The looming threat of malpractice litigation greatly impacts neurosurgeons, who sometimes take passive or active approaches to try to mitigate their risk of being sued. The debate regarding the necessity and impact of defensive medicine, as it involves neurosurgery, is lively, and draws many conflicting opinions.
recently published “Neurosurgical Defensive Medicine in Texas and Illinois: A Tale of 2 States” by Cote et al. The authors looked at the use of defensive medicine in two states (Illinois and Texas). Defensive medicine occurs when a physician orders or bypasses tests and procedures to mitigate their own risk of malpractice litigation.
“Positive defensive practice” is applied when a physician orders needless or superfluous tests and/or procedures. “Negative defensive practice” applies when physicians avoid sending patients to high-risk procedures.
The authors chose Illinois and Texas because Illinois has the highest reported average neurosurgery malpractice insurance premiums and no cap on malpractice settlements. Further, among the states, Texas has the lowest premiums and limits on malpractice damages. The authors surveyed neurosurgeons in both states and asked them to explain the motives behind their testing and treatment decisions.
Two physicians published responses in World Neurosurgery's Perspectives column. Dr. James Richard Bean pointed out, “It is hard to decide where medical thoroughness and custom end and self-protective physician defensive motive begins.”
Bean also notes, “Survey responses are black or white answers to motives that were shades of gray, and the retrospective nature as well as the defined topic of the survey, invite a revision of complex reasoning to fit a simple purpose.” Furthermore, surgeons’ increasingly defensive use of new technology can lead these technologies to become the standard of care. One author has termed this phenomenon, “intensity creep.”
Evidence also suggests that patients sue physicians who order more expensive procedures less frequently. Furthermore, Bean points out that physicians who order more expensive procedures and tests cost the healthcare system more, but are not necessarily less effective. Bean concludes that as long as malpractice risk exists, defensive medicine will persist.
Dr. Jeffrey J. Segal’s Perspectives piece made a few points that agreed with Bean's. First, Segal highlighted how common it is for patients to sue neurosurgeons. In any year, a neurosurgeon’s likelihood of being sued is 19%. Over the course of a neurosurgeon’s career, the likelihood of litigation exceeds 90%. Segal says neurosurgeons are likely to order additional tests to prevent lawsuits.
Segal argues that defensive medicine is a rational response to lawsuit risk. He argues that the current medicolegal system should be replaced by an administrative model, the Patients’ Compensation System. This system requires an injured patient to file a claim before either a health care expert panel or an administrative law judge. (Patients would no longer file in civil court.) If the panel or administrative judge determined the patient experienced a legitimate injury, the patient would be compensated. The physician would have no action to defend. The physician’s licensing agency would only be notified if health care experts determined, based on a review of the facts of the case, that the physician posed “an imminent danger to the public.” A Patients’ Compensation System is under consideration in 5 states (Florida, Georgia, Maine, and Montana, and Tennessee).