Do Clinical Negligence Claims Encourage Defensive Medicine?

Is it ‘self-evident’ that there is a public interest in avoiding excessive litigation and keeping to a minimum ‘defensive medicine’? Lord Justice Irwin thought so in a 2017 Court of Appeal judgment[1].

His comments were to some extent a case of swimming against the tide because in recent years, what might be called ‘the defensive medicine argument’ has fallen out of judicial favour. Behind the argument lie a number of assumptions – all of them unclear or doubtful. They are:

• Defensive medicine reflects the doctor’s self-interest rather than the patient’s;
• it is bad for patients;
• it leads to unnecessary interventions; and
• Negligence litigation is a trigger.

In a recent paper, Paula Case has looked carefully at 50 years of evidence. It seems clear from her research that what Lord Justice Irwin thought ‘self-evident’ is far from that. In her words it is in fact a ‘jaded cliché'[2].

Back in 1985 Lord Scarman referred to ‘the practice of doctors advising and undertaking treatment which they think is legally safe even though they may believe it is not the best for their patient'[3]. This has always struck me as muddled thinking: far from being ‘legally safe’, recommending treatment which is not in a patient’s interests is more likely to be a breach of duty than recommending treatment that is.

The Supreme Court has in recent years been increasingly sceptical of the defensive medicine argument even if it has still found some favour with the Court of Appeal (as Lord Justice Irwin’s comments demonstrate). One of the reasons is a perceived lack of evidence. If anything, the courts have replaced it with an assumption (itself questionable and certainly lacking in evidence) that litigation enhances standards. For instance, in Montgomery v Lanarkshire, Lords Kerr and Reed suggested that providing better information to patients would improve standards and reduce claims. It would encourage patients to be responsible for their own decisions and be less likely to lead to recrimination. This approach had been adopted in other jurisdictions where ‘healthcare practice presumably adjusted to its requirements’. The use of the word ‘presumably’ highlights the fact that their Lordships did not actually know whether this was the case. It was just as much an assumption as the defensive medicine argument.

There are quite a few ironies here. First, the courts are wrong to reject the argument for a lack of evidence – there is 50 years’ worth of evidence, as Paula Case’s analysis shows. Secondly, they have in some circumstances replaced it with an alternative argument which is lacking in evidence. Thirdly, the Supreme Court does not normally let a lack of evidence get in the way of making decisions on policy grounds.

Although, as indicated above, there is a substantial body of research in relation to defensive medicine, as Paula Case’s paper shows, there are a number of problems with this research and its conclusions are in many respects unreliable.

Her first criticism is one of methodology. These are largely studies by medical professionals and not social scientists and many rely on flawed methodology. For instance:

• Selection bias: many are studies in which participants self-select risk. The studies rely on the doctors most likely to think litigation influences their practice.
• Survey framing: for instance, in one study doctors were more likely to report practicing defensively when asked to take part in a ‘medical malpractice’ survey than in a ‘cost effective care’ survey. How the issue is framed may colour the response given.
• Reliance of self-reporting: which tells us about doctors’ perceptions of defensiveness but not necessarily whether that translates into practice.

Another problem with what she calls disaggregation. They do not tell us to what extent various different factors contribute to defensive practice. Those factors may include the need to manage the demanding patient, fear of complaints and fear the GMC. For many interviewees fear of the GMC was more of a factor than fear of litigation. There is clear evidence that defensive practice exists independently of the fear of litigation.

The studies also do not tell us much about the quality or frequency of making defensive decisions. Are doctors doing this hourly, daily, weekly or monthly? What sort of decisions are they making? Are they just making longer notes, referring patients for investigations or for avoidable procedures? There is a wide potential range of decisions which may fall within defensive practice. Some of likely to be more harmful than others. We know little about what sorts of defensive decisions doctors are making.

They also fail to analyse whether the practice is beneficial or harmful. Some doctors acknowledged that what they regarded as defensive medicine was erring on the side of caution or in some cases a reflection of humility – that an action could reveal something they have missed. Referring a patient for MRI scanning incurs a cost to the health service. But it is unlikely to cause a patient harm and may give rise of a diagnosis which would otherwise not have been made.

So it looks as though after a period where the courts considered arguments about defensive medicine persuasive, they are now thought unconvincing. It is ironic that one of the reasons for their rejection by the courts is a lack of evidence to support them, when in fact there has been quite a lot of supporting evidence during the last 50 years albeit evidence which is largely unreliable. So perhaps the judges have reached the right conclusion via the wrong route.

[1] ABC v St George’s Healthcare NHS Trust [2017] EWCA Civ 336 at [31].

[2] ‘The jaded cliché of “defensive medical practice”: from magically convincing to empirically (un)convincing?’ P.N.2020, 36(2), 49-77

[3] Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871