Face the fear of litigation

Are you afraid of being sued? Do you have sleepless nights worrying about the legal consequences of misdiagnosing a patient?

If you do, then you are not alone – a survey earlier this year found that 67% of GPs in the UK are fearful of being sued. The survey was conducted by the Medical Protection Society (MPS) among 600 GPs. And it seems that GPs’ fears are not without foundation! MPS’s analysis of medical claims shows that GPs are more likely to be sued now than ever before, with 35% of respondents having received a claim and 58% knowing a colleague who has. In fact, UK GPs are twice as likely to receive a claim related to their work this year as they were seven years ago.

The fear of litigation is having serious repercussions on GPs themselves and on their practices. Those GPs who had received a claim stated in the survey that it had an impact on their stress/anxiety (89%), morale (86%), confidence (74%) and health and wellbeing (63%).

When the results of the survey were announced, Dr Rob Hendry, Medical Director at the Medical Protection Society said that GPs were facing immense pressures, including increasing demand, more complex guidance, rising patient expectations and negative media coverage. His message was clear: “If we are to recruit and retain GPs then we must tackle the culture of fear that GPs are currently working in. We must give them back the confidence in their abilities and allow them to do what they do best – providing patients with excellent care.” [1]

Does this matter? What is the impact of this fear of litigation?

The short answer is that it takes a huge toll on the lives of the doctors. A second MPS survey of 600 UK members revealed that 85% have experienced mental health issues, with common issues being stress (75%), anxiety (49%) and low self-esteem (36%). A third of respondents (32%) have had depression during their medical career, while one in 10 (13%) stated they had experienced suicidal feelings. And these feelings have an impact on their day-to-day work with 60% saying that their mental health affects their concentration [2].

How do doctors deal with the situation?

Even though mistakes happen and nobody can be expected to be infallible it cannot be right that doctors have to work in fear of litigation when they must make increasingly difficult decisions in an era of rising patient expectations.

According to a recent systematic review of the literature on malpractice claims [3] the primary causes of malpractice claims are failure in diagnosis (or delay in diagnosis) and medication error. The most commonly cited missed or delayed diagnoses in adults were cancer and myocardial infarction, while in children the main diagnosis issue was meningitis. Wallace and co-workers also examined the literature for possible cognitive causes of misdiagnoses and found that the primary causes were GPs misattributing the symptoms to an ‘obvious’ or readily available diagnosis, and an issue referred to as ‘anchoring heuristics’ where GPs tend to maintain their initial diagnostic decision instead of looking for alternative explanations [3].

Physicians have a number of ways of responding to the fear of litigation. The primary strategy is the adoption of ‘defensive medicine’. We can think of defensive medicine as a doctor’s deviation from his or her usual behaviour (or good practice) in order to reduce or prevent complaints or criticism from patients or their families. Osman Ortashi and colleagues conducted a survey recently to assess the prevalence of defensive medicine among hospital doctors in the UK. 78% of the 202 doctors surveyed reported practicing some form of defensive medicine. The most common form of defensive medicine was ordering unnecessary tests (59%), unnecessary referral to other specialities (55%). Only 9% refused to treat high risk patients, but twice that number (21%) would avoid high risk procedures altogether. Ortashi noted that the NHS has been working for many years to create a blame-free culture in UK healthcare, but the results showed this has not been achieved, with 86% of the doctors in this study believing that they are not working in such an environment [4].

The additional tests and unnecessary referrals that characterise defensive medicine will inevitably add to the overall national costs of healthcare. Ortashi called for further research to more clearly define the cost of defensive medicine to the NHS.

The saddest reaction of all to the pressures of possible litigation would be the gradual draining away of talented doctors from the health system. A 2010 survey of nearly 3000 primary and secondary doctors in Australia found a depressing 33% considering giving up medicine and 40% thinking about retiring early as a result of medicolegal concerns! [5]

To find out more about the cost of litigation see our previous article ‘The law is an ass’: How to avoid clinical negligence.

If you would like to comment on any of the issues raised by this article, particularly from your own experience or insight, Healthcare-Arena would welcome your views.

References

1. Medical Protection Society. 67% of GPs are fearful of being sued by patients [Internet]. [cited 2015 Sep 13]. Available from: http://www.medicalprotection.org/uk/about-mps/media-centre/press-releases/press-releases/67-of-gps-are-fearful-of-being-sued-by-patients
2. Medical Protection Society. 85% of doctors have experienced mental health issues, reveals Medical Protection survey [Internet]. 2015 [cited 2015 Sep 13]. Available from: http://www.medicalprotection.org/uk/about-mps/media-centre/press-releases/press-releases/85-of-doctors-have-experienced-mental-health-issues-reveals-medical-protection-survey
3. Wallace E, Lowry J, Smith SM, Fahey T. The epidemiology of malpractice claims in primary care: a systematic review. BMJ Open. 2013;3(7).
4. Ortashi O, Virdee J, Hassan R, Mutrynowski T, Abu-Zidan F. The practice of defensive medicine among hospital doctors in the United Kingdom. BMC Med Ethics. 2013 Oct 29;14:42.
5. Nash LM, Walton MM, Daly MG, Kelly PJ, Walter G, van Ekert EH, et al. Perceived practice change in Australian doctors as a result of medicolegal concerns. Med J Aust. 2010 Nov 15;193(10):579–83.