Don't Be So Defensive

November 15, 2005

Ordering too many tests? Avoiding problem patients? Here's how to find the right balance in these litigation-happy times.

Icy relationships with patients can increase your malpractice risk and cause you to practice defensive medicine.

Elaine: You are not going to believe what happened to me at the doctor's office today.
Jerry: Not the gown again.
Elaine: No, no. I was looking at my chart and it said I was difficult. Why would they write that?
Jerry: They have gotten to know you.

No doubt you have run into your share of "Elaines" over the years - difficult patients who, say, refuse to wear a gown (as Elaine did), or act in ways that seem in inappropriate, quirky, even scary.

Do you treat them differently, thinking they might sue you?

Maybe you do too much for them, or maybe you act in ways that you hope will prompt them to leave your practice. If so, you are practicing defensive medicine.

And you are not alone. Some 93 percent of physicians told researchers in a recent Columbia University-led study that they had practiced defensive medicine.

The study - one of the first to examine the impact of defensive medicine on clinical practice - revealed a little-known phenomenon: even as society is encouraging patients to be more assertive and involved in their care, patients who act this way may be receiving poorer care, as a result of defensive behaviors on the part of the physician.

Defensive medicine adds an estimated 10 percent to 20 percent of costs to the nation's already bloated healthcare system. But the problem is not purely financial. Access and quality of care are also compromised, and the doctor-patient relationship deteriorates.

Fear of malpractice litigation and spiraling malpractice insurance premiums contribute to this situation. You can't fix the malpractice crisis. But you can avoid being sucked into the defensive medicine trap.

Begin with a better understanding of what constitutes defensive medicine, learn what sort of patients may trigger you to overtreat or undertreat them, and increase your awareness of the reasons you are ordering those expensive, perhaps risky, tests. Ultimately you will strengthen your bond with your patients and reduce your chances of being sued.

Defining Defensive Medicine

The Columbia study defined defensive medicine as "a deviation from sound medical practice that is induced primarily by a threat of liability."

In May 2003, coauthor William M. Sage, a physician and law professor at Columbia, and his colleagues surveyed more than 800 Pennsylvania physicians who practiced emergency medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology, and radiology.

Defensive activities common across all specialties (except radiology) included ordering more tests or prescribing more medications than medically necessary; referring patients to specialists in inappropriate circumstances; suggesting invasive procedures to confirm diagnoses; avoiding certain procedures or interventions; and avoiding caring for "high-risk" patients.

Pennsylvania physicians were surveyed because their malpractice climate is particularly brutal: several insurers have left the state and premiums have tripled for some physicians. Sage thought the state would produce the most "dramatic" finding. Even so, he was shocked by the conclusions.


"I was surprised by the high prevalence of defensive medicine and by the specific stories the doctors told us," Sage says. "We asked, 'If you are in practice, what was the last [defensive] thing you did?' We got a lot of physicians writing things that must have been hard to write. It's hard to say, 'This patient came in and I didn't take care of them.' I was surprised by the degree to which defensive medicine seemed to affect the physician-patient relationship, especially with new patients."

He adds these findings are probably "representative of doctors in private practice in high-risk fields generally. It would surprise me if this were unique to Pennsylvania or insurance crisis states."

The results are troubling. "If the docs you turn to for the most acute problems are those who are reluctant to enter the fray and perform the way you want them to, then the system will break down," says Sage.

Of particular concern is the potential harm to patients from unnecessary invasive procedures. More than 60 percent of the surveyed physicians (excluding neurosurgeons) said they performed or ordered
invasive diagnostic procedures that they believed held little merit. Most often these took the form of breast biopsies that were ordered "for defensive reasons."

"Women concerned about breast cancer are very adversely affected by defensive medicine. We saw a constant, escalating pattern of invasive testing and procedures," Sage says.

He hopes the findings cause women's groups, public health officials, and quality organizations to "figure out if there is a reliable, consistent way of diagnosing and following breast masses in women and to [make] sure that legal concerns don't interfere with doing it the right way."

In addition, younger patients who went to an orthopedist or to the ER complaining of musculoskeletal pain were being aggressively - and inappropriately - screened for possible cancers, Sage says.

Sage's study concluded that certain types of patients prompt physicians to act more defensively, namely those who are seen as "demanding, emotional, or unpredictable."

"It has become fashionable to get patients involved in their own care," Sage says. "But we did see that that has led to a mixed response. They were placated, rejected, and denied care."

Building a Trusting Relationship

But it is not always easy to know if you are practicing defensively, says Richard Roberts, former president of the American Academy of Family Physicians.

"The problem is that every procedure, potentially, has benefit. And therein lies the rub," says Roberts, who practices in Wisconsin. "Many people think it is like an on-off light switch - this is defensive medicine, this isn't. But it is a balancing act. You have to decide at this moment in time, is it worth it? Not just in terms of the scientific benefit but also, is it worth it in terms of the patient's values?"

Roberts begins to develop a relationship with new patients immediately, asking them when he enters the room how they would like to be addressed. He then reviews a series of expectations that he has for patients, and asks that they outline any they have for him. He tells patients, "I need to know you, and trust you to do the things that I need you to do. I need to be in the loop if you see other physicians."

Physicians can rely on guidelines to help inform their treatment choices, but these must be tempered with an understanding of the patient's goals.

Says Roberts, "We look our patient in the eyes, and we get a sense of what is of value to this person, what is important. Will a trusting relationship cure all ills? No, but it will get you closer. You still have to practice smart medicine and be service-oriented."


Patients sometimes end up with inappropriate treatment because the physician makes assumptions about what they want. But the physician may not have fully explained the possible risks and benefits, Roberts says.

"All physicians have a predilection to do things. That's what we are trained to do. Doctors tend to overstate the benefits of treatment, and patients tend to overstate the harm," he says. Roberts also believes that physicians should not be afraid to share with patients their uncertainty or equivocation about options, and should be "brutally honest" about side effects and other possible consequences.

An 'Elaine' in Your Office

Since difficult patients increase your likelihood of practicing defensively, you need to know how to handle them. You can view difficult patients in one of two ways, says Robert Steele, an internist/oncologist in Kokomo, Ind.

"On the one hand, some patients want expensive tests that clearly aren't indicated, often because a friend just had a serious problem discovered by a given test," Steele says. "On the other hand, I tend to believe a patient knows their own body and if they request something that is fairly reasonable I'll almost always do what they ask."

Steele adds: "It is very, very difficult to defend a case where the patient has been requesting something and the physician has denied it over and over and then it turns out the test would have been life-saving if done when first requested. It's particularly devastating if it turns out the patient was on a capitated insurance plan and it looks like the doc just didn't want to pay for the test."

A difficult patient may be hard to treat because "they present themselves in a way that I feel devalues my role, or in a way that feels confrontational," says Roberts.

Such a patient might come in with a wad of printouts from the Internet, which might provoke a bad reaction. "That doesn't [anger] me at all. It might have earlier in my career," Roberts says. "What I have tried to do to keep from being angry about this is to think of it in a different way. Why do people do this? They are worried, they might have had a bad experience, they are frightened of losing control - even if they are acting clumsy or not acting in their own best interest.

"What I always do is say, 'Thanks for bringing that in.' If it teaches me something about them, what makes them tick, then the experience is valuable."

Sage calls for some reflection as a first step toward combating these behaviors.

"We have this litigation issue ... next time we have an assertive patient, let's think about it rather than tense up. Let's understand the dynamic" before acting, Sage says.

A Little More Defensive Medicine?

Steele, who has been an expert witness for plaintiffs in malpractice cases, argues that there are times when a bit more defensive medicine should be practiced - namely chest X-rays for "smokers with any kind of lower respiratory symptoms" and colonoscopies.

"I'm just amazed at the number of cases I've seen where docs have listened to patients, especially smokers or former smokers, who have been coughing for months and yet don't do a chest X-ray," Steele says. "The issue of screening chest X-rays in smokers is a can of worms right now, but patients with symptoms aren't getting 'screening' X-rays; they're getting diagnostic X-rays."

Unexplained rectal bleeding is another red flag that Steele says is too often ignored.


"I see an inordinate number of cases where rectal bleeding is blamed on hemorrhoids and no diagnostic workup is done to rule out a more serious cause such as colon cancer," he says. "Any patient with blood in their stools who hasn't had a colonoscopy in the last three to five years should be scoped. Even if they are bleeding from hemorrhoids, it's a great way to see if they have any preneoplastic polyps."

The best defensive medicine "is good charting, including what you are thinking," Steele says. "For example, if you're not getting the chest X-ray the patient wants, why not? It needs to be in the chart contemporaneously, not in your deposition after you've been sued."

Finally, follow the recommended guidelines for annual screenings. Too many malpractice cases that Steele sees are the result of docs "who don't do any regular health maintenance like breast exams and mammograms, prostate specific antigen tests and digital rectal exams, cholesterol testing and treatment.

"Physicians should have a system for making sure that patients get what is now called an age-appropriate exam, which, depending on the age of the patient and sex of the patient, includes these tests," Steele says.

Theresa Defino is an editor for Physicians Practice with more than 15 years' experience covering economic, legislative, and clinical aspects of healthcare. She can be reached at tdefino@physicianspractice.com.
This article originally appeared in the November/December 2005 issue of
Physicians Practice.