Defensive medicine is a deviation from sound medical practice that physicians engage in primarily because they perceive a threat of liability.1,2 Prior research documents that defensive medicine is highly prevalent among practicing physicians.3,4 Defensive medicine practices can be broadly categorized as assurance behaviors or avoidance behaviors.4 Assurance behaviors include the provision of additional services of minimal or no value in an effort to reduce adverse outcomes. Physicians practice assurance behaviors to deter patients from filing malpractice claims and/or to be able to show the legal system that they met the standard of care. Avoidance behaviors include efforts to avoid providing services or caring for certain patients perceived as high risk.
Little is known about defensive medicine as it relates to medical training. Faculty at one academic health center reported increased time writing notes and offering trainees less autonomy as a result of malpractice litigation fear,5 but, to our knowledge, no prior research has evaluated defensive medicine from the learner's perspective.
Medical students and residents often acquire knowledge, refine skills, and form attitudes outside of the institution's formal curriculum. The informal curriculum represents the unscripted, predominantly ad hoc, and interpersonal form of learning that takes place between faculty and learners.6,7 The informal curriculum has a powerful effect on trainees' future practice8 and may support or undermine the goals of the formal curriculum.6,7
Given the prevalence of defensive medicine behaviors among practicing physicians,3,4 we hypothesized that trainees may learn such practices as part of the informal curriculum within an academic health center. In this study, we sought to characterize medical students' and residents' experiences with defensive medicine and to assess whether attending physicians advocate and/or role model the practice of defensive medicine. Additionally, we hoped to discover whether trainees had experienced failures to disclose errors resulting in patient harm due specifically to concerns over malpractice liability.
Setting, study design, and participants
We conducted a cross-sectional survey of fourth-year medical students and third-year residents in medical and surgical specialties at the Northwestern University Feinberg School of Medicine in Chicago, Illinois. We defined medical residency programs as those focusing on the diagnosis and nonsurgical treatment of disease: emergency medicine, internal medicine, neurology, and pediatrics. We defined surgical specialty programs as those focusing on operative or procedural techniques to treat disease: anesthesiology, general surgery, neurosurgery, obstetrics–gynecology, orthopedic surgery, otolaryngology, plastic surgery, and urology.
We based the first portion of the survey on published research involving practicing physicians.4 We asked respondents to rate on a four-point scale (never, rarely, sometimes, often) how frequently concerns about malpractice liability caused their teams to engage in each of four types of assurance behavior: (1) ordering more tests than, (2) prescribing more medications than, (3) referring patients to specialists more often than, and (4) suggesting invasive procedures to confirm diagnoses more often than would be indicated based only on professional judgment. Similarly, respondents rated how often two types of avoidance behavior occurred: (1) avoiding certain high-risk procedures or interventions and (2) avoiding high-risk patients. We also asked respondents who had recently encountered one of the six listed practices to describe the situation(s).
In the second portion of the survey, respondents reported (using the same four-point scale) how often their attending physicians either implied or explicitly stated that malpractice concerns played a role in their clinical decisions. Respondents also reported how often their attending physicians explicitly recommended to trainees that they take malpractice liability concerns into account when making clinical decisions. As in the first section, we asked respondents whose attending had recently explicitly recommended taking malpractice liability into account to describe the situation(s).
In the final portion of the survey, we asked respondents whether they had observed a medical error that resulted in harm to a patient. We also asked them whether teams with which they had worked had ever chosen not to disclose a medical error resulting in harm and whether concerns about malpractice liability played a role in this decision.
A group of 10 medical students and residents who were ineligible for the final survey reviewed a draft version of the survey, and we made minor revisions based on their input. We administered the final survey to all fourth-year medical students (n = 194) and third-year residents (n = 141) during August and September of 2010. We administered the surveys in a Web-based format using an Internet link from SurveyMonkey (SurveyMonkey.com, LLC, Palo Alto, California) delivered via e-mail. We sent nonresponders up to five reminder e-mails. Respondents received no incentive for participating in the study. Participation was voluntary, responses were confidential, and the study had no effect on eligible participants' or respondents' evaluations. The institutional review board of Northwestern University provided expedited approval for the study.
We obtained demographic information and e-mail addresses for eligible medical students from the Northwestern University Feinberg School of Medicine and for residents from their respective program directors. We compared demographic characteristics for respondents and nonrespondents using chi-square and t tests. We assessed the frequency of each type of assurance and avoidance behavior among respondents and used chi-square tests to compare medical and surgical residents' experiences with each type of behavior. We also determined the respondents' perceptions of both the frequency with which attendings implicitly or explicitly consider malpractice risk when making clinical decisions and the frequency with which they explicitly recommend that trainees do the same. Finally, we calculated the number and percentage of medical students and residents who reported observing an error resulting in harm, the number and percentage indicating a failure to disclose the error, and the number and percentage reporting that malpractice liability concerns played a role in the decision. We conducted all analyses using Stata version 10.1 (College Station, Texas).
Characteristics of participants
Overall, 202 of 335 (60%) eligible respondents completed the survey, including 126 of 194 (65%) medical students and 76 of 141 (54%) residents. The mean (standard deviation [SD]) age of the responding students was 25.9 (2.1) years, and the mean (SD) age of the responding residents was 28.9 (2.2). Of the student respondents, 67 (53%) were women. Of the resident respondents, 38 (50%) were women, 27 (36%) were enrolled in a surgical (as opposed to medical) residency program, and 17 (22%) had attended Northwestern University Feinberg School of Medicine. We detected no differences between medical student respondents and nonrespondents in age or gender, nor any differences between resident respondents and nonrespondents in age, gender, residency program type (surgical versus medical), or medical school (Northwestern versus other). Not all respondents completed every question, so the denominators for some findings presented below may be lower than the overall number of student and resident respondents.
Clinical and educational experience with defensive medicine
Nearly all participants reported sometimes or often encountering at least one of the six types of defensive medicine practices (Table 1). Respondents reported encountering assurance behaviors more often than avoidance behaviors. Of the responding medical students, 119 (94%) indicated sometimes or often encountering one or more defensive medicine practices; 116 (92%) reported at least one experience with an assurance practice, and 43 (34%) reported an avoidance practice. Of the responding residents, 73 (96%) indicated sometimes or often encountering one or more defensive medicine practices; 73 (96%) reported an experience with an assurance practice, and 33 (43%) reported an experience with an avoidance practice. We detected no statistically significant differences between medical and surgical residents in their experiences of assurance practices. More surgical residents reported experiencing avoidance practices compared with medical residents. Among the assurance behaviors, respondents of all types reported that ordering more tests than medically indicated was especially common, whereas suggesting invasive procedures to confirm diagnoses occurred less frequently.
In Table 2, we have summarized the frequency of attending behaviors related to clinical decision making and defensive medicine as reported by trainees. Just under half of the medical students (53 of 121; 44%) and well over half of the residents (41 of 68; 60%) reported that attending physicians sometimes or often explicitly stated that malpractice concerns play a role in their rationale for making particular clinical decisions. Nearly two-thirds of the students (78 of 121; 64%) and three-quarters of the residents (51 of 68; 75%) reported that their attending physicians sometimes or often implied that malpractice concerns play a part in their clinical decision making. Overall, 41% of medical students (50 of 121) and 53% of residents (36 of 68) reported that their attending sometimes or often explicitly taught them to take malpractice concerns into account when making clinical decisions. A greater percentage of surgical residents than medical residents reported that attendings often explicitly taught them to take malpractice concerns into account (75% versus 41%; P = .007). Examples of participants' recent clinical and educational experiences with defensive medicine are reported in List 1.
Disclosure of adverse events and perceived risk
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.
Discussion and Conclusions
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.© 2012 Association of American Medical Colleges