The Toxic Environment that Breeds Defensive Medicine by Dr Wong Chiang Yin

                  The Straits Times Friday April 12, 2019

 

         Defensive medicine raises costs and corrodes the central doctor-patient relationship. Studies show doctors resort to this when the operating environment gets uncertain and excessively punitive

 

The issue of defensive medicine has come into the public spotlight following several incidents of doctors being excessively penalised for their practices.

This has led Health Minister Gan Kim Yong to acknowledge in Parliament on April 1 that certain recent "concerns, if unresolved, will, overtime, engender the practice of defensive medicine".

He added: "This will not only affect doctors, but ultimately compromise the quality of medical care, raising medical costs and harming patient welfare."

Earlier, the Ministry of Health (MOH) had issued a press statement on Feb 20 on asking the Singapore Medical Council (SMC) to file an appeal against the disciplinary tribunal's decision on a complaint against Dr Lim Lian Arn. It stated: "MOH is of the view that this decision should be reviewed. We are concerned that this case should not be viewed as or lead to the practice of defensive medicine, which would have an adverse impact on patient and clinical safety."

It is clear from both the press statement and the minister's statement that the Government considers defensive medicine undesirable - and rightly so.

But what is defensive medicine?

Probably the most commonly used and well-known definition of defensive medicine was given by the United States Congress' Office of Technology Assessment (OTA). It published a landmark report in 1994 titled Defensive Medicine And Medical Malpractice that said: "Defensive medicine occurs when doctors order tests, procedures or visits, or avoid high-risk patients or procedures, primarily (but not necessarily solely) to reduce their exposure to malpractice liability."

 

TWO TYPES OF DEFENSIVE MEDICINE

Since then, medical ethics experts have further classified defensive medicine into "assurance" and "avoidance" defensive medicine.

Assurance defensive medicine practices are often grouped into several categories: ordering more tests than medically indicated; prescribing more medications than medically indicated; referring patients to other specialists in unnecessary circumstances; and suggesting invasive procedures (for example, biopsies) to confirm diagnoses.

Categories of avoidance practices are: avoiding certain procedures or interventions or avoiding caring for high-risk patients.

Defensive medicine is particularly prevalent in high-risk specialities. In a study conducted in Hiroshima, Japan, in 2006 involving gastroenterologists, 98 per cent of respondents claimed to practise some defensive medicine, 96 per cent of respondents practised some form of avoidance defensive medicine, while 91 per cent practised assurance defensive medicine.

In another study published in 2005, involving 824 physicians from six high-risk specialities in Pennsylvania in the US, 93 per cent reported practising defensive medicine.

It is noteworthy that OTA's definition of defensive medicine includes only changes in the utilisation rate of medical services. It does not include changes in practice styles, such as spending more time with a patient, or better documentation.

 

ERODING TRUST

To understand why defensive medicine is bad, we have to go back to what underpins medical practice - the doctor-patient relationship.

Like most good relationships there is an element trust. Like many relationships, it is an unequal one. The doctor is in a far more powerful position than the patient, primarily because he has more information and knowledge about what is happening than the patient. We call this information asymmetry.

It is because of this unequal relationship that doctors need a code of ethics and display professionalism so that patients' interests are safeguarded.

Most people who apply to get into medical school do so because they want to do good as a doctor. This is the fundamental ethical principle of benevolence. Along the way doctors learn the fundamental ethical principle of non-maleficence (do no harm). This is because almost every therapeutic option and many investigative options a doctor has are double-edged and have the potential to do harm (such as via side effects).

It is a truism in modern medicine that if we do not want to run the risk of potential harm, we are probably not doing much good either. As doctors, we weigh the benefits, risks of investigative and therapeutic options, and make decisions, often under limitations of time and resources. Every encounter a doctor has with a patient in a clinical setting is replete with such challenges.

Over time doctors learn to balance the demands of non-maleficence and benevolence.

Benevolence and non-maleficence are the main driving forces behind the behaviour of a doctor. As such, most of us do not expect our patients to sue us when we do our best.

In defensive medicine, the doctor-patient relationship based on benevolence and trust is supplanted by a doctor-potential plaintiff relationship (or rather stance). This new doctor-potential plaintiff stance now defines the doctor's behaviour. It is primarily driven by the doctor's perspective that the patient is a potential plaintiff and he now behaves and decides in a way that is driven not by his primary desire to do good, but by his primary desire to avoid being sued. Defensive medicine invariably raises costs of medicine to individuals, insurers and the healthcare system. More than just dollars and cents, it has a pernicious effect on the entire healthcare milieu that is often unquantifiable but devastating.

Can a patient trust his doctor in any encounter if the patient thinks he doctor's decisions and actions are not driven mainly by the doctor's desire to do his best for the patient but instead by his overriding concern to avoid being sued by the patient? A doctor-potential plaintiff stance is a completely ruinous basis to start any meaningful and positive doctor-patient interaction, let alone a relationship.

The mutation of the doctor-patient relationship to that of a doctor-potential plaintiff stance at first instance seems to arise from a unilateral decision on the part of the doctor. After all, most patients still see their doctors as primarily professionals driven by benevolence. Many of them are none the wiser when they are subjected to more tests and procedures and referred to other specialists. In fact, the converse maybe true - that many patients may perceive these defensive medicine doctors to be extra caring and attentive to their medical condition and needs.

 

DOCTORS' OPERATING ENVIRONMENT

However, the environment in which doctors operate plays a role in influencing behaviour. Various studies have shown that doctors switch to practising defensive medicine when certain conditions are present, such as:

 

Findings that highlight the circumstances which spur the practise of defensive medicine are not exactly new, and have been discussed and highlighted as early as in the 80s and 90s, including the 1994 report by OTA.

That report came out of an operating environment for doctors in the US that was becoming toxic and resulted in a rapid increase in medical practice claims in the 1970s and 1980s. This predictably jacked up malpractice premiums.

One estimate in a textbook by writers Kant Patel and Mark E. Rushefsky stated that "average annual malpractice premiums for all physicians increased from $6,900 in 1983 to $14,500 in 1990", a more than two-fold increase.

As increases in cost of premiums and frequency of claims against doctors will eventually be passed down to society, to be borne by taxpayers and patients, it was no surprise that the climate of rising defensive medicine sparked public concern, resulting in the OTA study.

In the US at that time, those findings reveal and reflect the medical profession's reflex response (which is to practise defensive medicine) to the imposition of severe penalties in a deeply uncertain environment.

Singapore today is of course not in the same state as the US at that time. Nevertheless, the ministerial statement by Mr Gan recognises the current situation in Singapore. As it states, "there is wide variance in interpreting standards of care" despite guidance in SMC's Ethical Code and Ethical Guidelines. This reflects how standards of care imposed in disciplinary proceedings and demanded by the disciplinary system are not clear to the medical profession.

The statement also highlighted "there is the issue of consistency and fairness of sentences meted out". It added that some sentences are "not commensurate with the circumstances of the case". As aforesaid, perceived unjustified severe punishments are often a precursor to defensive medicine.

The statement goes further to warn: "In the current climate of uncertainty, there is a real risk that medical practitioners will adopt defensive medicine. There is evidence that this is already happening."

The various initiatives described in the ministerial statement could thus be seen as MOH trying to proactively nip defensive medicine in the bud in Singapore. Going forward, parties that sit in judgment in disciplinary and legal proceedings should take care not to inadvertently introduce more uncertainty into the medico-legal system or impose very severe penalties except in the most defined and justified of circumstances.

Otherwise, doctors, being human, have a "fear and flight" response. Defensive medicine is but the medical profession's distillation of the "fear and flight" response that has been hardwired into the human condition. Often in such situations, I would add that in addition to fear and flight, there is also a third element of deep frustration.

Ultimately, we must return to where we started - the doctor-patient relationship. Trust is a two-way street in any healthy relationship and all stakeholders, patients, doctors, government and disciplinary bodies must act to protect and nurture the element of trust.

Trust is built upon positive past experiences and an ambient and adequate level of certainty. Trust is needed not just between the patient and the doctor, but between the doctor and the disciplinary system as well.

The roots of defensive medicine can always be found in distrust and cynicism. If doctors do not trust their patients and therefore see them as potential plaintiffs, or if they have no confidence in the "consistency and fairness" of the disciplinary system, then the likely sequela is defensive medicine.

 

Dr Wong Chiang Yin, a public health physician in the private sector, is a former president of the Singapore Medical Association. He is now an elected council member of the SMA and Academy of Medicine Singapore.