Positive and negative consequences for public health, not only in terms of the standard of care but also in relation to the rationing of limited resources. Positive aspects include providing more detailed explanations to patients when obtaining consent and more detailed note taking. Negative aspects occur when a doctor prescribes unnecessary drugs, increases testing and avoids certain ‘high-risk’ treatments. The attitudes on whether or not doctors practise ‘defensive medicine’ are divided.
Samuels claims that some say we have a compensation culture, the result of which encourages defensive medicine whilst others say that it is all exaggerated and the number of cases of medical negligence is not rising. 28 Tancredi and Barondess are of the opinion that despite the apparent growing importance of defensive medicine there is little empirical evidence about the extent of such practices. 29 Some evidence of fear of litigation could be found in the upsurge of subscription memberships to the MDU.
In 2008 there were 180,681 subscribed members 31 up from 176,059 in the previous year, 32 whether this is evidence in support of ‘defensive medicine’ is debatable but it does show that doctors are being more cautious. In ‘A study of General Practitioners’, Summerton concludes that GP’s are practicing defensive medicine as 98% of them claim to be making practice changes in response to the concerns of the risk of being sued or having a complaint lodged . 33 Arguably the existence of litigation can harm the relationship between doctor and patient.
A doctor may be reluctant to inform his patient how and why an injury has occurred during treatment for fear that in doing so would result in litigation. The Kennedy Report offers there is a duty to tell a patient if adverse events have occurred 34 and that patients and the public must be able to obtain information as to the relative performance of consultant. 35 With this in mind the NHS has set up a Care Record scheme so patients can review their notes, including referral letters and test results. 36 Keogh is concerned that publishing performance data could lead to the practice of defensive surgery, where high risk cases are avoided.
More detailed notes can be viewed positively however, it can also have adverse effects and encourage negative defensive medicine as doctors may become anxious as to what their notes and performance show. With the Kennedy Report in mind, the CMO conducted a review and published the consultation paper: ‘Making Amends,’ which shows inter alias that cases are slow, unfair, expensive, and that the system encourages doctors to practice defensive medicine. 38 The paper aims to offer apologies and explanations to patients who have suffered harm and directs the NHS to reduce risks and ensure safety so that the level of medical error is reduced.
The paper sets out proposals for an NHS Redress Scheme that would provide adjudication for clinical negligence claims up to 30,000,40 without the need for legal proceedings. Capstick has reacted to the paper somewhat critically and claims that the proposals for reform run the risk of increasing the burden on clinicians because the number of claims will increase. 41 Taking into account the recommendations in the paper the government set up NHS Redress Act 2006 which aims to provide a low cost, quick and genuine alternative to the litigation system.
However, Brazier claims it may do no more than to ‘formalise what already happens. ‘ 42 A drastic advance to reform would be to consider a ‘no fault scheme’ as already adopted in New Zealand whereby compensation is awarded to patients after they have sustained injury following a medical procedure, without the need for proving negligence. Arguments in favour: cases would be dealt with quicker, lower administrative and legal costs; reduced tension between clinicians and claimants 43 and It would also be easier for the patient to prove as the breach of duty would be superfluous.
Arguments against: It would be far more expensive than the current tort system. In ‘Making Amends’, the CMO estimated the cost of a no-fault scheme would be 4 billion each year. The breach of duty would be replaced with complex issues of causation; floodgate concerns resulting in a compensation culture, compensation would be set on a tariff basis and finally it would take away all concept of accountability as it does not hold those to account who have been negligent.
Arguably, the arguments against ‘no fault’ outweigh those in favour. Doctors are being over-cautious. According to the NHSLA only 2% of the claims they deal with end up in court. 45 The paternalistic approach of the ‘Bolam test’ is very ‘pro doctor’ and makes it hard for claims against a doctor to succeed. The ruling in Chester disregarded the ‘Bolam test’ with regards to risk disclosure to staunchly support patient autonomy and ‘informed consent’. Heywood claimed this could encourage doctors to practice defensive medicine.
But is that so bad? Arguably, involving the patient in more detailed explanations as to risks has to be seen as being positive? The ‘Bolam test’ still governs most malpractice claims to establish breach of duty and as stated in Bolitho when a judge would hold medical opinion to be unreasonable would be rare, with this in mind doctors could be seen to have little to worry about.
References
1 Herring, J ‘Medical Law and ethics’, 2nd edition, Oxford University Press (2008), p. 94 2 National Health Service Litigation Authority 2007