A colonized general practice? A critical habermasian analysis of how general practitioners experience defensive medicine in their everyday working life.

The aim of this article is to show how Jürgen Habermas' communicative action theory serves as a useful tool in analysing and interpreting empirical data on how Danish general practitioners experience defensive medicine in their everyday working life. Through six qualitative focus group interviews with a total of 28 general practitioners (14 men and 14 women), the general practitioners' understandings of and experiences with defensive medicine were unfolded and discussed. Traditionally, defensive medicine is understood as physicians' deviation from sound medical practice due to fears of liability claims or lawsuits. In this study, however, a broader understanding of defensive medicine emerged as unnecessary medical actions that are more substantiated by feelings of demands and pressures than meaningful clinical behaviour. As a first analytical step, the data are contextualized drawing on the medical sociological literature that has theorized recent changes within primary health care such as regulation, audit, standardization and consumerism. Using Habermas' theorization to further interpret the general practitioners' experiences, we argue that central areas of the general practitioners' clinical everyday work life can be seen as having become subject to the habermasian social and political processes of 'strategic action' and 'colonization'. It is furthermore shown that the general practitioners share an impulse to resist these colonizing processes, hereby pointing to a need for challenging the increasingly defensive medical culture that seems to pervade the organization of general practice today.

Responsabilidad Médica en Chile: Fallos de la Corte Suprema de Justicia 2017 / Medical Malpractice in Chile: Rulings of the Supreme Court of Justice 2017

RESUMEN: El objetivo de este trabajo fue analizar los datos epidemiológicos y jurídicos de los casos por responsabilidad médica fallados por la Corte Suprema de Justicia chilena (CSJ) el año 2017, para relevar los escenarios de alto riesgo, aportando a su prevención. Se realizó un estudio retrospectivo, revisando los fallos de la CSJ en la base de datos electrónica del Poder Judicial chileno. Se seleccionaron y analizaron los fallos por responsabilidad médica. Se detectó un total de 61 casos por responsabilidad médica que alcanzaron la CSJ en 2017. Todos correspondieron a causas civiles. La duración promedio de los juicios fue 41,9 meses. La especialidad más demandada y condenada fue ginecología. La mayoría de las demandas y condenas afectó al Sistema Público de salud. Los casos que dan origen a las demandas son, en su mayoría, de atención de urgencias por sobre las programadas, y de tratamiento por sobre procedimientos quirúrgicos. El 54,8 % de los casos resultaron en la muerte del paciente. La mitad de los fallos condenatorios involucraba el fallecimiento del usuario afectado. Se deben investigar los factores de riesgo no sólo de la ocurrencia de mal-praxis, si no de la judicialización de los conflictos médico-paciente, especialmente en el área gineco-obstétrica, incluyendo los casos de instancias anteriores a la CSJ. Se debe investigar así mismo los factores de riesgo para la mayor propensión de los profesionales de sexo masculino de ser demandados y condenados por malpraxis médica.

ABSTRACT: The objective of the present study is to characterize the epidemiologic and juridical data for medical malpractice cases ruled by the Chilean Supreme Court (CSC) in 2017, to highlight the high risk scenarios, as a contribution to their prevention. A search of the CSC electronic database was conducted to identify and analyze CSC rulings for medical malpractice cases. In this study 61 malpractice cases ruled by CSC were identified. The CSC received only civil cases of medical malpractices during the studied period. The average duration of the trial was 41.9 months. Gynecologists faced suits and received sentences more frequently than any other type of specialist. The majority of prosecuted cases and convictions were associated with the public health system. A greater number of claims were related to emergency care than with scheduled procedures. Likewise, more claims were associated with non-surgical treatment than with surgical procedures. 54.8 % of all cases resulted in the patient's death. Half of the cases that lead to conviction, were related to the death of a patient. Risk factors should be investigated, not only of the occurrence of malpractice, but also of the judicial process of doctor-patient conflicts, especially in the obstetrics and gynecology area, including the analysis of cases of prior judicial instances. The risk factors for the higher propensity of male professionals to be prosecuted and convicted for medical malpractice should also be investigated.

Triggers of defensive medical behaviours: a cross-sectional study among physicians in the Netherlands.

OBJECTIVES: This study investigated whether the attitudes of physicians towards justified and unjustified litigation, and their perception of patient pressure in demanding care, influence their use of defensive medical behaviours. DESIGN: Cross-sectional survey using exploratory factor analysis was conducted to determine litigation attitude and perceived patient pressure factors. Regression analyses were used to regress these factors on to the ordering of extra tests or procedures (defensive assurance behaviour) or the avoidance of high-risk patients or procedures (defensive avoidance behaviour). SETTING: Data were collected from eight Dutch hospitals. PARTICIPANTS: Respondents were 160 physicians and 54 residents (response rate 25%) of the hospital departments of (1) anaesthesiology, (2) colon, stomach and liver diseases, (3) gynaecology, (4) internal medicine, (5) neurology and (6) surgery. PRIMARY OUTCOME MEASURES: Respondents' application of defensive assurance and avoidance behaviours. RESULTS: 'Disapproval of justified litigation' and 'Concerns about unjustified litigation' were positively related to both assurance (ß=0.21, p<0.01, and ß=0.28, p<0.001, respectively) and avoidance (ß=0.16, p<0.05, and ß=0.18, p<0.05, respectively) behaviours. 'Self-blame for justified litigation' was not significantly related to both defensive behaviours. Perceived patient pressures to refer (ß=0.18, p<0.05) and to prescribe medicine (ß=0.23, p<0.01) had direct positive relationships with assurance behaviour, whereas perceived patient pressure to prescribe medicine was also positively related to avoidance behaviour (ß=0.14, p<0.05). No difference was found between physicians and residents in their defensive medical behaviour. CONCLUSIONS: Physicians adopted more defensive medical behaviours if they had stronger thoughts and emotions towards (un)justified litigation. Further, physicians should be aware that perceived patient pressure for care can lead to them adopting defensive behaviours that negatively affects the quality and safety of patient care.

Defensive Medicine: Is It Legitimate or Immoral?

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Defensive Medicine and the Imposition of a More Demanding Standard of Care.

"Defensive medicine" refers to the practice of medicine guided by the intention to avoid litigation, either by excluding scenarios with potential risks (negative defensive medicine) or by providing additional health care (positive defensive medicine). Positive defensive medicine is the topic of this article.Despite the criticism surrounding it, positive defensive medicine is increasing because doctors feel that they will be better protected from litigation if they provide more medical care. Courts, patients, and the community in general never seem to have enough medical care and are even willing to accept some negative outcomes if they feel that the doctor is doing a lot.There are, however, several negative consequences engendered by positive defensive medicine. This article focuses on a particularly pernicious one: the consolidation of an extremely demanding standard of care. If a significant number of doctors starts acting as imposed by defensive medicine, the rest will feel pressured to follow that behavior. Customary conduct will prevail over reasonable conduct.This article demonstrates that this new standard of care leads to bad medicine and eventually to medical malpractice, because it postpones necessary treatments, exposes patients to unnecessary risks, and results in ineffective medical care.

Challenges of New Healthcare Reform Act 2017 and Possible Rise of Defensive Medicine in Nepal.

Hippocratic oath, written 4th or 5th century BC, is still the binding mantra for physicians, which swears to fulfill to the best of one's ability and judgement, and treat sick human beings not just illness. But with changing health trends in southeast Asia region, there is a dramatic shift in patients and patients' party expectations regarding treatment, recovery, complications, and death. Such expectations havelead to violence against physicians and shift towards alternative medical practice. This article explores the possible rise of defensive medicine and its broader implications in health care system in Nepal with regard to the new 'Muluki Aparadh Samhita Ain 2074/Criminal (Code) Act 2017'. Keywords: Changing health; criminal act; defensive medicine; muluki ain, Nepal.

The opinion of Turkish cardiologists on current malpractice system and an alternative patient compensation system proposal: PCS study group.

OBJECTIVE: Cardiologists participate in the diagnosis and interventional treatment of numerous high-risk patients. The goal of this study was to investigate how the current malpractice system in Turkey influences cardiologists' diagnostic and interventional behavior and to obtain their opinions about an alternative patient compensation system. METHODS: The present cross-sectional study assessed the practice of defensive medicine among cardiologists who are actively working in various types of workplace within the Turkish healthcare system. A 24-item questionnaire was distributed to cardiology residents, specialists, and academics in Turkey in print format, by electronic mail, or via cell phone message. RESULTS: A total of 253 cardiologists responded to the survey. Among them, 29 (11.6%) had been sued for malpractice claims in the past. Of the cardiologists who had been sued, 2 (6.9%) had been ordered to pay financial compensation, and 1 (3.4%) was given a sentence of imprisonment due to negligence. In all, 132 (52.8%) of the surveyed cardiologists reported that they had changed their practices due to fear of litigation, and 232 (92.8%) reported that they would prefer the new proposed patient compensation system to the current malpractice system. Among the cardiologists surveyed, 78.8% indicated that malpractice fear had affected their decision-making with regard to requesting computed tomography angiography or thallium scintigraphy, 71.6% for coronary angiography, 20% for stent implantation, and 83.2% for avoiding treating high-risk patients. CONCLUSION: The results of this survey demonstrated that cardiologists may request unnecessary tests and perform unneeded interventions due to the fear of malpractice litigation fear. Many also avoid high-risk patients and interventions. The majority indicated that they would prefer the proposed alternative patient compensation system to the current malpractice system.

Defensive medicine among neurosurgeons in the Netherlands: a national survey.

OBJECTIVE: In defensive medicine, practice is motivated by legal rather than medical reasons. Previous studies have analyzed the correlation between perceived medico-legal risk and defensive behavior among neurosurgeons in the United States, Canada, and South Africa, but not yet in Europe. The aim of this study is to explore perceived liability burdens and self-reported defensive behaviors among neurosurgeons in the Netherlands and compare their practices with their non-European counterparts. METHODS: A survey was sent to 136 neurosurgeons. The survey included questions from several domains: surgeon characteristics, patient demographics, type of practice, surgeon liability profile, policy coverage, defensive practices, and perception of the liability environment. Survey responses were analyzed and summarized. RESULTS: Forty-five neurosurgeons filled out the questionnaire (response rate of 33.1%). Almost half (n = 20) reported paying less than 5% of their income to annual malpractice premiums. Nearly all respondents view their insurance premiums as a minor or no burden (n = 42) and are confident that in their coverage is sufficient (n = 41). Most neurosurgeons (n = 38) do not see patients as "potential lawsuits". CONCLUSIONS: Relative to their American peers, Dutch neurosurgeons view their insurance premiums as less burdensome, their patients as a smaller legal threat, and their practice as less risky in general. They are sued less often and engage in fewer defensive behaviors than their non-European counterparts. The medico-legal climate in the Netherlands may contribute to this difference.

The Impact of State Tort Reforms on Imaging Utilization.

PURPOSE: Defensive medicine, broadly defined as medical practices that protect physicians from malpractice lawsuits without providing benefits to patients, can lead to wasteful use of health care resources and higher cost. Although physicians cite malpractice liability as an important factor driving their decisions to order imaging tests, little research has been done to examine the systematic impact of liability pressure on overall imaging. The authors examined the extent to which radiography use is influenced by malpractice liability pressure among office-based physicians. METHODS: Using National Ambulatory Medical Care Survey data from 1999 to 2010, the authors used multivariate difference-in-difference logistic regression to examine the effects of different types of state tort reforms on the probability of radiography orders by primary care physicians (PCPs) and specialists. RESULTS: The probability that a PCP ordered radiography decreased when states enacted permanent caps on noneconomic damages (-1.0%, P < .01), periodic payment reforms (-1.6%, P < .05), and the total number of tort reforms (-0.5%, P < .05). Specialist physicians were responsive to two reforms: caps on punitive damages (-6.1%, P < .01) and the total number of medical tort laws (-1.2%, P < .01). The passage of new indirect reforms was found to reduce radiography orders for PCPs (-1.8%, P < .05), and the repeal of indirect reforms was found to increase radiography orders for specialists (+3.4%, P < .01). CONCLUSIONS: State tort reform seems to reduce physicians' ordering of radiography. This analysis also suggests that reforms that make it harder to sue physicians have a stronger impact than reforms that directly reduce physicians' malpractice claim payments.

Medical errors, malpractice, and defensive medicine: an ill-fated triad.

For the first 180 years following the founding of the US, physicians occasionally were sued for medical malpractice. Allegations of negligence were errors of commission - i.e. the physician made a mistake by doing something wrong, usually mistreatment of a fracture or dislocation, a complication or death following a surgical procedure, prescribing the wrong medication, and after the discovery of the X-ray by Roentgen in 1895, causing radiation burns. In the mid twentieth century malpractice allegations slowly changed from errors of commission to errors of omission - i.e. the physician failed to do something right: almost always, failed to make a diagnosis. The number of malpractice lawsuits increased at a geometric rate beginning in the 1960s, and in the 1970s physicians began practicing defensive medicine, which lead physicians to order unnecessary radiology exams and tests. In the past 20 years the number of malpractice lawsuits has been decreasing, but the practice of defensive medicine has continued. Unnecessary exams and tests increase the likelihood of overdiagnosis and overtreatment, i.e. a new kind of error of commission.

A comparison of medical litigation filed against obstetrics and gynecology, internal medicine, and surgery departments.

BACKGROUND: The aim of this study was to review the typical factors related to physician's liability in obstetrics and gynecology departments, as compared to those in internal medicine and surgery, regarding a breach of the duty to explain. METHODS: This study involved analyzing 366 medical litigation case reports from 1990 through 2008 where the duty to explain was disputed. We examined relationships between patients, physicians, variables related to physician's explanations, and physician's breach of the duty to explain by comparing mean values and percentages in obstetrics and gynecology, internal medicine, and surgical departments with the t-test and χ(2) test. RESULTS: When we compared the reasons for decisions in cases where the patient won, we found that the percentage of cases in which the patient's claim was recognized was the highest for both physician negligence, including errors of judgment and procedural mistakes, and breach of the duty to explain, in obstetrics and gynecology departments; breach of the duty to explain alone in internal medicine departments; and mistakes in medical procedures alone in surgical departments (p = 0.008). When comparing patients, the rate of death was significantly higher than that of other outcomes in precedents where a breach of the duty to explain was acknowledged (p = 0.046). The proportion of cases involving obstetrics and gynecology departments, in which care was claimed to be substandard at the time of treatment, and that were not argued as breach of a duty to explain, was significantly higher than those of other evaluated departments (p <0.001). However, internal medicine and surgical departments were very similar in this context. In obstetrics and gynecology departments, the proportion of cases in which it had been conceded that the duty to explain had been breached when seeking patient approval (or not) was significantly higher than in other departments (p = 0.002). CONCLUSION: It is important for physicians working in obstetrics and gynecology departments to carefully explain the risk of death associated with any planned procedure, and to obtain genuinely informed patient consent.

Medical liability, defensive medicine and professional insurance in otolaryngology.

BACKGROUND: This study aims at verifying relationships between the perception of medico-legal risks involved in the professional activity of Italian otolaryngologists, defensive medical behaviour and their understanding of professional liability insurance in matters of civil liability. One hundred specialists replied to a questionnaire pertaining to the psychological impact of medico-legal issues and to specific queries regarding insurance coverage, either privately stipulated or provided by the employer. Statistic analysis was carried out by χ(2) test and ANOVA multiple variance regression test, assuming P = 0.05 as the value of minimum statistical significance. RESULTS: It was found that in 50% of cases the behaviour of the doctor towards the patient had been decidedly influenced by concerns over medico-legal implications. In 29% of the sample these concerns had "often to always" influenced the choice of diagnostic procedures or treatment options, in order to safeguard themselves in case of legal dispute. The data obtained showed a statistically significant correlation between the level of concern (regarding potential medico-legal disputes) experienced by specialists on the one hand and variations in the doctor/patient relationship (P < 0.05) and the choice of defensive medical procedures (P < 0.05) on the other. Furthermore, the perception of the medico-legal problem was statistically related to the absence or poor knowledge of some insurance clauses, regarding posthumous coverage (72%), informed written consent (89%), and the coverage provided by the healthcare centre where the specialist is employed (32%) (P < 0.05). CONCLUSIONS: The results of this study indicate the necessity for a greater awareness of the actual guarantees provided by the insurance policy stipulated by specialists, to avoid inadequate coverage in the case of medico-legal disputes.

Informed consent and Italian physicians: change course or abandon ship--from formal authorization to a culture of sharing.

In Italy in recent years, an exponential increase in the frequency of medical malpractice claims relating to the issue of informed consent has substantially altered not only medical ethics, but medical practice as well. Total or partial lack of consent has become the cornerstone of many malpractice lawsuits, and continues to be one of the primary cudgels against defendant physicians in Italian courtrooms. Physicians have responded to the rising number of claims with an increase in 'defensive medicine' and a prevailing preoccupation with the purely formal aspects of consent. The result is a plethora of consent forms, believed to be a guarantee of 'informed consent', as well as a growing reliance on informed consent as a shield against judicial action brought by the patient. Physicians 'inform' patients without really sharing information, often delegating the task of communication to other professionals who are not doctors. Italian judges always condemn the physician when information to the patient has been inadequate, thus leading insurance companies to consider the lack of valid informed consent as the total responsibility of the physician and/or the hospital. It is necessary to change tack, to remove this idea of consent which permeates the defensive culture of medical practice. Italian physicians need to be trained, first of all, to become aware that information and consent are two distinct processes, albeit closely connected. Valid communication (in which there is information and consent) demands a higher level of professionalism from physicians.