Despite advancements in modern medicine, diagnostic errors and procedural complications
remain inherent challenges in clinical practice. When unforeseen medical complications and
medical errors occur, physicians are held accountable for their outcomes. Consequently, medical
malpractice lawsuits may arise—imposing significant financial burdens, consuming time, and
potentially damaging the professional reputation of doctors in the United States. To avoid these
stresses of litigation, many physicians have turned to the detrimental practice of defensive
medicine [1].
Defensive medicine occurs when healthcare providers prioritize protecting themselves from
potential litigation over making decisions based solely on the patient’s benefit or medical
indications. This phenomenon manifests in several forms. The primary avenue—positive
defensive medicine—involves an “overtreatment by providers to prevent potential legal
disputes” [2]. For example, a physician may request extensive specialist consultations, order
otherwise unnecessary labs, or perform excessive imaging [3]. But how prevalent and damaging
is positive defensive medicine?
A Pennsylvania survey found that a staggering 93% of physicians in “high risk specialties for
litigation” (emergency medicine, general surgery, orthopedic surgery, neurosurgery,
obstetrics/gynecology, and radiology) admitted to practicing some form of defensive medicine in
their careers [4]. According to a Harvard University public health study, positive defensive
medicine-related costs totaled $55.6 billion per year [5], further straining hospitals and labs by
exacerbating superfluous resource utilization [6]. These practices raise the barrier for patients to
receive equitable and quality healthcare, driving up overall healthcare costs for patients. Yet, the
most deleterious consequences of positive defensive medicine lie in the ethical implications of
overtreatment and undertreatment.
The practice of defensive medicine runs counter to the Hippocratic Oath, the fundamental code
of ethics all physicians ascribe to with a deontological guiding principle to “do no harm” [7]. The
active practice of defensive medicine can violate this oath in several manners. First, positive
defensive medicine can bring medical harm onto a patient. For example, a patient subjected to
unnecessary radiological imaging is exposed to “the risks of radiation and possibly anaphylactic
reactions to contrast dye” [8]. Moreover, excessive CT scans ordered by physicians hoping to
protect themselves from litigation can increase future cancer risk in frequently-imaged
anatomical regions like the abdomen and pelvis [8]. While side effects of medical interventions
have long been an accepted and anticipated reality, the practice of positive defensive medicine
can unethically heighten patients' risk for adverse side effects and even exacerbate their
potentially compromised health status.
When faced with a deep-rooted, systemic challenge like positive defensive medicine, it can be
tempting to turn to traditional tort reform—a legal approach aimed at limiting medical
malpractice litigation and reducing liability—as a potential solution. Some have proposed a
restructuring of medical malpractice law, but traditional tort reform has been shown to
inadequately ameliorate defensive medicine’s impact on the overall quality of care [9]. Rather
than attempt to combat the symptoms of positive defensive medicine with sweeping tort reform,
the focus should be placed on addressing the underlying causes of this disease, specifically
through a two-fold approach to mitigate litigation stresses on physicians.
The first element of this approach requires a systemic improvement of meaningful
physician-patient interactions. In the current U.S. healthcare model, priority is placed on the
quantity of patients seen rather than the quality of these encounters, leading to rushed and
incomplete medical visits. This results in excessive physician testing becoming a default safe
treatment option, which could be avoided with a more comprehensive consideration of a patient’s
clinical and psychosocial history. Moreover, longer quality medical visits can enhance
physicians’ ability to properly educate their patients of the pathology of their condition, potential
treatments options, and anticipated adverse side effects of treatment. This greater emphasis on
informed consent builds trust in the physician-patient relationship, decreasing the likelihood of
litigation that arises from misinformation or unmet unrealistic patient expectations.
Another key player in litigation stress is the recently inflammatory media coverage of medical
malpractice accusations. The explosion of sensationalized media coverage has led to a culture of
“trial by media” prior to a trial. This outrage-fueled news coverage can often severely damage a
physician's reputation even when they are later legally determined to be innocent. Trial by media
spawns public distrust in the medical system and encourages visceral patient responses to
adverse outcomes, energized by emotion and mob mentality rather than medical and legal
expertise. By promoting more nuanced reporting on medical errors and malpractice litigation, the
media can help contextualize these issues within the broader healthcare landscape. Furthermore,
these changes encourage constructive dialogue on improving patient safety and healthcare
quality rather than accelerating public assumptions that any adverse medical outcome is evidence
of physician negligence.
While these proposed reforms of healthcare structure and media coverage are certainly much
easier said than done, they are necessary steps towards addressing the pervasive culture of
defensive medicine. Reactive solutions to defensive medicine such as tort reform and hospitals’
one-dimensional financial support for physicians in the form of malpractice insurance fail to
effectively address the deeply rooted culture of defensive medicine. Improving doctor-patient
interactions and reducing sensationalized media coverage can foster trust and alleviate
physicians’ fear of litigation, reducing perceived necessity for defensive medicine practices.
References:
1. Shenoy, A., Shenoy, G. N., & Shenoy, G. G. (2022). Patient safety assurance in the age of
defensive medicine: a review. Patient safety in surgery, 16(1), 10.
https://doi.org/10.1186/s13037-022-00319-8
2. Arafa, A., Negida, A., Elsheikh, M. et al. Defensive medicine practices as a result of
malpractice claims and workplace physical violence: a cross-sectional study from Egypt.
Sci Rep 13, 22371 (2023). https://doi.org/10.1038/s41598-023-47720-6
3. Doğan, A., İncealtın, O., Oğuz, A. (2023). Effect of Defensive Medicine on Clinical
Practices of Emergency Medicine Physicians. Global Emergency And Critical Care, 2(3),
117-121. doi:10.4274/globecc.galenos.2023.63835.
4. Studdert DM, Mello MM, Sage WM, et al. Defensive Medicine Among High-Risk
Specialist Physicians in a Volatile Malpractice Environment. JAMA.
2005;293(21):2609–2617. doi:10.1001/jama.293.21.2609
5. Mello, Michelle M., Amitabh Chandra, Atul A. Gawande, and David M. Studdert.
"National Costs Of The Medical Liability System." Health Affairs 29.9 (September
2010): 1569-1577.
6. Shenoy, A., Shenoy, G.N. & Shenoy, G.G. Patient safety assurance in the age of
defensive medicine: a review. Patient Saf Surg 16, 10 (2022).
https://doi.org/10.1186/s13037-022-00319-8
7. Association of American Physicians and Surgeons. (n.d.). Various physicians' oaths.
https://www.aapsonline.org/ethics/oaths.htm#lasagna)
8. Sethi MK. Defensive Medicine: "Glowing" with Pain. PSNet [internet]. Rockville (MD):
Agency for Healthcare Research and Quality, US Department of Health and Human
Services. 2010.
9. Agarwal, R., Gupta, A., & Gupta, S. (2019). The impact of tort reform on defensive
medicine, quality of care, and physician supply: A systematic review. Health services
research, 54(4), 851–859. https://doi.org/10.1111/1475-6773.13157