Defending Ourselves against Defensive Medicine
By Jill Arnold
“Defensive medicine occurs when doctors order tests, procedures, or visits, or avoid high-risk patients or procedures, primarily (but not necessarily or solely) to reduce their exposure to malpractice liability. When physicians do extra tests or procedures primarily to reduce malpractice liability, they are practicing positive defensive medicine. When they avoid certain patients or procedures, they are practicing negative defensive medicine.”
Congressional Office of Technology Assessment, 1994
The rising cesarean rate in the United States regularly garners media attention, and when it does, it often shares space in articles with terms like “defensive medicine”, “fear of litigation” and “tort reform.” In response to questions about the overutilization of the cesarean section, some OB-GYNs express concerns about the economic non-sustainability and increasing maternal morbidity resulting from too many cesarean sections, yet most quoted at the level of the press remain rooted in an age-old fear-of-litigation narrative while the national cesarean rate climbs.
Richard Waldman was quoted in May 2010, one week before being sworn in as the 61st president of the American College of Obstetrics and Gynecologists, saying: “Unfortunately we don’t get sued for doing C-sections. We get sued for not doing C-sections soon enough,” said Dr. Waldman. “That has really increased, I think, our C-section rate.”
Waldman’s statement reflects a specific fear—a very real feeling of fear that he and his colleagues feel about the risk of being sued or that they will fall prey to what feels like an unfair malpractice tort process—but empirical evidence has yet to be found to support the claim that the number of obstetric malpractice lawsuits has caused the rise in the cesarean rate in the United States.
The admission that fear of litigation drives the national cesarean rate higher shines light on a widespread trend of failing to comply with the provisions of the Medicare program. According to Joanne Doroshow of the Center for Justice and Democracy, “[a] doctor who bills Medicare or Medicaid for tests and procedures done for a personal purpose — e.g., lawsuit protection — as opposed to what is medically necessary for a patient, is committing fraud under federal and state Medicare/Medicaid programs.”
How widespread is the problem of defensive medicine? Physicians themselves report that the practice is very common.
A 2003 survey conducted in Pennsylvania found that 93% of doctors reported practicing defensive medicine. In 2009, the American College of Obstetricians and Gynecologists (ACOG) revealed the results of their 2009 Survey on Professional Liability, in which 63% of OB-GYNs reported making changes to their practice which “ultimately hurt patients” stemming from a fear of liability or litigation.
Most recently, a study released in February 2010 by Jackson Healthcare and Gallup found that 73 percent of physicians agreed that they had practiced some form of defensive medicine in the past 12 months. Eighty-three percent of survey respondents in the 25 to 34-year-old age bracket reported learning to practice defensively, whether by ordering unnecessary tests or avoiding procedures considered to be high-risk.
The Jackson Healthcare report cites the overuse of the cesarean section, now the most commonly performed surgery in the United States, as an example of an effect of defensive medicine:
The rising C-section rate sheds light on the economic impact of defensive medicine at a micro-level. The U.S. Department of Health and Human Services reports that one in every three babies is now born by Cesarean Section, an increase of 53 percent since 1996.
Obstetricians interviewed in our study estimated that 38 percent of all C-sections are performed to avoid litigation. Using 2007 data from the National Center for Health Statistics and the March of Dimes, we estimate that the total annual cost for medically unnecessary C-Sections in the U.S. to be over $5 billion (multiplying 1.4 million C-section births times an average cost of $10,958, then dividing by 38 percent claimed to be defensive).
Clearly, patients bear much of the burden, and sometimes the economic costs, of defensive practices. But seldom acknowledged in the media is the fact that even the awareness of the potential for defensive medicine may be altering the behavior of patients. The majority of physicians report practicing defensively; therefore, patients may logically assume that there is a very good chance that their care provider will be making decisions based on their desire to reduce exposure to liability rather than solely in the best interests of their patients. Awareness of the pervasive practice of defensive medicine results in a breakdown in trust in the patient-physician relationship at the interpersonal level by introducing a substantive reason to doubt the benevolence of a physician’s motivation.
The authors of a 1996 article in the Journal of the American Medical Association examined the role of trust at the interpersonal level, stating that “[t]he most fundamental “caring” aspects of medicine depend on the sort of personal bonding that is only possible with those one trusts.” They note that, conversely, a patient-physician relationship that is characterized by suspicion and distrust is “more likely to foster litigation and the costly practices of defensive medicine.” In the case of an adverse outcome, doubts and distrust may “blossom” into stronger suspicions, and if the key actor is viewed as responsible and in control, the key actor tends to receive blame for the outcome. The fear of being blamed for a negative outcome in childbirth has led to the widespread overuse of the cesarean in spite of the best evidence available, which is not without negative consequences to women’s health at the macro level.
Cesarean sections increase the risk to the woman for a number of problems, including life-threatening complications such as hemorrhage, blood clots, bowel obstruction and infection. As the number of previous cesareans a woman has had increases, so does the likelihood of ectopic pregnancy, placenta previa, placenta accreta, placental abruption, uterine rupture and reduced fertility, according to Childbirth Connection, a not-for-profit organization dedicated to improving the quality of maternity care. Women are hospitalized longer and experience less early contact with their babies, which can result in breastfeeding difficulties. Babies are more likely to have breathing difficulties around the time of birth and to experience asthma in childhood and adulthood, and those born via a repeat cesarean are more likely to be born too early, resulting in more NICU stays.
The acceptance of this maxim and its use as justification for increasing cesarean rates across the country is a reflection of our collective values as a society. To shrug our shoulders at the use of an unnecessary and unwanted cesarean as a means of preserving the physician or institution rather than the health of the patient offers a glimpse into which stakeholders’ interests sit highest on the totem pole.
We must decide if we believe that it is within the ethical constraints of society to brush off defensive medicine in obstetrics as merely an unfortunate costly dilemma instead of looking at it for what it really is—the aggressive use of an unsuspecting patient’s body to provide a feeling of security and self-preservation to the physician.
Jill Arnold is an activist, aspiring public health researcher and founder of TheUnnecesarean.com
The Defending Ourselves against Defensive Medicine series consists of articles from lawyers, doctors, patients, sociologists and patient advocates to provide the reader with both a snapshot of defensive medicine in the U.S. as well as the feelings and often disparate thoughts of some of the affected stakeholders.
Articles will be posted throughout the week of January 10 to 15, 2010 and archived within this post for reference.
Sociologist Louise Marie Roth shares her research, which challenges the claim that the number of obstetric malpractice lawsuits has caused the rise in the cesarean rate in the United States.
Courtroom Mama, a contributor to The Unnecesarean, offers an introduction to medical malpractice for the non-attorney.
An anonymous OB-GYN describes the lawsuit that changed everything.
Lee Tilson, who has litigated medical malpractice cases for decades and was drafted into the patient safety movement by medical errors that adversely affected two family members, shares his views on cesarean sections.
Sociologist Barbara Katz-Rothman looks critically at malpractice insurance, pregnancy, risk and the U.S. health care system.
National Advocates for Pregnant Women ask whether recent debates about so-called “personhood” measures—ones that would legally separate eggs, embryos and fetuses from the pregnant women who carry, nurture, and sustain them—raise the question of whether “defensive medicine” provides a reasonable justification for forcing pregnant women to undergo cesarean surgery or for locking them up if they refuse.
OB-GYN Henry Dorn examines the role of technology and public opinion of modern obstetrics.
Emjaybee, a contributor to The Unnecesarean, gets real about her experience with defensive medicine in maternity care from the perspective of a patient.
Non-partisan, consumer advocacy organization Texas Watch analyzes the effects of Proposition 12.
President of the International Cesarean Awareness Network (ICAN) Desirre Andrews reflects on the organization’s concern for the effects of a defensive practice style.
ANaturalAdvocate, a contributor to The Unnecesarean and almost-lawyer, tells how her son’s iatrogenic prematurity stemming from an induction at 37 weeks for suspected macrosomia affected her and her choices for future births.
Amy Tuteur, MD, proposes that while defensive medicine appears to be about protecting doctors from liability, it’s really about protecting patients from any and all risk.
Two well-known patient advocates, Trisha Torrey and Dave deBronkart, share their thoughts on how to defend oneself from defensive medicine.
Jill Arnold and Henry Dorn, MD, explore how to build trust in the patient-provider relationship in the final post of the Defending Ourselves against Defensive Medicine series.