Journal of Forensic and Legal Medicine 80 (2021) 102170

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Journal of Forensic and Legal Medicine

journal homepage: http://www.elsevier.com/locate/yjflm

Clinical practice

The fine line of defensive medicine

Preston L. Williams a, *, Joanna P. Williams b, Bryce R. Williams c
a
University of Lynchburg, Doctor of Medical Science Program, 1501 Lakeside Drive, Lynchburg, VA, 24501, USA
b
Eisenhower Health, 39000 Bob Hope Drive, Rancho Mirage, CA, 92270, USA
c
Palm Desert High School, 74910 Aztec Road, Palm Desert, CA, 92260, USA

A R T I C L E I N F O A B S T R A C T

Keywords: Defensive medicine is a practice that has been utilized by clinicians in efforts of preventing patient dissatisfaction
Defensive medicine and malpractice claims and may be done through either omission or commission. As much as 57% of physicians
SARS CoV-2 pandemic have disclosed that they practice defensive medicine. However, this practice does not necessarily prevent
Medical malpractice
malpractice claims and more importantly, neither does it equate to good medical practice, with some leading to
Medical errors
poor outcomes. Unfortunately, there is a high percentage of malpractice claims lodged against clinicians in both
Clinicians
Moral injury primary care and hospital settings. Specialists such as surgeons, obstetricians, and gynecologists face the highest
Beneficence claims.
Hospitalists In particular, during the SARS CoV-2 pandemic, with new challenges and limited treatment algorithms, there
Alternative dispute resolution (ADR) is an even greater concern for possible bourgeoning claims. Counteracting defensive medicine can be accom­
Communication and resolution programs plished through decriminalizing malpractice claims, leaving physician oversight up to state medical boards and
(CRPs) hospital claims management committees. Additional tort reform measures must also be taken such as caps on
Healthcare institutions
noneconomic damages to ensure emphasis on beneficence and nonmaleficence. Once these are in place, it may
Tort law
well serve to increase clinician-patient trust and improve patient independence in the shared decision-making
process of their treatment, allowing clinicians to practice their full scope of practice without feeling wary of
potential malpractice claims.

1. Introduction recently 57% of physicians screened admitted to practicing defensive

Hospital institutions are confronted with new challenges in the face
of the SARS CoV-2 pandemic, effectively calling for swift implementa­
tion of clinical treatment guidelines for best practices.1 Clinicians
haven’t practiced under such duress in nearly a century since the
Spanish flu. Henceforth, they are grappling with adhering to limited
treatment algorithms for in-patient settings, as stipulated by the Na­
tional Institutes of Health (NIH) and World Health Organization (WHO).
This is compounded by out-patient clinicians who are attempting to
align themselves with colleagues to develop anticipatory preventive and
treatment approaches where guidelines are lacking. The admixture of
such starkly contrasted managed care, calls into question the role of
defensive medicine for clinicians navigating in this vast unknown,
attempting to steer clear of budding perilous malpractice claims.
Despite increased hospital safety measures, evolutionary game the­
ory found a growth in medical malpractice lawsuits from associated
clinical risks which increased physicians’ defensive medicine practices.2
Discouraging estimates vary nationally in the United States, although
medicine.3 The call to prioritizing medico-legal ethics and professional
standards hangs in a balance with patient care and shared-decision
making. This clinical practice article seeks to review defensive medi­
cine and what hospitals and healthcare organizations are doing to
address this precarious matter.
2. Methods
An extensive search query was utilized, analyzing results from
journal articles regarding defensive medicine. A MEDLINE, PubMed,
and Cochrane Library literature search was conducted with search terms
“defensive medicine” AND (“medical malpractice” OR “medical errors”
OR “tort law”). Articles excluded from the results were those that were
not from peer-reviewed journals, editorials, case series, and reports
greater than five years from initial publication.

* Corresponding author. 1501 Lakeside Drive, Lynchburg, VA, 24501, USA.

E-mail address: plwpcom007@gmail.com (P.L. Williams).

https://doi.org/10.1016/j.jflm.2021.102170
Received 11 February 2021; Received in revised form 27 March 2021; Accepted 7 April 2021
Available online 14 April 2021
1752-928X/© 2021 Elsevier Ltd and Faculty of Forensic and Legal Medicine. All rights reserved.
P.L. Williams et al.
3. Discussion
Clinicians are accustomed to operating within multi-level guidelines,
delegating, facilitating, leading, and learning on a continuum of
knowledge and acquired procedural skills. Universally, each clinician
accepts the responsibility to possess and exercise the privilege of prac­
ticing medicine within their scope of practice. In this milieu of evidence-
based medicine, diligently transcribed in electronic health record
documentation, faced with managerial expectations to achieve excel­
lence in care, customer service feedback, billing/coding accuracy, is a
fastidious voice that warns of the unmentionable medical liability if
something hasn’t been done. Contingency plans often arise within a
clinician when faced with thoughts of shame, embarrassment, suspen­
sion, revocation, and a marred reputation following an accusation of
wrongdoing by patients or family, medical errors, and unprofessional or
unethical lapses in judgment. There has been a tendency to overreact
with overdiagnosis of false-positive screening diagnostic results that
inevitably leads to unnecessary surgeries, which may be harmful to
patients.4 Such instances include breast cancer with mammography or
abdominal aortic aneurysm associated with ultrasound.
Critics argue this approach to excessive care is psychologically
soothing or profit-motivated. Clinicians sometimes mask a lack of
confident transparency for the fear of failing to provide a service to a
patient, through inaccurate prescribing or performing unnecessary
procedures in the name of defensive medicine to avoid the grim moral
injury of self-inflicted chastising and professional stigmatizing.4,5 Even
medical students and residents have observed the defensive medical
practice phenomenon in their training, at 94% and 96% respectively,
suggesting a psychological toll on their attending clinicians. This present
clinical model runs the risk of perpetuating the problem.
Unsheathing defensive medicine takes the form of either negative
defensive medicine by omission (something one didn’t do) or shape­
shifts into a positive defensive medical error of commission (something
one did and shouldn’t have or performed negligently).2,4–7 Nearly 60%
of all hospitalists encounter at least one medical malpractice claim
within 15–19 years.8 More specifically, surgeons, obstetricians, and
gynecologists carry the highest liability, with 70% of surgeons facing an
indemnity payment in their career.2 Widespread malpractice claims are
observed from 52% in the primary care setting, while 62% of specialists
faced being named in a lawsuit.9 Combined, these medical liability
claims accounted for an estimated $4 billion in administrative costs
alone, with an additional $5.7 billion in malpractice payouts.6
While this may appear daunting at first glance, consider the monu­
mental levels of malpractice claims that dramatically increased between
the 1960s and 1980s reaching 15 claims out of 100 physicians in a given
year, with a doubling in payouts.10 The previously mentioned resulted in
repercussions of rising medical malpractice insurance premiums and
considerable defensive medical practices throughout the medical com­
munity.4 It wasn’t until 1996 when a landmark publication by Kessler
and McClellan indicated physicians’ care yielded 5–9% lower medical
expenditures following tort reform, which was attributed to reduced
malpractice pressure and damage caps.6,11
To complicate matters further for physicians, health maintenance
organizations (HMOs), the malpractice insurers, legal representatives of
the courts, and legislature, insist clinicians should put their patient’s
needs before their own. The unwarranted assumption by insurers is that
physicians cannot be trusted to advocate and care for patients with
sound unbiased advice. What amounts to an implicit accusation has also
created a deep-seated mistrust between physicians and malpractice in­
surers. Instances show malpractice insurers lobby legislatures and raise
malpractice insurance premiums on physicians using the rationale that
claims are up, yet evidence does not support that under present-day
federal and state tort reforms. The HMOs and physician advocacy
groups may need to collaborate on lobbying the state and federal leg­
islatures, to address unfair malpractice premium pricing schedules, and
implement revised or new guidelines reflected within laws for
2
Journal of Forensic and Legal Medicine 80 (2021) 102170
subsequent healthcare tort reform. This may complement and improve
malpractice spin-off with established state-led caps on damages, short­
ening the statute of limitation, and requiring an affidavit from medical
professionals to reduce frivolous lawsuits by the plaintiffs. Furthermore,
policies were drafted to regulate attorneys’ fees and implement pre-
screening panels to reduce cases that lack merit.12,13 Of the 29 states
that began investing in policies that reflect these aforementioned tort
reforms, California was the first to enact a cap on noneconomic damages
to $250,000 in 1975.14 Recently, investigators found that caps on
noneconomic damages were associated with a decrease in defensive
medicine, increase in physician supply, and decrease in health care
spending, but had no effect on the quality of care.6,14
Despite a clinician’s best intentions on protecting their licenses,
there are still circumstances that place them under the scrutiny of the
courts. A study by Studdert et al. shows how only 2.3% of physicians in a
cohort between 2008 and 2015 had two or more claims but account for
38.9% of the total claims.15 Clinicians with claims against them are
likely to switch either to larger, smaller, or solo practices. If they had
multiple malpractice claims, they were more likely to relocate or even
stop practicing altogether. Within the hospital system, a claims man­
agement committee can assist with processing claims and damage
compensation more expeditiously while also proposing actions to
enhance risk management.16
Additional alternative dispute resolution (ADR) protective measures
include mediation and arbitration services.14,17 While mediation ser­
vices provide de-escalation through persuasive discussions, arbitration
agreements stipulate a patient surrenders formal litigation options to
pursue a resolution from a neutral arbitrator (ie lawyer or judge) with
equitable restitution. Either of these ADR approaches strategically aims
to expand communication and resolution programs (CRPs) to encourage
clinicians and healthcare institutions to openly report errors, diminish
malpractice liability, and minimize defensive medical practices. Simi­
larly, the Netherlands and Sweden incorporated medical disciplinary
boards to serve as an intermediary between patients and physicians
before escalating a complaint to the courts.5 If a complaint of
malpractice is lodged, it will be brought forth for resolution at this level.
This process removes financial hardships that physicians may typically
experience in the U.S. and significantly reduces the level of defensive
medical practices.
Contrast this to places like Italy where they have the highest
malpractice lawsuits at 90%, attributed to a “luxury tax” as a form of
environmental risk, where lawyers thrive in a legal system conditioned
to reward complainants.5 This is a furthermost example of a system that
fails to implement tort reforms, and thus defensive medicine is consid­
erably higher. Interestingly, the U.S. does have a functioning
liability-free healthcare delivery system in the U.S. Army where defen­
sive medicine is nearly non-existent.6 Under safe harbors, there’s lia­
bility immunity for clinicians from malpractice claims by active-duty
soldiers, and recent evidence suggests a 5% decrease for inpatient costs
without compromise to outcomes in patient care.
4. Conclusion
Clinicians need to learn from medical errors without fearing social or
institutional reprisal, especially under the multitude of stressors pres­
ently associated with SARS CoV-2 pandemic. Decriminalizing “mala
praxis” would place the responsibility of physician oversight on hospital
committees, state medical boards, and/or civil courts.18 Chiefly, it pla­
ces a greater emphasis on beneficence, nonmaleficence, and intellectual
accountability to address fundamental ethical and professional matters
facing clinicians in lieu of future necessary tort reform measures.
Conclusively, the practice of defensive medicine is counter-productive,
leading to poorer outcomes with most patients, including Medicare
patients, and reinforces malpractice risks that subvert evidence-based
predictive values.19 Clinicians may now recognize how deceptive
defensive medicine is, how it serves to deteriorate the clinician-patient
P.L. Williams et al.
trust, disenfranchise patient independence in the shared-decision mak­
ing process, and the risks of overarching defensive practices may
outweigh the benefits.18
Declaration of competing interest
No conflict of interest.
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