The use of low-osmolar contrast agents: technological change and defensive medicine

How defensive medicine is defined in European medical literature: a systematic review

OBJECTIVES

Defensive medicine has originally been defined as motivated by fear of malpractice litigation. However, the term is frequently used in Europe where most countries have a no-fault malpractice system. The objectives of this systematic review were to explore the definition of the term 'defensive medicine' in European original medical literature and to identify the motives stated therein.

DESIGN

Systematic review.

DATA SOURCES

PubMed, Embase and Cochrane, 3 February 2020, with an updated search on 6 March 2021.

METHODS

Following the Preferred Reporting Items for Systematic Reviews and Meta-Analyses, we reviewed all European original peer-reviewed studies fully or partially investigating 'defensive medicine'.

RESULTS

We identified a total of 50 studies. First, we divided these into two categories: the first category consisting of studies defining defensive medicine by using a narrow definition and the second category comprising studies in which defensive medicine was defined using a broad definition. In 23 of the studies(46%), defensive medicine was defined narrowly as: health professionals' deviation from sound medical practice motivated by a wish to reduce exposure to malpractice litigation. In 27 studies (54%), a broad definition was applied adding … or other self-protective motives. These self-protective motives, different from fear of malpractice litigation, were grouped into four categories: fear of patient dissatisfaction, fear of overlooking a severe diagnosis, fear of negative publicity and unconscious defensive medicine. Studies applying the narrow and broad definitions of defensive medicine did not differ regarding publication year, country, medical specialty, research quality or number of citations.

CONCLUSIONS

In European research, the narrow definition of defensive medicine as exclusively motivated by fear of litigation is often broadened to include other self-protective motives. In order to compare results pertaining to defensive medicine across countries, future studies are recommended to specify whether they are using the narrow or broad definition of defensive medicine.

PROSPERO REGISTRATION NUMBER

CRD42020167215.

Reevaluating Reports of Defensive Medicine

There is ongoing policy debate about the potential for malpractice liability reform to reduce the use of defensive medicine and slow the growth of health care spending. The effectiveness of such policy levers hinges on the degree to which physicians respond to liability pressures by prescribing medically unnecessary care. Many estimates of this relationship are based on physician reports. We present new survey evidence on physician assessment of their own use of medically unnecessary care in response to medical liability and other pressures, including a randomized evaluation of the sensitivity of those responses to survey framing. We find that while use of such care is potentially quite prevalent, responses vary substantially based on survey framing, with the way the question is phrased driving differences in responses that are often as great as those driven by physician specialty or whether the physician has personally been named in a lawsuit. These results suggest that self-reported use of medically unnecessary care ought to be used with caution in the formulation of malpractice liability system reform.

Does litigation influence medical practice? The influence of community radiologists' medical malpractice perceptions and experience on screening mammography

PURPOSE

To assess the relationship between radiologists' perception of and experience with medical malpractice and their patient-recall rates in actual community-based clinical settings.

MATERIALS AND METHODS

All study activities were approved by the institutional review boards of the involved institutions, and patient and radiologist informed consent was obtained where necessary. This study was performed in three regions of the United States (Washington, Colorado, and New Hampshire). Radiologists who routinely interpret mammograms completed a mailed survey that included questions on demographic data, practice environment, and medical malpractice. Survey responses were linked to interpretive performance for all screening mammography examinations performed between January 1, 1996, and December 31, 2001. The odds of recall were modeled by using logistic regression analysis based on generalized estimating equations that adjust for study region.

RESULTS

Of 181 eligible radiologists, 139 (76.8%) returned the survey with full consent. The analysis included 124 radiologists who had interpreted a total of 557 143 screening mammograms. Approximately half (64 of 122 [52.4%]) of the radiologists reported a prior malpractice claim, with 18 (14.8%) reporting mammography-related claims. The majority (n = 51 [81.0%]) of the 63 radiologists who responded to a question regarding the degree of stress caused by a medical malpractice claim described the experience as very or extremely stressful. More than three of every four radiologists (ie, 94 [76.4%] of 123) expressed concern about the impact medical malpractice has on mammography practice, with over half (72 [58.5%] of 123) indicating that their concern moderately to greatly increased the number of their recommendations for breast biopsies. Radiologists' estimates of their future malpractice risk were substantially higher than the actual historical risk. Almost one of every three radiologists (43 of 122 [35.3%]) had considered withdrawing from mammogram interpretation because of malpractice concerns. No significant association was found between recall rates and radiologists' experiences or perceptions of medical malpractice.

CONCLUSION

U.S. radiologists are extremely concerned about medical malpractice and report that this concern affects their recall rates and biopsy recommendations. However, medical malpractice experience and concerns were not associated with recall or false-positive rates. Heightened concern of almost all radiologists may be a key reason that recall rates are higher in the United States than in other countries, but this hypothesis requires further study.

Economic impact of drug-eluting stents on hospital systems: a disease-state model

BACKGROUND

Drug-eluting intracoronary stents decrease restenosis and later revascularization. The US Department of Health and Human Services (HHS), recognizing the financial and clinical impact of this technology, recently proposed accelerated reimbursement to hospitals.

METHODS AND RESULTS

A disease state-transition computer model simulated the clinical and economic consequences to hospitals of drug-eluting stents over 5 years. Model parameters combined information from a longitudinal clinical database, a hospital cost-accounting system, and a survey instrument. Simulations were repeated 1000 times for each set of parameters. With 85% of stent procedures shifted to drug-eluting stents in the first year of availability, the mean number of repeat revascularizations dropped by 60.4% at year 5. With no changes in reimbursement policy, a hospital with a catheterization laboratory volume of 3112 patients yearly converted from a 2.01 million dollars (M) annual profit to an 8.10 M dollars loss in the first year (95% CI 8.09 M dollars to 8.12 M dollars) and 8.7 M dollars annual losses in later years. This represented an overall change in cash flow of 55.71 M dollars (95% CI 55.66 M dollars to 55.76 M dollars) away from the hospital over 5 years. The incremental reimbursement proposed by HHS reduced this loss to 4.75 M dollars in the first year and to 5.6 M dollars annually thereafter. In sensitivity analyses, the conversion of patients from bypass surgery to drug-eluting stents was the largest driver of overall cash flow shifts.

CONCLUSIONS

Although Medicare has proposed to increase reimbursement to ease the impact of drug-eluting stents on hospitals, this increase will not totally offset the costs.

International variation in screening mammography interpretations in community-based programs

BACKGROUND

Variations in mammography interpretations may have important clinical and economic implications. To evaluate international variability in mammography interpretation, we analyzed published reports from community-based screening programs from around the world.

METHODS

A total of 32 publications were identified in MEDLINE that fit the study inclusion criteria. Data abstracted from the publications included features of the population screened, examination technique, and clinical outcomes, including the percentage of mammograms judged to be abnormal, positive predictive value of an abnormal mammogram (PPV(A)), positive predictive value of a biopsy performed (PPV(B)), and percentages of breast cancer patients with ductal carcinoma in situ (DCIS) and minimal disease (DCIS and/or tumor size < or =10 mm). North American screening programs were compared with those from other countries using meta-regression analysis. All statistical tests were two-sided.

RESULTS

Wide ranges were noted for the percentage of mammograms judged to be abnormal (1.2%-15.0%), for PPV(A) (3.4%-48.7%), for PPV(B) (5.0%-85.2%), for percentage diagnosed with DCIS (4.3%-68.1%), and for percentage diagnosed with minimal disease (14.0%-80.6%). The percentage of mammograms judged to be abnormal were 2-4 percentage points higher in North American screening programs than they were in programs from other countries, after adjusting for covariates such as percentage of women who were less than 50 years of age and calendar year in which the mammogram was performed. The percentage of mammograms judged to be abnormal had a negative association with PPV(A) and PPV(B) (both P<.001) and a positive association with the frequency of DCIS cases diagnosed (P =.008) and the number of DCIS cases diagnosed per 1000 screens (P =.024); no consistent relationship was observed with the proportion of breast cancer diagnoses reported as having minimal disease or the number of minimal disease cases diagnosed per 1000 screens.

CONCLUSION

North American screening programs appear to interpret a higher percentage of mammograms as abnormal than programs from other countries without evident benefit in the yield of cancers detected per 1000 screens, although an increase in DCIS detection was noted.

Cost-effectiveness analysis in the courts: recent trends and future prospects

This article provides an initial look at how managed care organizations (MCOs) might incorporate cost-effectiveness analysis (CEA) into their decision-making process and how the courts might respond. Because so few medical liability cases directly involve CEA, we must look at other areas of the law to assess potential MCO liability for applying CEA. In general negligence cases, courts rely on a risk-benefit test to determine customary practice. Likewise, in product liability cases, courts use a risk-utility calculus to determine liability for product design defects. And in challenges to government regulation, courts examine how agencies use CEA to set regulatory policy. The results have been mixed. In product liability cases, CEA has led to some punitive damage awards against automobile manufacturers. But courts have integrated it in negligence cases without generating juror antipathy, and generally defer to agency expertise in how to incorporate CEA. The article discusses the implications of these cases for MCO use of CEA and outlines various options for setting the standard of care in the managed care era.

Defensive medicine during hospital obstetrical care: a byproduct of the technological age

This paper presents an alternative perspective on defensive medicine. Defensive medicine is usually understood as arising from the effect of law on medicine through fear of litigation. Of equal significance, however, is the complementary influence of medicine on law through technological innovation, and, more importantly, the way that medicine and law develop dialectically. Each shapes the other in establishing the standards of care central to both clinical medicine and to actual or potential legal action. Excessive testing owing to fear of litigation indicates that defensive medicine is being practised in a particular setting, but it does not explain why this is so. To understand why defensive medicine occurs and why it is so troubling to clinicians requires an understanding, not only of medical and legal developments, but of a political-economic system and the beliefs and values of a society. Defensive medicine is discussed in relation to hospital obstetrical scenarios commonly associated with fear of litigation: fetal oxygen deprivation ("distress"), which is detected using an electronic fetal monitor, and prolonged labor, known as "dystocia". The material presented is taken from a medical anthropological study of obstetrical care in rural British Columbia, Canada. Litigation fears are shown to result less from rare, albeit often devastating, allegations of malpractice than from doctors adopting a role as "fetal champions", together with the introduction of electronic monitoring technology. The paper concludes by asserting that, rather than being in an adversarial relationship, medical practice and associated litigation primarily work together to reinforce each other, and the social conditions in which defensive medicine occurs.

Clinical assessment of malpractice case scenarios in an anesthesiology department

STUDY OBJECTIVE

To determine whether anesthesiologists agree with each other when assessing actual malpractice clinical scenarios, whether their assessments comport with the actual malpractice verdicts, and whether they can accurately guess jury verdicts.

DESIGN

Survey study requesting anesthesiologists to review 12 malpractice case scenarios, administered twice.

SETTING

Academic medical center department of anesthesiology.

MEASUREMENTS AND MAIN RESULTS

Mean interphysician agreement, mean Likert values assessing relative negligence, mean agreement with jury verdicts, mean success at predicting actual jury verdicts for 12 actual jury verdict case scenarios. Respondent anesthesiologists appeared homogeneous by training and years of experience. They showed high (> 80%) agreement among themselves in their assessments of the malpractice case scenarios over the two administrations (p = 0.13). In addition, mean Likert values as to relative negligence assessments by respondent anesthesiologists were not significantly different between administrations by case (p = 0.09 to 1.00). However, of the eight cases with complete or virtually complete agreement between respondent anesthesiologists, three (37.5%) disagreed with the verdict rendered by the actual juries. In addition, anesthesiologists showed significant disagreement (> 30%) among themselves in four of the case scenarios, indicating there may not be agreement regarding the standard of care in these clinical circumstances. Finally, anesthesiologists predicted jury verdicts poorly, with success rates of 50% or less in seven of the 12 case scenarios.

CONCLUSIONS

For this sample of homogeneous anesthesiologists who demonstrated high clinical agreement, it appears that the malpractice system may not be able to function on its own terms in adjudicating malpractice claims. Although there was agreement among respondent anesthesiologists, these assessments were in direct opposition to actual verdicts, a significant percentage of cases resulted in disagreements as to the appropriate standard of care, and anesthesiologists could not successfully predict jury verdicts. The malpractice system appears to be operating far from its theoretical ideal if these results could be applied more generally. Thus, in practice, the legal system, which is to provide an optimal level of injury deterrence, may be a poor method to limit patient injury, improve patient safety, and provide compensation to negligently injured patients in the health delivery system.

Error in medicine: legal impediments to U.S. reform

Error in medicine is common and can lead to significant patient injury. Although successful systematic efforts to reduce human error have been applied in other complex systems, the field of medicine has just begun to make a broad-based effort in this regard. However, both research in and implementation of patient safety measures may not occur without considering important legal issues that may impede these health policy efforts. Tort and contract law may interact with the vagaries of managed care to limit participation in these error reduction efforts by health care providers as well as by managed care organizations. Thus, for patient safety research to be successful, all members of the health care enterprise must participate in a coordinated effort to identify and establish effective practices that may reduce human error in medicine. But beyond this understanding, it is imperative that legal impediments be recognized and addressed before the goal of a continuously improving, increasingly safe health care system can become a reality.

Legal and policy considerations in using clinical practice guidelines

The increased use of clinical practice guidelines has implications for both public policy and for litigation. Physicians are concerned that the introduction of practice guidelines will reduce their clinical decision-making authority and that the failure to follow clinical practice guidelines will lead to medical liability. Although practice guidelines are an increasing part of medical practice, there has been only limited litigation to determine the extent to which guidelines will be used to set the applicable standard of care. This article discusses the potential legal and public policy issues raised by the introduction and use of clinical practice guidelines. From a legal perspective, the primary issue is whether guidelines will be used to set the "standard of care" or will be one piece of evidence that a jury would use to determine the outcome of medical liability litigation. Based on an assessment of the applicable legal and policy considerations, the article concludes that courts should admit guidelines into evidence, but that they should not be used as the sole determinant of the standard of care. Instead, guidelines should be treated as one piece of evidence to be weighed by the jury. This approach will facilitate physician acceptance of guidelines by not imposing liability for the failure to follow guidelines without additional evidence to determine the standard of care.

Defensive medicine and tort reform: new evidence in an old bottle

Quantitative analysis of medical liability's influence on medical practice is a small but growing field. The three foregoing articles illustrate three of the possible analytic approaches: case study of technological diffusion, survey of physician responses to detailed clinical scenarios, and multivariate analysis of the relation of physicians' scenario responses to objective liability experience. The articles also offer a good picture of the state of the art: Many difficulties hamper research in this area, and these articles, like others, offer considerable illumination but leave much uncovered. Defensive medicine surely exists, but its effects on health care spending and access are unclear. The most important lessons for public policy are that tort reform may be necessary but not sufficient to reduce the problems associated with defensive medicine, and that the major malpractice problem continues to be malpractice.

Physicians' personal malpractice experiences are not related to defensive clinical practices

Whether personal malpractice experience is part of a tort signal prompting physicians to practice defensively is unclear. To explore this issue further, we assessed how physicians' malpractice experiences affect clinical decision making. We surveyed 1,540 physicians from four specialty groups (cardiologists, surgeons, obstetrician-gynecologists, and internists) using specialty-specific clinical scenarios. Physicians were in active private practice, were covered by a single malpractice insurer for five or more years, and worked in an eastern state. The net response rate was 54 percent (835 of 1,540) but measurable bias, based on practice characteristics, was negligible. Physicians evaluated clinical scenarios that were designed to maximize potential for finding positive defensive practices (extra tests and procedures). Then they rated how various factors influenced their decisions and answered questions on practice attitudes. The study compared management and testing recommendations among physicians with varying levels of malpractice exposure, which we defined in three separate ways. Participants were unaware of the study hypotheses. Physicians with greater malpractice experience showed no systematic differences in initial management choice or subsequent test recommendations. For example, similar percentages of internists in the top and bottom claims rate quartiles admitted a patient with syncope (78 percent versus 73 percent; p = 42), discharged a patient with nonspecific chest pain (80 percent versus 80 percent; p = .88), and delayed surgery in a patient with nonspecific changes on a electrocardiograph (58 percent versus 68 percent; p = .18). Attitudes about malpractice also did not differ with varying malpractice experience. Personal malpractice experience is not a predominant factor in the tort signal that prompts physicians to engage in defensive practices, to the extent that such practices exist.