What is defensive medicine?

Defensive medicine is the deviation from sound medical practice to avoid the threat of malpractice litigation.

According to a 2005 study in JAMA, over 90 percent of physicians surveyed admitted to practicing defensive medicine. This can range from “positive” defensive medicine, like ordering unnecessary tests, referring to consultants, or performing unneeded procedures; to “negative” defensive medicine, like avoiding high-risk patients or procedures.

Why practice defensive medicine?

Physicians practice defensive medicine to avoid malpractice litigation. A malpractice lawsuit is the most scarring ordeal that a physician can undergo, both emotionally and financially. There is an expectation that doctors have to be 100% accurate with their diagnoses. A missed diagnosis, whether it’s a 1 in a 100, or 1 in a million case, makes a physician vulnerable to a malpractice lawsuit. However, medicine by nature is an imperfect science, and the expectation of perfection is not realistic, nor possible. There is no test that is 100 percent accurate – an unfortunate outcome can occur even if a doctor practices textbook medicine. A recent study in the NEJM showed that almost 40 percent of malpractice cases were found to be without medical error.

Due to this uncertainty regarding unfortunate outcomes, physicians err on the side of caution and practice defensive medicine. It is much easier to defend the fact that a doctor ordered a test, as opposed to not ordering the test at all.

What are the downsides to defensive medicine?

Defensive medicine is expensive, has no basis in evidence-based study, and exposes the patient to a host of complications. Contrary to popular opinion, more medicine does not equal better medicine.

If a physician is 99 percent sure of a diagnosis, how much more will a patient be willing to pay for that added 0.5 percent certainty? A CT scan costing hundreds of dollars? An MRI costing thousands? Now, there may be some patients who are willing to spend that money for the most thorough workup possible. However, it is not feasible to routinely spend that kind of money to achieve minimal improvements in diagnostic certainty which may not benefit the patient at all.

Defensive medicine is one of the most important drivers in rising health care costs today. There are few reliable studies to back this up. This is because defensive medicine is impossible to quantify. There is a fine, and largely undefined, line separating thorough care and defensive medicine. What one doctor may interpret as a “being cautious”, another may say is defensive. Because defensive medicine cannot be quantified and is so subjective, its impact on the cost of health care has been minimized and under-publicized.

The practice of ordering extra tests is also bereft of evidence. There are no studies suggesting that ordering PSA screening tests saves lives from prostate cancer, or ordering routine abdominal CT scans saves lives from appendicitis. Is relying on the evidence good enough? The answer is no. The standard of care used in medicine cannot be applied to the courts. Standard of care varies from jury to jury.

Take the case of Daniel Merenstein. Major clinical guidelines, including the American Cancer Society and the American College of Physicians, suggest that the physician discuss the pros and cons of PSA screening tests with the patient. Since there is no evidence that this test saves lives, and may in fact cause damage by leading to unnecessary prostate biopsies, it is recommended that the decision of whether the test is ordered be shared between the doctor and patient. Dr. Merenstein did just that, and documented the discussion appropriately. Unfortunately, the patient later went on to develop late-stage prostate cancer, and sued Dr. Merenstein and the hospital for not ordering the PSA test. Citing the clinical guidelines of the ACS and ACP did not help – the hospital was found to be at fault. Again, it is much easier to defend the fact that a physician ordered the test, as opposed to not ordering the test at all.

Many would think that “the more tests, the better”. Nothing could be further from the truth. Tests themselves have their own risks: ranging from radiation exposure from CT scans to serious complications like bleeding and infection from needle biopsies.

Since no test is 100% accurate, unnecessary testing can lead to “false positives”. This is defined as having a positive test result in the absence of disease. False positives lead to progressively more invasive tests, which may eventually lead to a non-dangerous diagnosis, or even nothing at all. As the tests become more invasive – like a needle biopsy or cardiac catheterization – the complications become more dangerous. Exposing patients to these unnecessary complications, for the sake of avoiding malpractice litigation, is bad medicine.

What can a patient do to help curb defensive medicine?

A patient should understand why a test is being ordered. Ask questions. How necessary is the test? What diagnosis are you looking for? What are the risks of not doing the test? What are the risks of the test itself? Understand that the goal of perfection in medicine is impossible, and that simply ordering more tests is not necessarily better medicine.

How can defensive medicine be reduced?

Obviously a difficult question, since it is a difficult entity to even quantify. The focus of the question is, “What does the physician want to avoid?” The answer of course, is the ordeal of malpractice litigation. Even if physicians do win the majority of malpractice cases that make it to trial, the mere process of a malpractice suit is tremendously scarring. Remember, the vast number of cases are settled, never reaching a jury. And the solution is not simply, “practice better medicine” or “make less mistakes”. Keep in mind that almost 40 percent of malpractice cases do not involve medical error. Unfortunate outcomes despite textbook medicine are a fact of life – that is a hard truth that one has to accept.

Some have suggested that capping malpractice awards, no-fault insurance, arbitration, or health courts as approaches to curb defensive medicine. Although I suspect that these options will help curb defensive medicine, the probability of such sweeping reforms happening in the near future appear minimal.

A simpler way would be to have clinical, evidence-based, guidelines globally applied to malpractice cases. That way, standard of care would be more consistent, and not vary from jury to jury. It will lessen the impact of “hired gun” experts, who can support whatever standard of care is convenient to the lawyers. Doctors can then focus on practicing evidence-based medicine, confident that the standards they are held to in the community, will be the same in the legal world. Only when that confidence is gained, will defensive medicine start to decline.

Related: Is the physical exam dying in American medicine?

Kevin Pho, MD, is a practicing, board-certified internal medicine physician and the founder and editor of KevinMD, which he built from scratch in 2004 to give clinicians and patients a place to be heard. Over two decades, it has become one of the most recognizable physician-led publications in health care, drawing more than 7 million annual page views and over 500,000 followers across social media. He still sees patients in primary care in Nashua, New Hampshire, the practice he says keeps the platform honest.

He is the host of The Podcast by KevinMD, a daily, 15-minute show that has surpassed 2,000 episodes and 2.6 million IAB-certified downloads, featuring physicians, patients, caregivers, founders, and health care leaders in conversation about what they actually see and do. He is also a national media commentator and the coauthor of Establishing, Managing, and Protecting Your Online Reputation: A Social Media Guide for Physicians and Medical Practices.

An acclaimed keynote speaker, Kevin speaks nationwide to clinicians and non-clinicians on health care, digital media, physician leadership, and burnout. His signature keynote, “Connect and be heard: Make a difference in health care with social media,” traces his social media journey since 2004 and inspires audiences to strengthen the doctor-patient relationship, make their voices heard in health reform, and turn the tide against clinician burnout. He is the founder of Physician Speaking by KevinMD, a physician-run speakers bureau, and is available for speaking opportunities.

Kevin earned his medical degree from Boston University School of Medicine and completed his internal medicine residency at Boston University Medical Center. The New York Times called KevinMD “a highly-coveted publishing place for doctors and patients,” and Forbes called it a “must-read health blog.” He is an inductee of the Healthcare Internet Hall of Fame, a recipient of the American Medical Writers Association McGovern Award, and a New Hampshire Magazine Top Doctor.