Amanda Mortensen
Edited by Atreyee (Jiya) Ghosh, Mac Kang, and Jia Lin
“I shall not let any lesser public or professional consideration interfere with my primary commitment to provide the best and most appropriate care available to each of my patients” - Hippocrates [1].
At the start of their careers, physicians across the United States raise their right hand to take the Hippocratic Oath, a ceremonious pledge to practice compassionate, patient-centered medicine. However, complete allegiance to the oath above has become increasingly rare in light of excessive medical malpractice claims. These claims have not only risen in number but increased in average cost by 55% from 2000 to 2018 [2]. Instead, the practice of defensive medicine has taken the healthcare system by storm. Defensive medicine refers to any deviation from standard medical practice as a safeguard against litigation [3]. This inadvertently drives up healthcare costs, damages physician-patient relationships, and negatively impacts patient care.
Defensive medicine exists in two forms: positive and negative. The former refers to the unnecessary ordering of diagnostic tests and treatments. In one study at the University of Washington, 88% of breast pathologists interviewed reported using one or more assurance methods when reviewing a case [4]. They ordered extra stains, obtained second and third reviews, and chose the more severe diagnosis in borderline cases [5]. The negative side of defensive medicine includes avoiding risky but necessary procedures for patients who could benefit from them. While these behaviors stem from a genuine effort to avoid misdiagnosis and subsequent liability claims, they negatively affect both patients and providers.
Surgical specialties are more prone to medical malpractice claims than their non-surgical counterparts. 99% of doctors in high-risk fields such as neurosurgery, cardiothoracic surgery, and obstetrics have faced at least one claim by the time they are 65 [6]. While it is important to note that less than a quarter of claims result in payment to claimants, financial rewards for winning a malpractice case have generally increased in recent years [7]. But these monetary fines are not what scare physicians. Instead, it is the threat of losing a polished professional reputation that took over twelve years of schooling and training to construct.
This was the case in Baxter v. Fulton-DeKalb Hospital Authority (1991). Thomas L. Baxter worked as a paramedic at Grady Memorial Hospital when he responded to an emergency call in 1988. He completed a report on the incident but was reprimanded soon after by his supervisors for a perceived inaccuracy in his writing. Grady Hospital claimed Baxter had failed to state when he started and later abandoned CPR without prior authorization from a physician in his case report [8]. As a result, Baxter was promptly discharged from his employment after allegedly violating major standards outlined in Grady Hospital’s Personnel Policies and Practices Handbook. Baxter appealed his termination and was given a hearing in October 1988. Upon cross-examination of witnesses, multiple expert testimonies, and a thorough review of hospital expectations, the court ruled in Baxter’s favor, saying that Grady Hospital had failed to satisfy its burden of proof and mandated Baxter be reinstated without loss of pay or benefits [9]. Though Baxter was cleared of all wrongdoing, the damage to his reputation had been done. His relationship with other coworkers and hospital administration had been irrevocably damaged, and it is unclear how long Baxter remained at Grady Hospital before seeking a fresh start elsewhere.
As evidenced by Baxter, being acquitted of malpractice claims is not enough; medical professionals are pressured to avoid them altogether. Defensive medicine has thus become the bane of modern-day healthcare; an unfortunate but necessary evil considering the inadequacy of legal protection for physicians. While defensive medicine may be impossible to eliminate entirely, methods such as the continued implementation of tort reforms and strengthening of safe harbor laws are key to decreasing its prevalence and negative impacts on the healthcare system.
Tort reforms are legal changes that limit a plaintiff’s access to the courts [10]. In the context of medical malpractice litigation, this is any procedure that limits a patient’s ability to bring their claim to court. Some of the most common tort reforms include pre-suit filing requirements, caps on damages, and charitable immunity [11]. The purpose of these legalities is to prioritize cases with substantial proof and deter weaker cases from ever proceeding to trial. For example, in Maryland, a three-year statute of limitations bars patients from seeking redress long after a suspected incident has occurred [12]. Clients seeking representation too close to this deadline will struggle to find an attorney; and even if they are lucky enough to find representation, will have limited time to collect witnesses and expert testimony (requirements for most malpractice hearings). Tort reforms are undoubtedly the most effective means of reducing malpractice litigation, but they come with a cost. These barriers make it difficult for patients with moderate claims to obtain adequate compensation for their injuries, ultimately undermining their right to hold healthcare providers accountable for negligent care.
Safe harbor laws are another means of combating defensive medicine. These laws are put in place to protect providers against liability so long as good faith is demonstrated [13]. These provisions aim to shield providers who act with genuine intention from negligence claims. One keystone safe harbor law, established in 1986, is the Health Care Quality Improvement Act (HCQIA). This statute affords healthcare providers immunity from damages if their actions were taken 1) with reasonable belief that they would provide quality healthcare, 2) after a reasonable effort to review all facts in the matter, 3) after adequate hearing procedures, and 4) with reasonable belief that the action was warranted by the facts [14]. It is due to safe harbor laws such as HCQIA and the "benefit of the doubt" they offer that medical professionals prevail in most liability cases. However, these laws do nothing to limit the amount of cases that reach court, and as a result, providers continue practicing defensive medicine as a means of avoiding litigation.
Today, there are numerous initiatives trying to minimize the practice of defensive medicine. The most popular of these is the “Choosing Wisely” initiative, run by the American Board of Internal Medicine. This campaign aims to “spark conversations between clinicians and patients about what tests, treatments, and procedures are needed – and which ones are not” [15]. While these programs have contributed to some progress, they cannot complete the full extent of their missions until the written laws involved in medical malpractice lawsuits are reformed.
To that end, legislators should begin by setting clearer standards for safe harbor protection. Special education and training programs should make healthcare providers aware of these protections, thus encouraging them to focus only on necessary, not excessive, treatments. Moreover, by revising tort reforms to differentiate between economic and non-economic damages, valid claims can be rightfully compensated while frivolous ones are ruled out [16]. Improvements such as these will help curb the practice of defensive medicine and allow campaigns like “Choosing Wisely” to make a greater impact on the healthcare system, mitigating the fear of litigation among professionals while still providing patients avenues to make valid malpractice claims.
[1] “Oath of Modern Hippocrates.” 2024. Penn State College of Medicine Current Students. 2024. Available at: https://students.med.psu.edu/md-students/oath/.
[2] Sekhar, M Sonal, and N Vyas. 2013. “Defensive Medicine: A Bane to Healthcare.” Annals of Medical and Health Sciences Research 3 (2): 295.
[3] See [2], Sekhar, M Sonal, and N Vyas. 2013. “Defensive Medicine: A Bane to Healthcare.” Annals of Medical and Health Sciences Research 3 (2): 295.
[4] Reisch, Lisa M et al. “Medical Malpractice Concerns and Defensive Medicine A Nationwide Survey of Breast Pathologists.” American journal of clinical pathology 144.6 (2015): 916–922. https://pubmed.ncbi.nlm.nih.gov/26572999/
[5] See [4], Reisch, Lisa M et al. “Medical Malpractice Concerns and Defensive Medicine A Nationwide Survey of Breast Pathologists.” American journal of clinical pathology 144.6 (2015): 916–922. Available at: https://pubmed.ncbi.nlm.nih.gov/26572999/
[6] Clark, John R. "Defensive medicine." Air Medical Journal 34, no. 6 (2015): 314-316
[7] Medical Malpractice Claims Trends - News - Tools & Intel | CRC Group, Available at: https://www.crcgroup.com/Tools-Intel/post/medical-malpractice-claims-trends (last visited Oct 27, 2024).
[8] “Baxter v. Fulton-DeKalb Hosp. Authority, 764 F. Supp. 1510 (N.D. Ga. 1991).” 2018. Justia Law. 2018. Available at: https://law.justia.com/cases/federal/district-courts/FSupp/764/1510/2287374/
[9] See [8], “Baxter v. Fulton-DeKalb Hosp. Authority, 764 F. Supp. 1510 (N.D. Ga. 1991).” 2018. Justia Law. 2018. Available at: https://law.justia.com/cases/federal/district-courts/FSupp/764/1510/2287374/
[10] Hyman, David, and Charles Silver. 2006. “Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid.” Vanderbilt Law Review 59 (4): 1085. Available at: https://scholarship.law.vanderbilt.edu/vlr/vol59/iss4/4/.
[11] See [10], Hyman, David, and Charles Silver. 2006. “Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid.” Vanderbilt Law Review 59 (4): 1085. Available at: https://scholarship.law.vanderbilt.edu/vlr/vol59/iss4/4/.
[12] “Torts Have Been Reformed - What about the Healthcare System? - MAJ Recent News.” n.d. Available at: www.mdforjustice.com.https://www.mdforjustice.com/?pg=MAJRecentNews&blAction=showEntry&blogEntry=100811.
[13] Reyes, Carlo MD; Fusaro, Angela M. MD. At Your Defense: Safe Harbor Law Could Help Defend Malpractice Claims. Emergency Medicine News 36(8):p 13, August 2014. | DOI: 10.1097/01.EEM.0000453167.70028.e4
[14] Pope, Thaddeus, "Physicians and Safe Harbor Legal Immunity" (2012). Faculty Scholarship. Paper 390. Available at: https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1391&context=facsch
[15] Choosing Wisely, https://www.choosingwisely.org/ Last visited October 22, 2024.
[16] Danzon, Patricia M. “Tort Reform: The Case of Medical Malpractice.” Oxford Review of Economic Policy 10, no. 1 (1994): 84–98. Available at: http://www.jstor.org/stable/23606301