Overall, 63 medical students (50% of 126) and 51 residents (67% of 76) indicated that they had witnessed a medical error resulting in harm to a patient. Among the 63 medical students reporting that they had witnessed a medical error resulting in harm, 19 (30%) reported a failure to disclose the error, and, of those, 12 (63%) reported that malpractice liability concerns played a role in the decision not to report the error. Among the 51 residents who reported that they had witnessed a medical error resulting in harm, 14 (27%) reported a failure to disclose the error, and, of those, 12 (86%) reported that malpractice liability played a role in the decision not to disclose the error.
Given the frequency with which practicing physicians report engaging in defensive medicine, our findings regarding the prevalence of defensive medicine practices as reported by medical students and residents during clinical experiences are not surprising. According to previous research, 83% of 838 Massachusetts physicians3 and 93% of 824 Pennsylvania physicians in high-risk specialties4 reported engaging in defensive medicine. Similar to the findings from this prior research,3,4 we found that assurance behaviors were especially common. The explanation for this finding may relate to the perceived degree of risk that physicians attribute to each type of behavior. For example, doctors may perceive ordering more tests to be less risky to the patient than withholding a necessary procedure. Another of our findings—that respondents most commonly reported the assurance behavior of ordering more tests than medically indicated—corroborates the results of a recent national survey of physicians. An overwhelming majority of the respondents believed that physicians order more tests and procedures than needed in order to protect themselves from malpractice suits.9 As a result of these excessive services, defensive medicine costs have been conservatively estimated to be $45.6 billion per year.10
Remarkably, despite this prevalence and cost, no empirical evidence exists to support the assertion that assurance behaviors reduce liability risk. In fact, the opposite may be true: a growing number of studies show that abnormal test results are frequently missed by ordering physicians,11–16 and failure to follow up on results is a common cause of diagnostic error.17 We believe that the high volume of testing likely plays an important role in missed results. As a physician adds to the number of tests ordered for an individual patient, the probability that at least one result will be unexpectedly abnormal also increases. Yet, a physician may be less inclined to review the results of a test he or she anticipated would return as normal. Furthermore, abnormal results likely lead to additional testing and/or invasive procedures which carry inherent risk for complications.
We found several differences in how surgical and medical residents reportedly experienced the practice and teaching of defensive medicine. Surgical residents reported the avoidance of certain procedures more often than medical residents, likely reflecting the procedural nature of their training (i.e., medical residents may have little opportunity to avoid procedures simply because they perform fewer procedures, especially discretionary ones). Surgical residents also reported avoiding care for certain high-risk patients more frequently, which is likely explained by the relative inability of medical specialists (e.g., those in emergency medicine) to decline care to patients. Surgical residents in our study also reported more frequently than medical residents that their attendings explicitly taught them to take malpractice concerns into account when making clinical decisions. The explanation for this finding may be related to the relatively large malpractice payments in surgical specialties, especially obstetrics and anesthesia.18
Ethical guidelines from professional organizations set the expectation that clinicians disclose injury due to medical error to patients.19–21 Yet, we found that nearly a third of trainees who had witnessed a medical error resulting in patient harm reported a failure to disclose the error to the patient. Concern over malpractice liability was a common contributing factor in the decision. Our research aligns with prior studies demonstrating that failure to disclose medical errors is not uncommon22,23 and that malpractice liability concern is a barrier to disclosure.24 Physicians may believe that withholding information may reduce their risk of a malpractice suit, but a common reason plaintiffs take legal action is their desire for an explanation of the factors that contributed to injury.25–27 Further, a recent study showed that when patients received an offer for compensation along with full disclosure of medical errors, no increase in total claims or liability costs occurred.28
Our findings suggest a missed opportunity for medical schools and residency programs. Our results indicate that trainees are at least observing, and in many cases being encouraged to adopt, the defensive medicine behaviors that are well documented among practicing physicians. Leveraging efforts to teach the core competencies of professionalism (particularly disclosure as mandated by honesty and integrity), of interpersonal communication, of systems-based practice, and of practice-based learning could begin to reverse this trend. Professional organizations have recently identified a need for increased training in patient safety,29–31 and the Institute for Healthcare Improvement and the World Health Organization have each developed tools to help teach patient safety concepts to trainees.32,33 Incorporating evidence-based research regarding malpractice liability into the developing patient safety curricula is one practical step that may help motivate learners and reinforce sound clinical decision-making skills. Moreover, educators should emphasize the importance of communication skills in reducing risk for medical error and malpractice litigation.25,26,34
Medical educators must also address the informal curriculum, which is heavily influenced by local culture.35,36 Authors of a recent systematic review highlighted the importance of local culture on the success of the patient safety curriculum: The presence of a “safety culture” substantially enhances success, whereas the absence of a “safety culture” greatly undermines effectiveness.37 The Institute of Medicine states that a culture of safety requires three elements: (1) a belief that although health care processes are high risk, they can be designed to prevent failure, (2) a commitment at the organizational level to detect and learn from errors, and (3) an environment that is perceived as just because leaders discipline only when an employee knowingly increases risk to patient and peers.38 In other words, the institutions in which medical students and residents learn must continuously reassess processes of care to identify potential hazards. Encouraging reliable reporting and evaluation in a nonpunitive fashion should be coupled with an institutional disclosure policy and protocols to support physicians during these difficult conversations.39,40 New research now demonstrates that such procedures and policies have a salutary effect on the ethical environment of an institution.41
Our study has several limitations. First, we measured only students' and residents' perceptions of defensive medicine practices; we did not evaluate attending physicians' views or actual behaviors. Possibly, when the rationale for a clinical decision was unclear, a participant may have incorrectly assumed that the decision was made to reduce risk for medical liability. Second, our response rate (60%) was lower than desired despite our sending multiple reminders to eligible participants. We detected no differences in basic demographic characteristics between respondents and nonrespondents to suggest a response bias. Third, we conducted our study in a single institution in an urban area of high malpractice costs. Defensive medicine may be somewhat less common in other academic institutions; however, given the prevalence of defensive medicine reported by practicing physicians in prior research,3,4 we believe it is present and likely informally taught elsewhere.
In conclusion, the medical students and residents who responded to our study reported frequently encountering defensive medicine and being often taught to take malpractice liability into consideration when making clinical decisions. Furthermore, many trainees reported failures to disclose medical error resulting in harm, and concern over malpractice liability was cited as a common contributing factor in this decision. Medical schools and residency programs should seize the opportunity to incorporate discussions of malpractice liability into patient safety curricula and should reexamine patient-safety-related policies and procedures in an effort to reinforce sound clinical decision-making skills and to complement the teaching of effective patient–physician communication.
The authors express their gratitude to Northwestern University Augusta Webster Office of Medical Education staff as well as residency program staff for their assistance in conducting this study. Additionally, the authors thank David M. Studdert, LLB, ScD, for providing the survey instrument on which this study was based.
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Funding support received from the Northwestern University Feinberg School of Medicine Medical Student Summer Research Program.
The institutional review board of Northwestern University provided expedited approval for the study.
This study was presented as a poster abstract at the Society of Hospital Medicine meeting on May 11, 2011.