PI Brief Update

Clinical Negligence Claims and the Myth of Defensive Medicine - Paul Sankey, Enable Law

21/10/20. Do claims for damages risk encouraging defensive medicine? Lord Justice Irwin thought so and described it as 'self-evident' in a 2017 Court of Appeal judgment[1]. In fact, he had probably fallen victim to a myth. A recent paper by Paula Case, who has looked at 50 years of research on the subject, has exposed a lack of rigour in the evidence supporting what we may call the defensive medicine argument.

Lurking behind the claim are a number of assumptions – all of them needing a closer look. They are that:

· doctors are when considering patient management at times inclined to safeguard their own interests rather their patients' and act 'defensively';

· defensive medicine is bad for patients;

· it leads to unnecessary interventions; and

· it is motivated by fear of litigation.

Lord Scarman referred in 1985 to doctors 'advising and undertaking treatment which they think is legally safe even though they may believe it is not the best for their patient'[2]. This is odd. Why would doctors consider it 'legally safe' to do something contrary to their patients' interests? One would have thought this was itself a short cut to litigation rather than a way to avoid it.

Fortunately, the Supreme Court has become sceptical of the defensive medicine argument even if the Court of Appeal is more easily persuaded. One of the reasons is a lack of evidence in its favour. In fact there are a number of ironies here. First, far from there being a lack of evidence there is quite a lot – although it is generally flawed (as Paula Case has shown). Secondly, the Supreme Court is quite prepared at times to make judgments on policy grounds without requiring evidence. Thirdly, it has suggested an alternative argument which itself lacks evidence – that litigation drives improvements which reduce the risk of claims[3].

Although there has been quite a lot of evidence about the practice of defensive medicine much of it is flawed. The first flaw is one of methodology. Studies tend to rely on doctors volunteering to take part in research and there is a selection bias here – those providing the evidence are the doctors most likely to consider defensive medicine an issue. Then there is a problem with survey framing: in other words how the study is framed can shape the results. In one piece of research doctors were more likely to report practicing defensively when asked to take part in a study of 'medical malpractice' than one of 'cost effective care'. Another flaw is a reliance on self-reporting. Subjects reporting how they behave relay their perceptions of behaviour, which may differ from their actual behaviour.

Another significant shortcoming concerns 'disaggregation'. This is a failure to distinguish between different factors that may encourage defensive practice. Those factors include the need to manage demanding patients, worry about complaints and fear of the GMC as well as any fear of litigation. There is clear evidence that fear of litigation is not the only factor behind defensive practice. And it may not even be a major one.

The studies also do not generally distinguish between different types of defensive decision or tell us how significant those decisions are. Defensive practice could for instance comprise more extensive note-taking, referring people for investigations or carrying out intrusive procedures. These practices vary in significance in terms of cost, risk to the patient and potential benefit. They do not tell us whether these practices are frequent or rare. They also do not tell us whether it is good or bad for patients. It is possible, for instance, that increased caution before ruling a diagnosis in or out may be good for patients, reducing harmful mistakes. Medicine practiced with a view to avoiding complaints or litigation could in fact benefit patients.

So much of the evidence about what defensive medicine (assuming it exists) actually looks like, whether it is a good or a bad thing and to what extent clinical negligence claims are a cause is weak. It certainly should not be taken as self-evident, as Lord Justice Irwin thought.

If doctors are inclined at times to practice defensively, there are probably other reasons than fear of litigation at work. My suspicion is that the need to manage demanding patients and fear of criticism in a world of work which has not yet engrained a 'no blame' culture are more significant factors. In any event it is a good thing if the defensive medicine argument has now fallen out of favour.

Paul Sankey is a partner at Enable Lawspecialising in clinical negligence claims on behalf of patients. https://www.enablelaw.com/team/paul-sankey/