Physicians are not immune from indulging in urban legends. One such legend is that litigation and malpractice suit risks are so darn high that doctors feel the need to conduct unnecessary care, tests and other actions not to ensure the health of a patient but instead to safeguard themselves against malpractice liability. This behavior can be broadly defined as ‘defensive medicine’.
The article “Outcomes of Medical Malpractice Litigations against U.S. Physicians,” from the Archives of Internal Medicine reviews a series of litigated malpractice claims. The majority are dismissed, the next group resolved before a verdict, and of the relatively few that go to trial, the majority result in a defense verdict.
There are three prongs to malpractice, knows as the ‘Four D’s’:
Duty: Duty exists when the physician-patient relationship has been established. The patient has sought the assistance of the physician, and the physician has knowingly undertaken to provide the needed medical service.
Dereliction: Dereliction, or failure to perform a duty, is the second element required. There must be proof that the physician somehow neglected the duty to the patient.
Direct cause: There must be proof that the harm to the patient was directly caused by the physician’s actions or failure to act and that the harm would not otherwise have occurred.
Damages: The patient must prove that a loss or harm has resulted from the actions of the physician.
What is not clear from the data is any case specific information that would demonstrate how many, for example, settled in a physician favorable manner due to defensive actions, rather than normal and prudent care. And of course, settlements in favor of plaintiffs may take place because malpractice occurred. In the litigation process one will have the ability to defend ones actions and have experts who support these actions, if proper care and judgment took place.
Quality medical care should be conducted based upon prudent evidence-based standards, including diagnostic efforts and studies. They should not be based upon largely mythical fears of adverse litigation. Care well for patients and if bad outcomes happen, they may not result in a lawsuit against the doctor. Engage in excessively defensive actions in the case of substandard care and judgment and one will likely not be protected from adverse findings.