It is often claimed that the fear of malpractice litigation leads to defensive medicine. Although this is a common complaint, it is not quite clear what defensive medicine actually is. Fear of litigation can lead to some good practices: better record keep

        The subsequent ruling in Chester v Afshar  marked a departure from the ‘doctor knows best’ approach in Sidaway and as articulated by Heywood marks the most significant development in this field since 1985. In this case the claimant suffered from severe back pain and was advised to have surgery. Although it was performed properly it resulted in significant nerve damage and left the claimant partially paralysed. The risk of injury was at 1-2% and the claimant assured she had not been informed and that if she had been she would not have had the operation at that time; instead she would have sought further opinions.  The issue for the court was one of causation and finding the causal link between the breach of duty and damaged caused. The law dictates that in order to establish causation it is for the patient to demonstrate, on the balance of probabilities, that had they been given the relevant information about the risks they would have declined the operation. However, the claimant would have had the operation but at a later date. The trial judge found that all she needed to prove was that she would not have had the operation at that time. The House of Lords agreed and sought influence from the Australian case of Chappel v Hart. By following this case Lord Steyn felt able to depart from the traditional principles on causation where policy and corrective justice demanded it. He reaffirmed the significance of autonomy, holding that ‘surgery performed without the informed consent of the patient is unlawful.’ Heywood claims that this case does not come without its dangers and that one can hope the reasoning does not encourage defensive medical practice via excessive risk disclosure.

‘Defensive medicine’ has both positive and negative consequences for public health, not only in terms of the standard of care but also in relation to the rationing of limited resources. Positive aspects include providing more detailed explanations to patients when obtaining consent and more detailed note taking. Negative aspects occur when a doctor prescribes unnecessary drugs, increases testing and avoids certain ‘high-risk’ treatments. The attitudes on whether or not doctors practise ‘defensive medicine’ are divided. Samuels claims that some say we have a compensation culture, the result of which encourages defensive medicine whilst others say that it is all exaggerated and the number of cases of medical negligence is not rising. Tancredi and Barondess are of the opinion that despite the apparent growing importance of defensive medicine there is little empirical evidence about the extent of such practices. Some evidence of fear of litigation could be found in the upsurge of subscription memberships to the MDU.  In 2008 there were 180,681 subscribed members  up from 176,059 in the previous year,  whether this is evidence in support of ’defensive medicine’ is debatable but it does show that doctors are being more cautious. In ‘A study of General Practitioners’, Summerton concludes that GP’s are practicing defensive medicine as 98% of them claim to be making practice changes in response to the concerns of the risk of being sued or having a complaint lodged . Arguably the existence of litigation can harm the relationship between doctor and patient. A doctor may be reluctant to inform his patient how and why an injury has occurred during treatment for fear that in doing so would result in litigation. The Kennedy Report offers there is a duty to tell a patient if adverse events have occurred  and that patients and the public must be able to obtain information as to the relative performance of consultant. With this in mind the NHS has set up a Care Record scheme so patients can review their notes, including referral letters and test results. Keogh is concerned that publishing performance data could lead to the practice of defensive surgery, where high risk cases are avoided. More detailed notes can be viewed positively however, it can also have adverse effects and encourage negative defensive medicine as doctors may become anxious as to what their notes and performance show.

With the Kennedy Report in mind, the CMO conducted a review and published the consultation paper: 'Making Amends,’ which shows inter alias that cases are slow, unfair, expensive, and that the system encourages doctors to practice defensive medicine. The paper aims to offer apologies and explanations to patients who have suffered harm and directs the NHS to reduce risks and ensure safety so that the level of medical error is reduced. The paper sets out proposals for an NHS Redress Scheme that would provide adjudication for clinical negligence claims up to £30,000, without the need for legal proceedings. Capstick has reacted to the paper somewhat critically and claims that the proposals for reform run the risk of increasing the burden on clinicians because the number of claims will increase.  Taking into account the recommendations in the paper the government set up NHS Redress Act 2006 which aims to provide a low cost, quick and genuine alternative to the litigation system. However, Brazier claims it may do no more than to ‘formalise what already happens.’  
          A drastic advance to reform would be to consider a ‘no fault scheme’ as already adopted in New Zealand whereby compensation is awarded to patients after they have sustained injury following a medical procedure, without the need for proving negligence.

Arguments in favour: cases would be dealt with quicker, lower administrative and legal costs; reduced tension between clinicians and claimants  and It would also be easier for the patient to prove as the breach of duty would be superfluous.
Arguments against: It would be far more expensive than the current tort system. In 'Making Amends', the CMO estimated the cost of a no-fault scheme would be £4 billion each year. The breach of duty would be replaced with complex issues of causation; floodgate concerns resulting in a compensation culture, compensation would be set on a tariff basis and finally it would take away all concept of accountability as it does not hold those to account who have been negligent. Arguably, the arguments against ‘no fault’ outweigh those in favour.
 

Doctors are being over-cautious. According to the NHSLA only 2% of the claims they deal with end up in court. The paternalistic approach of the ‘Bolam test’ is very ‘pro doctor’ and makes it hard for claims against a doctor to succeed. The ruling in Chester disregarded the ‘Bolam test’ with regards to risk disclosure to staunchly support patient autonomy and ‘informed consent’. Heywood claimed this could encourage doctors to practice defensive medicine. But is that so bad? Arguably, involving the patient in more detailed explanations as to risks has to be seen as being positive? The ‘Bolam test’ still governs most malpractice claims to establish breach of duty and as stated in Bolitho when a judge would hold medical opinion to be unreasonable would be rare, with this in mind doctors could be seen to have little to worry about.

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