Offensive disclosure and defensive medicine: What you need to know
Transparency, building patients’ trust can reduce your liability, malpractice lawsuit risk
With the start of the NFL season now upon us, this piece will focus on offense and defense. Offensive disclosure of medical error and the practice of defensive medicine, that is.
The literature is rife with information and data, sometimes conflicting, as to whether disclosure and defensive medicine are beneficial to reducing liability and the chances of a lawsuit. One reason for this conflicting data is that the health care system as a whole is in the midst of a massive change, going from an authoritative physician model to one in which patients are increasingly engaged in their own medical care and treatment decisions.
The offense: Transparency in care
Transparency in health care has gained and continues to gain popularity as studies tend to show that including patients in decision-making and discussions about outcomes leads to reports of better patient experiences (BMJ Qual Saf [epub ahead of print], May 18, 2016).
Transparency includes discussing not only the good, but also the bad. A recent study assessing a collaborative model for medical error disclosure showed that physicians were interested in learning how to best communicate with patients after harmful events and that patients realized and appreciated the emotional impact that a medical error has on a physician (BMJ Qual Saf 2016; 25:615-25).
This is important information from a legal perspective because, anecdotally, I have been involved in defending lawsuits where the suit was brought primarily because either the physician did not apologize or otherwise face the error that was made, or, the manner in which the physician apologized or faced the error appeared disingenuous to the patient. From a risk perspective, physicians need to know that both what they disclose and how they disclose it are important in communicating poor outcomes and medical errors to patients.
Insofar as trying to limit malpractice exposure, medical error training programs are necessary and should be woven into continuing medical education courses. Those who work in risk management, quality, and patient safety are encouraged to keep the physicians and patients they serve up to snuff on current data and recommendations for handling the dissemination of medical errors.
Defensive medicine has been defined as “the ordering of treatments, tests, and procedures primarily to help protect the physician from liability rather than to substantially further the patient’s diagnosis or treatment” (J Gen Intern Med 2010; 25:470-3). Estimates for the economic impact on this range from $46 to $178 billion per year.
Despite this steep economic impact, it is anticipated by many that physicians will continue this practice because of the stark difference in risk they perceive. A physician’s liability is great when he or she is sued, whereas the reward for practicing within a value-based system is minimal. Further, a recent study showed that higher-spending physicians across all specialties were sued for malpractice less (Med Econ 2016; 93:17-8, 20-2).
Given that the average physician with a 40-year career spends approximately 11% of that career dealing with an open malpractice claim and the fact that the landscape of health care is being driven more and more by patient satisfaction and outcomes, there is little motivation for physicians to change their practice of defensive medicine. In fact, tort reform in Texas, Georgia, and South Carolina that raised the threshold of negligence for emergency room providers has not resulted in a decrease in the use of costly and unnecessary procedures (Med Econ 2016; 93:17-8, 20-2).