Presented at the 11th Annual Medical Law Conference - April 2010.

Defensive medicine is bad medicine. It is bad for patients, bad for
doctors and ultimately, bad for communities and society. Defensive medicine is
found when doctors change their usual practice not because it will benefit the
patient, but because they believe that they will be protected against a
complaint. My thesis in this presentation is that defensive medicine is a
product, an undesirable outcome of the complaints process in New Zealand, because
the process is based on a way of understanding the practice of medicine that is
out of step with the notion of patient-centred care that underlies modern medical
practice.

This presentation is about defensive medicine in New Zealand-
essentially it is about the types of responses that New Zealand doctors make
when faced with a complaint, or even perceiving themselves to be faced with a
complaint. This discussion is predicated on the notion that one of the purposes
of the complaints process is to deliver better health care to society, and I
want to challenge this notion in this address and to make some recommendations
that might be helpful.

However, in order to understand why doctors might change their practice towards
defensive medicine, we need to consider some ideas about the underlying rules,
assumptions or philosophy of medical practice and where that belief system is shared
by both medicine and society. Understanding this philosophy of practice is key
to understanding how complaints are appraised by doctors, how complaints impact
on their practice of medicine and how these responses might be changed to
reduce the emergence of defensive medicine as a response to complaints.

The argument that I will advance in this presentation is that although
doctors use what is now known as a patient-centred model or paradigm, when
faced with a complaint they appraise their practice using a biomedical paradigm,
as does the complaints process itself. Judged by themselves or others to have
failed, doctors internalise this failure and experience shame- a ‘global
attribution of failure’ (1). It is this shame response that drives changes in
attitude towards patients and changes in practising behaviour. In contrast to
writings from researchers in countries using a tort-based system, I do not
believe that defensive medicine is driven by the external environment as much
as it is driven by an internalised response within the doctor. The way forward
is to recognise this internalisation, think of it as ‘maladaptive learning’ and
put systems in place to use a complaint to allow doctors to practice better
medicine, and actually improve the delivery of health care.

What I would like to initially present is an overview of the
philosophical basis of medical practice, and to have these thoughts as a
background for considering the evidence for defensive medicine and then what
changes one might consider implementing.

For most of the twentieth century, biomedicine was the underlying
paradigm or belief system of medicine. Biomedicine is about disease. Biomedicine
essentially states that “a detached
observer (in this case the doctor) by applying correct medical understanding –
that is history taking, examination and investigation- can know the best way to
treat their patient’s disease”. Biomedicine is focused solely on disease-
its cause, the characteristics of the organ involved, and treatment of that
organ, rather as if the body of the patient is a machine and the doctor is a
mechanic, fixing the broken part.   

The biomedical approach underpins medical teaching, research and
practice, and it is an incredibly useful notion. It has shifted medicine from
the witchcraft of earlier times into the modern scientific era and is
responsible for the major medical advances in diagnosis and treatment that we
now almost take for granted. However, there are key words such as ‘detached’,
‘correct’ and ‘know’ in this definition of biomedicine that are also problematic.
However, before I use these words to critique the validity of biomedicine as
the paradigm by which doctors and lawyers may understand medicine, let us first
consider some statements that must be true if this belief system is valid.

You might like to think about your own personal or vicarious experience
of being sick and seeking help when you consider the truth or validity of
biomedicine. These rules are derived from Ian McWhinney’s critique of
biomedicine (2).

1. Patients
   suffer from ‘diseases’ that can be categorised in the same way as other
   ‘natural’ phenomena.
2. A
   disease can be viewed independently from the person who is suffering from
   it and from his or her social context
3. Mental
   and physical diseases can be considered separately
4. Diseases
   follow a defined clinical course, that is altered by medical intervention
5. The
   doctor’s effectiveness is independent of gender or beliefs
6. The
   doctor is usually a ‘detached neutral observer’
7. The
   patient is usually a ‘passive recipient’ of the prescribed treatment (I
   like to add ‘a grateful passive
   recipient…’ but my colleagues think I’m just being cynical!).

 

Clearly there is a degree of truth in these statements, and in some
cases there may be nearly the complete truth if one isolates a very specific
medical situation. However, these rules do not encompass the idea of the person of the patient or the person of the doctor in the delivery of
care. More importantly perhaps, biomedicine fails to grasp the notion that all
healing (which is about being made whole, and is about the nature of suffering
and is not just about the cure of a specific disease) happens in the context of
a relationship- be that relationship for example, between parent and child,
between spouses or partners, between a person and their God, or between doctor
and patient.

It was recognition of the incompleteness of the biomedical paradigm that
gave rise in the latter part of the last century to the ideas of
patient-centred medicine. Patient-centred medicine does not seek to replace
biomedicine, rather to incorporate it into an enlarged or expanded way of
understanding how patients experience illness and how doctors can focus on patient
suffering as their primary goal.

Patient-centred medicine recognises that there is no truly ‘detached’
observer. The doctor, by way of their relationship with the patient, enters
into the therapeutic process. It enables the doctor to explore the patient’s
illness experience rather than separating the disease from the person of patient
who is burdened by it, from the context in which that care is delivered, and to
negotiate a plan of management with the patient, respecting patient autonomy
and avoiding a paternalistic approach.

Patient-centred medicine recognises the place of the person of the
doctor in the practice of medicine and in the context of this discussion,
challenges the notion that a complaints process can ever be considered purely from a disease-based perspective. It
challenges the idea that it is possible to define a ‘correct’ way to practise without
considering both the person of the patient and the person of the doctor and
even more fundamentally, that it is possible to ‘know’ how to practise without
cognisance of all of the factors involved in the delivery of care to that
particular patient.

What I am going to suggest is that the evidence for doctors responding
to complaints by practising defensive medicine indicates that the complaints
system is rooted in biomedicine and that biomedicine remains the ‘fall-back’ or
‘default’ setting for making a complaint and judging a doctor’s practice. Because
both doctors and the complaints process choose the narrow biomedical paradigm,
the complaints system risks failing society because it is not capable of
addressing issues in greater depth other perhaps, than systems error. The
problem is not that there is a complaints system; the problem is the belief
system that doctors, lawyers and policymakers use to initiate, respond to, and
judge complaints.

What I will now present is evidence of the impact of complaints on doctors
in New Zealand and of the types of defensive medicine that have emerged in
response.

Research
that I conduced in the late 1990s indicated that doctors responded to
complaints in both an intellectual and an emotional way, concurrently, and
neither necessarily in proportion to the severity of the complaint. The
intellectual response was based on biomedicine, and was usually a line-by-line
analysis of their practice based on the history, examination, investigation and
treatment of the patient’s condition. Generally doctors conducted this analysis
alone, and usually the only external reviews that doctors were able to consider
were those of the experts asked to review the complaint. One must ask; what is
it about the ‘culture’ of medicine that doctors are so isolated, or that they behave
as though they are? 

Between
2003 and 2006 I published a series of papers (3-6) reporting the results of a
survey of New Zealand doctors looking at the impact of complaints, and of
in-depth interviews looking specifically for evidence of defensive medicine.

I looked at the emotional responses to a
complaint and considered whether they were transitory or persisted. Responses
fell into two groups- impacts on the person of the doctor and impacts on the
doctor patient relationship.

In the first few days, and up to 6 weeks,
after receiving a complaint, large percentages of respondents reported experiencing
feelings of anger and depression. Nearly 40% had reduced levels of enjoyment of
the practice of medicine, and about a third felt guilty or shamed. In the long
term, the impact of a complaint softened, although over a third of respondents remained
angry and one in ten reported still having feelings of depression, guilt, shame,
and experiencing loss of joy of practice.

On the doctor patient relationship, receiving
a complaint reduced trust and goodwill and commitment towards patients. In the long term this persisted quite significantly
with one in ten doctors indicating long term reduction in their sense of commitment to
patients.

In terms of the ways in which doctors
practised in the immediate period after receiving a complaint, respondents
indicated that their ability to tolerate uncertainty was reduced, they had
reduced confidence in their clinical judgment and again, these responses
persisted into the long term.

But what of
defensive medicine?

Defensive medicine has been defined as: “deviations
from what the physician believes is … sound medical practice” (7) and “medical
practice decisions predicated on a desire to avoid malpractice liability,
rather than a consideration of medical risk benefit analysis (8).

Defensive medicine may be either
positive or negative. Positive defensive medicine is expressed in
increased use of resources, both to reduce the risk of receiving a complaint
and to increase doctors’ ability to defend one. One might think of this as
‘augmented or extra’ medical practice. Negative defensive medicine relates
to the withdrawal of medical services. Doctors may cease providing care where
they believe that particular areas of work, kinds of patients, or particular
diseases place them at greater risk of receiving a complaint. One might
think of this as ‘diminished, inhibited or contracted’ medical practice. Defensive
medicine is different from “defensible practice” that is good, humane practice.
Defensive medicine is not. 

I looked for evidence of defensive medicine in New Zealand doctors
practising in a system that it not tort-based. Intuitively, one might expect
that receiving a complaint that generally carries a low risk of financial
liability to the doctor might result in a different pattern of behaviours from
doctors working in a more litigious environment.

Research from the United States, the United Kingdom and Australia
indicate that positive defensive medicine such as increased referrals, test
ordering, and prescribing are all responses to litigation although there are difficulties
in isolating defensive medicine as an independent driver when measuring any
particular decision making cost (9).

The characteristics of defensive medicine reported by New Zealand
doctors are:

Positive defensive changes related to the
following:

• Increased investigations- increased rates of investigation were linked
to perceived reduction in confidence, reduced ability to make decisions, and
patient pressure.

“I
think I actually expose kids to risk more. I’m less willing to say ‘in my
clinical judgment I do not believe it is worth this investigation or that
test’. In other words not only will I spend money, health dollars, on testing,
but I will also put kids through painful and potentially risky procedures in
order to satisfy parental concern”. Specialist paediatrician-
Base Hospital

• Increased referrals and admissions- General practitioners and general
registrants saw this as a way of reducing the complaint risk posed by their
patient.

• Pre-emptive identification of problem patients-Respondents indicated that they actively
attempted to identify likely complainants, based on their sense (and that of
their staff) of the quality of the doctor-patient relationship. Having
identified such patients, they tried to minimise their responsibility for
patient care by referral, or if this was not possible, by over-investigation,
over-documentation, or over-consenting.

• Excessive documentation and consenting- Consultation notes were seen as the
only evidence of the doctor-patient relationship and the quality of medical
practice. Respondents recognised the uselessness of excessive note-keeping in
some situations where, for instance, complaints were about a diagnosis they did
not even suspect. Changes in consenting and documentation were also linked to
efforts to identify and protect against likely complainants.

• Time
and workload issues- some respondents extended their consultation
times and tried to reduce their workloads to reduce their complaints risk.
However, closer supervision of junior colleagues actually resulted in increased
workloads for some working in hospitals. Doctors were quite challenged to
manage the demands of attending to multiple patients in limited time frames.

Negative
defensive medicine changes.

Most negative defensive medicine changes
were specific to each complaint’s circumstances. Respondents indicated stopping
practice in fields such as obstetrics and intensive care, and shifting from
either rural or urban practice. They reported withdrawal from working with
patients with particular conditions.  

“I
stopped seeing children who had been sexually abused over that time, and it
left an absolute sour taste in my mouth in relation to continuing to look after
children with that issue. I haven’t assessed children with those issues since”. Specialist paediatrician- Peripheral hospital

The main non-specific negative defensive
response was to withdraw from caring for patients who the doctor thought posed
increased complaints risks.

Some responses to complaints reflected
good practice. Complaints encouraged reflection on practice, closer
professional adherence to societal expectations and the detection, and remedy of
systemic error.

Making the links

So what we see is that there is good evidence that complaints impact on
the person of the doctor, on the doctor-patient relationship and the way in
which doctors practise, including the emergence of defensive medicine. It seems
that the responses we find in New Zealand doctors are very similar to those of
doctors practising in tort-based legal systems. But why should this be, and how
do these findings link to ideas around the underlying belief systems of
medicine? I think that the answer lies in the notion of shame.

Although it is variously defined, shame is characterised by a desire to
run away, to hide, to disappear or to withdraw. It is an internalised emotional
response to an actual or perceived assault or threat to one’s sense of self. It
is different from humiliation or embarrassment- these are experienced in the
presence of others. Shame is fundamentally an emotion that results from what
has been described as a “global attribution of failure” (1). That is, some
judgement of failure is made- either by the person or by someone else, and the
person believes that they themselves are a failure. Shame is different from
guilt, and may be described by the difference in emphasis between “I did that terrible thing” (shame) and
“I did that terrible thing” (guilt).

We have seen that doctors respond to complaints with depression or
anger; both of which are found as responses to the underlying emotion of shame.
My thesis here is that doctors tend to respond with shame rather than guilt
when they are accused of or judged to have failed. The judgement may have come
from the complaint itself or from the doctor’s own analysis of it, and here
lies the problematic link with the use of biomedicine.

Because the underlying ‘rules’ of biomedicine are based on an ‘external
truth’ out there to be discovered by doctors (as scientists), then one can
almost always make a distinction between 
‘good’ and ‘bad’ practice, the correct diagnosis or therapy versus the
wrong one and so on. Biomedicine virtually guarantees the possibility of
judgement. In the real world however, medical practice is almost never perfect
or out of the textbook; and this is especially true of most things in life that
involve human interactions. And that is the problem with biomedicine. By
considering the disease independent of the person of the patient, the person of
the doctor and the doctor-patient relationship, judging practice by the
standards of biomedicine will almost always find that the doctor has fallen
short of the mark. The problem is that the self of the doctor is closely linked
to ‘being’ a doctor, and that a judgement of failure will be seen by the doctor
to be a failure of self, and this risks inducing a shame response and its’
inevitably damaging sequelae.

What we see in the ways in which complaints impact on doctors, is that
being shamed, doctors act to try and reduce the likelihood of that same thing
happening again, or to be better able to defend themselves. They use the
default setting of biomedicine, ignoring the shades of grey of practice, and
(mistakenly) polarise their practice as though it only existed in a dichotomy
of black or white. Such behaviour is, in my opinion, frankly unprofessional,
but professionalism exists only in a state of relationship with society. The
complaints process is one of the points of contact between the medical
profession and society, and forms part of that relationship. The responsibility
then, for addressing these issues lies with both the profession and society.

But to what purpose? This discussion as I mentioned earlier, is
predicated on the notion that one of the purposes of the complaints process is
to deliver better health care to society. Clearly there are many other purposes
but if complaints are to be used as “a ‘window of opportunity’ to improve
health services” (10) it is essential that the complaints process minimises any
adverse outcomes on doctors’ practice.

How then, can the complaints system be used with the three things that can
go wrong in medical practice? These are mistakes, medical error, and
wrongdoing.

Mistakes are about systems, are well suited to methodical external
review and individual clinicians are only rarely responsible for what has gone
wrong. Often there are multiple points in the process of care that could be
improved on, but triggering the review may be dependent on an end point of
adverse outcome. However, complaints that trigger systems review may have
considerable utility in improving health care delivery.

Wrongdoing is simply about badness- Harold Shipman as an extreme
example- but again the complaints process is dependent on the recognition of an
adverse outcome or deficiency before it is triggered.

The real problem though, is medical error. It is about the practice of
medicine, how doctors ‘know’ how to practice and when their practice is at
fault. The challenge is how to use a complaints system to actually improve
practice by reducing medical error.

We know that doctors react to complaints with both intellectual and
emotional responses. Although I used to consider these separately, I think that
the induction of an internalised shame response is the common link that
overwhelms a doctor’s emotions and colours his or her ability to correctly
appraise the complaint and allow a more appropriate intellectual response to
change their practice in the direction of ‘better practice’. It would seem
then, that a good starting point would be to minimise the shame response and
put the failure ‘out there’, allowing error to be corrected.

How to do this?

Improved openness about the impact of complaints, and increased
resilience to complaints is integral to effecting improvement. And it is not
just complaints. Openness about acknowledging adverse outcomes as part and
parcel of medical practice is essential in changing the culture of medicine
that seems to have doctors responding to perceived failure in isolation, in
shame. Changes in the early undergraduate medical school curriculum introducing
these ideas have already been made. In addition, doctors need appropriate
psychological support in times of stress, and the development of the
counselling service by Medical Protection Society and Medical Assurance Society
over the last three years has been shown to be both acceptable and useful (11).

What has not been utilised is the idea that a complaint can be a way of initiating
learning. In my opinion this demands a coordinated and rapid response by the
profession in each of its disciplines, to assist doctors when they receive a complaint.
Having received a complaint, each doctor needs to sit down with a trusted
colleague with protected time to review the complaint in that particular
practice context and in the context of that particular doctor-patient
relationship. Sharing the critique of the doctor’s practice with competent
colleagues is needed to address the intellectual response to the complaint, to
appropriately assess the biomedical factors involved and mitigate the effects
of the shame response. Such an approach would significantly reduce the dependence
of doctors their own intellectual appraisal of their practice and on the
reports of expert advisers who are prosecuting or defending the complaint.

By attending to the shame-based responses of doctors to receiving a
complaint the sort of maladaptive learning that leads to the bad practice of
defensive medicine might be reduced. The potential for complaints to be a
‘window of opportunity’ to improve health services might be realised and the complaints
system might then serve society by actually improving how doctors practice.

 

References:

1. Lewis M. Shame: the exposed self. New York: Free Press
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2. McWhinney IR. In: A textbook of family medicine. 2nd
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   Published online 27 March 2010.
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