Litigation leads to defensive medicine

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 keeping, politeness in dealing with patients, clearer communication, and double checking. On the other hand there is concern that doctors are over-cautious. What do you think? Answer the question referring to the development of tort law in the area of medical negligence.

In Tort law a patient may be entitled to redress if they have been injured by a Health Care professional as a result of medical negligence. To successfully prove a case the claimant must prove that: a)The claimant was owed a duty of care; b)the duty of care was breached and c)the breach caused the claimant harm. 1 The fear of malpractice litigation which, in 2006/2007 cost the NHS Litigation Authority i?? 613 million,2 has left many medical practitioners feeling besieged and has been seen to raise the spectre of the practise of 'defensive medicine'.

But what is 'defensive medicine'? Lawton, J in Whitehouse v Jordan3 defined it as 'adopting procedures which are not for the benefit of the patient but safeguards against the possibility of the patient making a claim of negligence. '4 Since 1957 the law surrounding this area has evolved from a paternalistic pro-doctor jurisprudence to one that recognises patient autonomy. Maybe the United Kingdom should recognise a 'no fault scheme' like New Zealand where the negligence of the doctor is irrelevant?

The establishment of the doctor-orientated standard was developed in Bolam v Friern Hospital Management Committee. 5 Bolam was a mental health patient and agreed to undergo electro-convulsive therapy. He was not restrained or given any relaxant drugs and was injured as a result. In assessing whether a doctor breached the duty of care McNair J, asserted that 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

' 6 Therefore the standard of care owed to a patient was seen by the courts a matter for the medical profession to determine with minimal court scrutiny. 7 Objectively, the 'Bolam test' is a paternalist approach as it takes away from a patient's autonomy, a major aspect of which includes the rights of the patient to decide what happens to their own body. The test has permeated many areas of medical law and became the standard by which decisions relating to many areas within medical practice are assessed, as Davies puts it 'when in doubt 'Bolamise'.

8 The case of Bolitho v Hackney Health Authority9 removes the usual 'rubber-stamping' of expert medical opinion and takes a step away from the pro-doctor jurisprudence and sought to correct what Brazier calls an misinterpretation of the 'Bolam test'. 10 The case concerns the failure of a doctor to intubate a child who as a result suffering brain damage. Shifting away slightly from the 'Bolam test' Lord-Brown Wilkinson declared that 'it cannot always be demonstrated to the courts satisfaction that the body of opinion is reasonable or responsible.

If on such a rare case the opinion is not capable of withstanding logical analysis then the judge is entitled to hold the opinion unreasonable. '11 This now enables courts to scrutinise the views of the medial experts to determine, where appropriate, whether or not they deem it to be irresponsible. 12 What is not clear from the judgement is when the court would be prepared to hold that a doctor has breached his duty of care by following a practice supported by a body of professional opinion rather than stating that it would be 'rare'.

It is clear law that part of a practitioner's duty is to give information to a patient so that the patient understands the nature of a proposed treatment. The difficulty is determining just how much information a patient should receive: whether, the curious should be told more than the un-inquisitive or if the doctor has a therapeutic discretion to withhold information. This issue arose in the case of Sidaway v Board of Governors of the Bethlem Royal Hospital.

13 In this case Sidaway suffered pain in her neck and arms and the corrective operation which, even if performed properly, carried an intrinsic risk at 1-2%. 14 Lord Scarman held that the question whether an omission to warn a patient of inherent risks of proposed treatment constituted a breach of a doctor's care towards his patient was to be determined by an application of the 'Bolam test'15 thus emphasising judicial respect to medical opinion and refusing to adopt the American 'doctrine of informed consent' as adopted in Canterbury v Spence.

16 Brown-Wilkinson LJ based the refusal on policy reasons in that he was not prepared to adopt the strict rules laid down in the transatlantic cases as they are objective both as to the materiality of the risk and adequacy of disclosure, this he claims has led to a large number claims being brought against the doctor. 17 Therefore, it could be seen that by allowing 'informed consent' into English law the floodgates to litigation could open and have an adverse effect on doctors to practise medicine defensively.

Only Lord Scarman embraced a modified version of the doctrine, however limiting this to disclosure of a material risk which is one where a reasonable person in the patient's position would attach significance to it. However a doctor still has therapeutic discretion if he takes the view that disclosure of risk will be detrimental to his patient's health. 18 The subsequent ruling in Chester v Afshar19 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.

20 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%21 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. 22 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. 23 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.

24 By following this case Lord Steyn felt able to depart from the traditional principles on causation where policy and corrective justice demanded it. 25 He reaffirmed the significance of autonomy, holding that 'surgery performed without the informed consent of the patient is unlawful. '26 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.