avoid complaints and claims, MPS members said they: Refer more patients for a second opinion Are more careful to ensure that the correct follow-up arrangements are in place Conduct more investigations Changed prescribing habits Kept more detailed records Have a lower threshold for removing patients from practice lists Stopped dealing with certain conditions/performing certain procedures could potentially be criticised for ordering investigations that are not in patients’ best interests (eg, if the risks associated with the procedures outweigh any potential benefit to the patient). So if a doctor refused to order a test that established medical guidelines state is not necessary, could they be sued? Dr Page answers: “A doctor can always be sued, but the claim is very unlikely to succeed if the doctor is acting in accordance with a responsible body of medical opinion (Bolam) and whether those decisions stand up to logical analysis and scrutiny (Bolitho). If a doctor takes the time and trouble to explain to patients the reason for the decision in the first place, it may reduce the chance of the patient bringing a claim.” According to Dr Page, overcautious doctors are unlikely to decrease the rate of negligence claims. Most claims arise not because of substandard care, but because of a failure in communication between the doctor and patient. So, defensive medicine could itself damage the doctor–patient relationship if a patient perceived that a doctor was acting simply to protect their own position, rather than out of a desire to do what was best for the patient. Another element of this is that in countries with a lot of private patients, they may be motivated by money, specifically getting their medical fees reimbursed. This will generate a proportion of claims that are clear “try-ons”; practising defensively is unlikely to impact on these cases, nor deter the patients from pursuing them. 0 20 40 60 80 100 % agreeing HOW TO AVOID PRACTISING DEFENSIVELY Remember the risk of being sued is low The chances of being sued are much lower than you think. If you study the number of clinical consultations and the percentage that result in a claim, it is a low incidence. Doctors should not be paranoid about being sued as this is not evidence-based thinking. If you can justify your decision not to order a test, it can be defended. Rachel Morris, an MPS solicitor, says: “If you are sued you will be asked why you did or did not do something. A defence will not be based on the number of tests you did, but the clinical reasoning behind your actions. “As long as you can look back and justify your decision in accordance with a responsible body of opinion, you are safeguarding your practice. That is why it is so important to keep good notes, so that you will be able to remember the clinical reasoning behind your decisions.” STRATEGIES TO MINIMISE DEFENSIVE MEDICAL PRACTICES ■ Communicate effectively with patients, explaining what you are doing and why ■ Have robust systems for follow-up ■ Be open about risk ■ Offer an appropriate standard of care ■ Only order tests based on a thorough clinical history and examination ■ Discuss difficult cases with colleagues ■ Keep clear and detailed documentation ■ Know what it is you seek to exclude or confirm with a test to determine if it’s necessary ■ Identify learning needs (find good mentor) ■ Undertake courses or independent study.
Be open about error Dr Aidan O’Donnell is a consultant anaesthetist who has practised mostly in the UK, but has recently moved to New Zealand. He says that the departments he works in have enlightened systems, where it is recognised that adverse events will happen, and should be treated as learning opportunities. He said: “Adverse events are collated and presented anonymously at monthly meetings in a blame-free atmosphere – the focus is on improving systems. Both departments contain anaesthetists who are comfortable saying ‘I made a mistake, I got that wrong’.” Be a good doctor Doctors should feel confident enough not to practise defensively if they practise safely with evidence-based medicine, and follow local guidelines and protocols. Dr O’Donnell adds: “I try to establish a therapeutic rapport with my patients, and I’m comfortable with informed consent, eg, ‘I estimate you will have a 5% chance of dying in the one month following your operation’. I usually temper such statements with reassurance: ‘Whatever happens we will do our absolute best to look after you.’ Therefore, if things go wrong as a result of the anaesthetic, I know that I did warn the patient of the risks involved, and have an approach that (I hope) conveys open honesty and sincere regret.” Moving forward Although defensive medicine will always exist in the modern world, over-investigation of “what if” scenarios will never guarantee medicolegal protection in the wake of a claim/complaint, nor improve patient care. As a doctor you cannot always be right and outcomes for patients will not always be the ones you strived for; however, if you can show that you’ve acted and managed your patient appropriately, based on the evidence you had at the time, litigation should not follow. Many doctors describe litigation as a dagger at their back. However, it is good evidence-based practice, not defensive practice, that will deflect the blade. REFERENCES 1 Andrews W, Defensive Medicine: Cautious or Costly? CBS news (22 Oct 2007) 2 Dove J et al, Medical Professional Liability and Health Care System Reform, Journal of the American College of Cardiology (2010) 3 Keren-Paz T, Liability Regimes, Reputation Loss, and Defensive Medicine, Medical Law Review (2010) 4 Hermer L et al, Defensive Medicine, Cost Containment, and Reform, J Gen Intern Med (2010) 5 Studdert D et al, Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment, JAMA (2005) 6 Tellefsen C, Lawyer Phobia, Journal of American Academy of Psychiatry and Law (2009) 7 Kravitz R et al, Omission-Related Malpractice Claims and the Limits of Defensive Medicine, Med Care Res Rev (1997) 8 Kessler DP et al, Do doctors practice defensive medicine? QJ Econ (1996) 9 Savage W et al, British Consultants’ Attitudes to Caesareans, Journal of Obstetrics & Gynaecology (2007) 10 Johnson C, Study: Overtesting in Late-Stage Cancer Patients, eWoss news (12 October 2010) 11 Chawla A, Defensive Medicine, Acad Radiol (2008) 12 Ibid 5 13 Jones M, Medical Negligence, 4th ed: Sweet and Maxwell, London (2008) 14 Budetti PP, Tort Reform and the Patient Safety Movement, JAMA (2005) Once bitten Sally was a 30-year-old single mother with two dependent children. She became concerned about a possible lump in her left breast. In March she attended her local surgery, and saw the practice nurse. Nurse M performed a breast examination but did not find any abnormality and reassured Sally. Over the next few months, Sally noticed changes in her breasts, but felt reassured that nothing was wrong, as Nurse M had said that everything was fine. In June, Sally attended the surgery again and saw Dr F, complaining primarily of persistent back pain. He looked back over Sally’s notes. Dr F was mindful that a few years ago he had been accused of inappropriately touching a patient during an examination. In light of this, and because the notes stated that Sally had recently undergone a breast examination with Nurse M, he relied on her diagnosis and did not repeat the breast examination. Sally was diagnosed with mechanical back pain. In November Sally returned to the practice, with an inverted nipple and skin discolouration. Sally saw Dr F again who performed a breast examination, and found a lump in the same place she had described to Nurse M in March. Dr F referred her for urgent investigation, which confirmed metastatic breast cancer. OUTCOME If the cancer had been discovered earlier, Sally’s prognosis would have been better. Nurse M’s breast examination technique was criticised by the experts involved in the case, as she had not been properly trained to perform such examinations. Dr F was also criticised because he missed an opportunity to make the diagnosis at the consultation in June, when he failed to undertake a breast examination, relying instead on the examination carried out by Nurse M. The claim was settled by MPS, on behalf of the practice, for a large sum. LEARNING POINTS Dr F’s defensive practice put his personal feelings before his professional opinion. A doctor should never allow his personal experiences or concerns to affect his clinical judgment. Dr F should either have conducted the examination in the presence of a chaperone or, if he felt unable to examine Sally, he should have referred her to a colleague. When a patient re-presents with progressive symptoms (in this case, further changes in the breast), particularly after a significant time interval, the doctor should not rely on the earlier assessment but should conduct a further examination. OtnaYdur/Shutterstock.com 11 SPECIAL FEATURE UNITED KINGDOM CASEBOOK | VOLUME 19 | ISSUE 1 | JANUARY 2011 www.mps.org.uk
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Page 5 and 6: EVENT FOCUS: SOUTH AFRICA Doctors o
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Page 9: WHAT IS IT? Defensive medicine is c
Page 13 and 14: There is concern that “too much
Page 15 and 16: Introducing… Membership Governanc
Page 17 and 18: Missed opportunities Daniel Miss R
Page 19 and 20: To operate or not to operate? Mr B,
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Page 23 and 24: A pain in the buttock stefanolunard
Page 25 and 26: see the benefits of careful return
Page 27 and 28: MPS Risk Solutions Knowledge… Exp

Dr Rob Hendry - Medical Protection Society

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