THERE are certain bars and restaurants around the law courts of Charleston, South Carolina, that local surgeon Chris Hawk would be ill-advised to enter. Among lawyers, his name is mud.
That鈥檚 because at the South Carolina Medical Association鈥檚 annual get-together this year Hawk proposed a motion that doctors should be able to refuse to treat lawyers 鈥� and their spouses. The motion was defeated, but not before it provoked outrage among the legal sector. 鈥淭here was quite a bit of hate mail,鈥� he says. 鈥淚 was called a disgrace to my profession.鈥�
Hawk was motivated by the soaring number of lawsuits claiming damages for negligence by doctors 鈥� and the telephone-number payouts that courts are awarding. Medical litigation has become a huge drain on healthcare budgets, and while the problem is most extreme in the US, other countries such as the UK and Australia are following this lead.
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But the litigation is also prompting a subtle and insidious change in the way that medicine is practised, which affects anyone who consults a health professional, even if they would not dream of setting foot in a lawyer鈥檚 office. It is known as 鈥渄efensive medicine鈥�. Doctors are ordering tests, prescribing drugs or even carrying out surgery, not because it is necessary, but to avoid being sued if the patient fails to make a full recovery. The more medical interventions a patient gets, the better a doctor generally looks in court. Such acts range from unwarranted X-rays to pointless antibiotics and unnecessary Caesareans.
The paradox is that defensive medicine can be worse for the patient鈥檚 health, not better. The extra treatments and investigations may be done with the aim of eliminating the small risk of the patient suffering harm. But they can expose the patient to significant risk of lesser harm, such as stomach upsets from antibiotics, or complications from Caesareans.
While defensive medicine in the US has long been known about, in the past few years evidence has emerged that reveals the breadth and scale of this practice in other countries, such as the UK. But the solution is unclear. Recent attempts by some countries to hold back the rising tide of medical litigation may be too little too late. 鈥淲e are facing a public health crisis,鈥� says Hawk.
It hasn鈥檛 always been this way. A generation or two ago, doctors were godlike authority figures whose decisions were seldom questioned by patients and whose mistakes were often covered up by colleagues. Such attitudes are rarer now. Most see that as positive change, but along with the growing tendency among all consumers to seek redress when something goes wrong, it has led more patients to seek their day in court.
Many of these damages claims are baseless, doctors insist. No medical procedure is risk-free, and just because a patient suffers harm, it does not necessarily mean someone was at fault. Medicine is often a matter of judgement, and getting it wrong may be just bad luck, not incompetence or recklessness. Juries, however, tend not to see it that way. Faced with a plaintiff who is disabled or chronically sick, they have a history of awarding eye-wateringly large payouts, out of all proportion to the doctor鈥檚 error.
鈥淲e need to fix what is a very broken civil justice system鈥�
Nowhere is this more apparent than in the US, where the figures for medical malpractice awards and associated legal costs are soaring (see Chart). In 2002 they amounted to $24 billion, 1.6 per cent of the country鈥檚 entire spending on healthcare. In the UK the corresponding figure for 2003 was a more modest 拢450 million, but that too is many times the 拢53 million such cases cost in 1990. Australia has seen a doubling of claim numbers and a tripling of payouts in 10 years.
In an attempt to curb this trend, 18 US states have introduced legal measures to clamp down on frivolous suits and limit payouts. But even in California, where such 鈥渢ort reform鈥� has been greatest, medical litigation costs are still climbing, albeit more slowly than in some other states. Lawyers鈥� groups in many states, including South Carolina, are mounting vigorous opposition to tort reform, a fact that provoked Hawk to submit his motion. 鈥淲e need to fix what is a very broken civil justice system,鈥� he says.
The prospect of defending their actions in a courtroom can weigh heavily on physicians. 鈥淚 don鈥檛 think there鈥檚 a doctor in America who goes through a day without wondering if this is the patient who鈥檚 going to sue,鈥� says Richard Anderson, of The Doctors Company, a Californian firm that insures doctors against malpractice suits. That is what drives the growth of defensive medicine, he says. 鈥淭he standard of care has shifted from what is medically indicated to what is legally required.鈥�
One of the most obvious results of defensive medicine is the waste of time and money for all involved. In state-funded health systems with limited budgets, such as the UK鈥檚 National Health Service, every unnecessary procedure performed is one less necessary one that cannot be.
There are direct consequences for patients too. The rising rate of Caesarean sections in many western countries may be the most commonly cited example of defensive medicine. In the UK the rate was up from 12 per cent in 1990 to 22 per cent in 2001. A Caesarean avoids the risk of the baby suffering harm such as brain damage from a difficult or prolonged birth. But the operation carries risks for the mother: she may need blood transfusions or her wound may become infected. Other factors are undoubtedly contributing to the rising rate of Caesareans, and it is hard to say how big a factor defensive medicine is. But in a survey of 785 British obstetricians, two-thirds said fear of litigation was one of the main reasons for the trend. The survey, which was carried out by researchers at the University of Cambridge, is awaiting publication. 鈥淭he pressure was to err on the side of caution,鈥� the researchers recently told a panel of British MPs conducting an inquiry into maternity services.
Another example was revealed by a study of the treatment of tick bites in the east of Maryland in the US. A bacterium called Borrelia burgdorferi that can be transmitted to humans by deer ticks can lead to a complex syndrome known as Lyme disease, which includes arthritis-like symptoms due to inflammation of the joints. Patients can be tested for antibodies to the bug, but these may not be detectable until several weeks after infection, and anyway cannot distinguish between a current and an old infection. Fortunately for the 1 or 2 per cent of tick-bite victims who get infected, a simple course of antibiotics will clear it up. Specialists recommend not giving antibiotics to everyone who gets bitten, however, because that may simply delay the onset of the disease and obscure the diagnosis by masking symptoms. Far better to wait and see if symptoms develop, then treat if needed.
But according to a 1998 study by researchers at the University of Maryland in Baltimore, two-thirds of patients who see a doctor after a tick bite are given a blood test for antibodies to B. burgdorferi, and more than half were given antibiotics. In short the patients were receiving a test that revealed nothing useful, and a treatment that could be harmful.
Neither the research paper, which appeared in The Journal of the American Medical Association, nor an accompanying editorial used the phrase 鈥渄efensive medicine鈥�. At the time they just weren鈥檛 thinking in those terms, says Tom Strickland, one of the researchers. But that鈥檚 exactly what they were looking at, he now says. The doctors feared being sued if their patients developed some kind of chronic illness, whether or not it was Lyme disease. 鈥淭hey do not use the term 鈥榙efensive medicine鈥� but they certainly practise it,鈥� Strickland says.
鈥淧sychiatrists fear being sued if a patient kills themselves 鈥� or someone else鈥�
There seem to be few medical specialties where defensive practice does not go on. Psychiatrists fear being sued if a disturbed patient kills themselves, or someone else 鈥� even if the act could not have been foreseen. In one survey of 98 UK hospital psychiatrists published in 2002, three-quarters admitted practising defensively during the previous month. Their actions ranged from placing patients on a higher level of observation than was warranted to admitting people to hospital unnecessarily (Postgraduate Medical Journal, vol 78, p 671). Who would want a stay on a psychiatric ward unless it was absolutely essential?
So just how big a problem is defensive medicine? One measure that has been used in the US is to compare medical practice in the states that have tort reform laws with those that do not. A study by economists at Stanford University in California examined the cost of treating heart ailments in elderly people. In areas without tort reform, costs were 5 to 9 per cent higher, but rates of death and disability from these conditions appeared no different. Doctors in states without tort reform were ordering tests, investigations and treatments that were simply unnecessary, the authors concluded.
Could the problem be on a similar scale in the UK? Not everyone is convinced. 鈥淥ne man鈥檚 defensive medicine is another man鈥檚 good medicine,鈥� says Michael Saunders of the Medical Defence Union, which provides professional indemnity for healthcare workers. 鈥淚 don鈥檛 think it鈥檚 widespread.鈥�
But this view is refuted by research published in 2000 by Nicholas Summerton, a GP and researcher at the University of Hull, in one of the few published attempts to investigate defensive medicine in the UK. Out of 339 GPs who completed his questionnaire, nearly all said they had made, or were planning to make, changes in their practice following a patient鈥檚 complaint (British Journal of General Practice, vol 50, p 565). Some would have been changes for the better, Summerton points out. But two-fifths had prescribed unnecessary medicines.
Danger money
The first hard evidence that defensive medicine goes on in British hospitals comes from a study by economists at the University of Nottingham, which has not yet been published. In the early 1990s, a new malpractice insurance system for hospital doctors was introduced in the UK, run by the NHS Litigation Authority. From 1995, each hospital had to pick a sum of money below which they would bear the cost of litigation themselves rather than it being paid by the NHSLA 鈥� the lower their 鈥渆xcess鈥� level, the more they had to pay the NHSLA in annual fees. In an attempt to assess whether exposure to big claims makes doctors more defensive, the researchers surveyed the way different hospitals made use of tests such as magnetic resonance imaging and CT scans.
The researchers found that the higher a hospital鈥檚 potential liability, the more tests it carried out. An institution with an excess of 拢100,000 used, on average, 50 per cent more CT scans than one whose liability was limited to 拢50,000. Yet the number of patients readmitted to hospitals in the seven-year period studied did not seem related to the number of tests. 鈥淭he fact that these additional tests did not apparently translate into a lower readmission rate indicates that they really were being used defensively,鈥� says Paul Fenn, who led the Nottingham team.
The increasing sums being exacted by medical litigation are leading to rocketing insurance premiums for doctors. In the US, there are indications that doctors are becoming reluctant to work in risky specialties like obstetrics and neurosurgery, where a minor error can leave patients disabled and requiring expensive care for life. A survey published in July by the American College of Obstetricians and Gynecologists found that 1 in 7 of its fellows has stopped practising obstetrics because of the fear of malpractice suits. The college says there are 23 states where in some areas there are not enough doctors to provide safe maternity services.
So should we be trying to tackle the rise of medical litigation? Some say any system that relies on courts to establish the rights and wrongs of a case is bound to be slow and expensive. One alternative is some kind of no-fault compensation scheme in which people who suffer harm get cash automatically, irrespective of who, if anyone, is to blame. The size of the award can be fixed according to the nature of the injury. Such schemes are normally run by state agencies 鈥� the UK Criminal Injuries Compensation Board is one example of a no-fault scheme for victims of general crime.
Some Scandinavian nations including Sweden, Denmark and Norway already operate no-fault compensation schemes for medical injuries, and pay patients modest sums irrespective of whether a particular individual or institution can be found to blame. These schemes are generally seen to work well, perhaps because the generous state welfare systems in these countries already take good care of people who are sick and injured.
In the UK, the government has been wrestling with the problem of increasing medical litigation for several years, not least because of its cost to the NHS. In June 2003, the chief medical officer for England, Liam Donaldson, published a report entitled Making Amends that suggested introducing a limited no-fault compensation scheme, for babies who are brain damaged at birth. He rejected the idea of a more general compensation scheme on the grounds that it would encourage people to file complaints. However, the report also recommends a raft of improvements in how complaints are dealt with, one aim of which is to reduce the number of people who need to seek redress in court. They include a full and open investigation of what has gone wrong, a package of remedial care and treatment provided free by the NHS, and payments to compensate for pain and suffering. Ministers are still deciding whether to implement Donaldson鈥檚 recommendations, however.
The Australian government has recently moved to subsidise doctors鈥� insurance premiums, partly in order to stem the haemorrhage of staff from high-risk specialties. It says it would like to see individual states and territories introduce tort reforms.
The New York-based lobby group Common Good, which was set up in 2002 to fight what it sees as excessive litigation, suggests abolishing juries for medical negligence trials. 鈥淥ne jury might make a huge award in a particular case, and another in a similar case might make no award at all,鈥� says its chairman, Philip Good. The group advocates the creation of specialist courts overseen by judges with medical training, which would determine damages according to a fixed schedule. Common Good is working with experts at Harvard School of Public Health to draw up such a schedule. On the basis of an opinion poll it commissioned, the group claims that 6 out of 10 Americans approve of its ideas, along with many politicians and doctors. Only the trial lawyers, it says, are unenthusiastic.
While lobby groups continue their campaigning and governments wring their hands, doctors like Chris Hawk are taking matters into their own hands. Since his provocative motion at the medical conference, a few of his colleagues have admitted they are already putting it into practice, and refusing to treat lawyers. Hawk says his goal was not to deny care to members of the legal profession, but to encourage them to support efforts to fix the system. 鈥淩ight now the problem is that they are very happy with the system,鈥� he says. 鈥淭hey are the only beneficiaries of it.鈥�