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GPs fear proof change will lead to defensive medicine

By Emma Wilkinson

In the run-up to the 2004 presidential election, George W Bush estimated that defensive medicine was costing the US economy up to $100 billion. It was also, he said, driving a wedge between patients and doctors.

At the heart of the problem is 'out of control' medical litigation, with the fear of being dragged through the courts prompting doctors to base clinical decisions on the need to watch their back rather than for the patient's best interests.

There are many factors contributing to the problem, but the fact that the civil burden of proof 'on the balance of probabilities' is used in the US in cases relating to a clinician's fitness to practise certainly has an effect.

Making this change here, as Chief Medical Officer Sir Liam Donaldson is proposing, will lead to defensive medicine being practised on the same scale in the UK, experts are predicting.

Anecdotal evidence already shows that where there is intense scrutiny of doctors' actions, there is more caution.

South Manchester coroner John Pollard told Pulse last week that inquests had rocketed in the past decade because GPs were increasingly reluctant to sign death certificates.

Some GPs have also vowed not to prescribe controlled drugs because of the post-Shipman climate of suspicion surrounding doctors.

If doctors in future face the prospect of tribunals making a decision which could end their career using the 'balance of probabilities' standard, the risk is that averse behaviour will grow further.

Professor William Sage, chair for faculty excellence in law at the University of Texas in Austin, and an expert in health law, says the problem of health care which is motivated by the avoidance of liability rather than by benefit to patients is 'extraordinarily important'.

Hew says: 'It is a legitimate concern if legal standards for questioning practice decisions are relaxed.'

Professor Sage warns the biggest potential threat to the NHS from increasingly defensive medicine would be the cost and availability of diagnostic services.

His research has found high levels of what he terms 'assurance behaviour' among doctors in the US.

Some 59 per cent of physicians admit often ordering unnecessary tests, 52 per cent often make unnecessary referrals. A sizeable minority prescribe unnecessary medication or carry out inappropriate invasive procedures.

Professor Sage says: 'In the US, diagnostic tools, particularly imaging, are the most common form of defensive medicine.

'A system that controls imaging technologies directly would have to modify those controls to take account of increased demand for defensive reasons, which would make it harder to expand access to those services generally.'

Professor Page's research is supported by surveys done by Dr Nicholas Summerton, senior lecturer at the University of Hull and a GP in the city.

He asked UK GPs how they would practise when faced with the likelihood of a complaint.

Around 70 per cent of GPs questioned said they would be likely to increase their referral rate, follow-up, and diagnostic testing rates (see box above).

Dr Summerton says defensive medicine is already on the increase, even before changes to medical regulation. 'If we don't get a grip on this we'll end up in a substantial mess.

'The problem with diagnostics is that we can end up doing a lot of harm. It's harmful to patients and the health economy.'

Professor Richard Baker, the GP academic who revealed the scale of Harold Shipman's crimes, is more sceptical about whether weakening the standard of proof would lead to an increase in defensive medicine.

The issue is very complex, he says, and we don't yet know

exactly what the impact could be. 'We are obviously going to want to err on the side of protecting patients, but we have to look for the most reasonable balance.'

Professor Baker, director of the department of general practice and primary health care at the University of Leicester, adds that he can understand GPs' fears, but that perceptions of the risk of litigation or complaints are not in line with what is happening in practice.

He says: 'There has been

a misunderstanding about what is being proposed and there is an inaccurate perception of the risk.'

GPs, however, feel they understand all too clearly what the proposals mean and how the risks will increase.

Dr Christopher Seward, a GP in Lymington, Hampshire, is among many GPs who believe the proposals would 'very definitely' lead to increased referrals and requests for tests.

'Everything would automatically become urgent,' he says. 'It would make a dramatic difference to the health service.

'If you end up referring more people urgently the whole thing would grind to a halt.'

How GPs' practice could change

GPs likely or very likely to change practice in the following ways in response to a potential patient complaint:

• Increase referral rate (72.7 per cent of GPs)

• Increase follow-up (68.4 per cent)

• Increase diagnostic testing (69.5 per cent)

• Avoid treatment of certain conditions (51.5 per cent)

• Consider diagnostic test where there is a known element of risk (44.5 per cent)

• Prescription of unnecessary drugs (21.9 per cent)

Survey of 346 GPs in 1999

published in BJGP

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