In the Hippocratic Oath, Physicians promise to behave ethically and professionally towards their patients. However, in complex care settings, physicians may default to practicing behavior that, in essence, runs counter to the interests of a patient. Results from a study published in BMC Health Services Research suggests that this may include practicing defensive medicine, failing to report incidents, and being hesitant to disclose incidents to patients.[1]

This approach can have dire consequences. In “To Err is Human – Building a Safer Health System” (published in 2000), Linda Kohn, Janet Corrigan, and Molla Donaldson, wrote that as many as 98,000 people die in any given year from medical errors that occur in hospitals – more than die from car accidents, breast cancer, or AIDS combined — three causes that receive far more public attention. [2] However, two decades later, these numbers dramatically changed – with 1.7 million Americans experience a preventable mistake during medical care, leading to as many as 440,000 deaths annually.[3]

Fragment of Hippocratic oath. 3rd century MS. 5754 | Oxyrhynchus Papyrus 2547; Photo courtesy: Wellcome Library, London. Wellcome Images | Creative Commons Attribution only license CC BY 4.0

From commission to omission
In the first 180 years following the founding of the United States, physicians were only occasionally sued for medical malpractice. And this generally involved errors of commission based on relatively small mistakes made. This changed in the mid-twentieth-century when malpractice allegations slowly became errors of omission. As a result, in the early 1960s, the number of medical malpractice lawsuits increased exponentially, leading to the practice of defensive medicine in the 1970s. [4]

Defensive medicine
And while today physicians may resort to the practice of defensive medicine, either through diagnosis or treatment, to avoid a medical malpractice lawsuit, in essence, the practice is not designed to benefit the patient, but rather to prevent a medical malpractice lawsuit if a problem may occur.

In practicing defensive medicine, physicians generally go beyond what is medically necessary for accurately diagnosing and treating a patient. It results in performing procedures that the patient may want or is expecting, even if they are not clinically necessary, to ensures that they are not missing any unlikely but possible condition.

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The unfortunate consequence of practicing defensive medicine is that, in a desire to prevent unlikely bad outcomes, to prevent having an angry patient, and to avoid a medical malpractice lawsuit, physicians resort to overtesting and overtreatment.

The negative effects of the practice are demonstrated by the fact that the overuse of tests and medical procedures out of fear of malpractice litigation is estimated to cost the American healthcare system billions of dollars annually. Estimates published in 2010 suggest that the cost of defensive medicine per year varies between US $ 46 and US $ 78 billion dollars. But some sources estimate the costs as high as $300 billion dollars per year.[5]

Defensive medicine may also result in physicians choosing a medical specialty that has less risk of medical malpractice lawsuits and avoiding treating high-risk patients – in hopes of having better outcomes.

And while the risk of malpractice litigation may be a relevant factor affecting the development of defensive medicine, by practicing this form of medicine, physicians are actually doing harm, contrasting their Hippocratic Oath or promise as a physician. [2]

To reduce, and in some cases, avoid the risk of medical malpractice litigation, procedures should be put in place for how incidents will be discussed, reported, and disclosed. The lack of proper procedures may lead to the off-loading of responsibilities, blaming others for mistakes, and, in some cases, the failure to honestly report and disclose incidents.[1]

This should never happen!

Research indicates that fear for medical malpractice litigation may do more harm than good. The same research shows that there are more successful ways in stimulating health care professionals to comply with medical standards and behave ethically and professionally towards their patients… and as a result, provide more optimal care. This research also indicates that focusing on communication, learning from errors, and working collaboratively in teams founded on trust and mutual respect may be a more promising route in creating a safer medical practice and may, as a result, be more beneficial in helping avoid being sued.

But never forget that reducing medical malpractice litigation is not only an administrative process. And it is also not just a process of following proper procedures and guidelines

As a physician or other healthcare provider, you are there to take care of your patient. Experts believe that avoiding malpractice litigation may therefore be based on developing a good and trusting relationship with your patient.

Building a good and trusting relationship is especially important today – with the shift to patient-centered care, designed to help patients be part of the medical decision-making process. Such a shift requires openness and communication by the physician about information in the medical record.

But, as a doctor, you may, at times, hesitate to share medical information out of fear that it may be misunderstood and that comments you or other members of the care team have made, could, potentially, lead to problems, including medical malpractice lawsuits.

Sure, it is true that note-sharing can be very tricky, especially if this is done without the appropriate context. But it may also be very helpful when this is done under the right circumstances, designed to promote more patient engagement. It will help patients become more active participants in their care. And this, in turn, may lead to better outcomes, and enhance the overall doctor-patient relationship.

An important part of managing the doctor-patient relationship is ensuring transparency and being realistic. As a doctor, you should be clear with patients and manage expectations for diagnosis and treatment, about follow up, and about medication.

By helping patients understand their own medical situation and the need to adhere to medical treatment, they will not only get better care but will also be less likely to sue because of a misunderstanding. In contrast, studies have shown that doctors are more likely to get sued by a patient with whom they have a bad relationship.

In the end, good communication and strong relationships are goals physicians and other healthcare professionals can, and should, work toward.

Good communication
Good communication is especially important when a family member or a friend acting as a surrogate, is involved in helping a patient during a difficult time in their lives.

In some cases, having a family member or surrogate act as a listener, a note-taker and possible, as an explainer of a planned diagnostic procedure or treatment, explaining the possible side-effects of such procedures, the required follow up, and the medication being prescribed, not only improves understanding, it also creates goodwill.

And before potential problems may develop, always keep in mind that spending just a little extra time in answering questions and explaining the diagnosis, the disease process and what the patient should or should not expect, often defuses or avoids a difficult and tense situation.

In the end… by developing strong and trusting relationships, creating and sharing realistic care expectations, your patient may be better informed about the complexity and risks of providing health care, their own responsibility, and the important role you, their doctor, and the healthcare team plays.

[1] Renkema E, Broekhuis M, Ahaus K. Conditions that influence the impact of malpractice litigation risk on physicians’ behavior regarding patient safety. BMC Health Serv Res. 2014 Jan 25;14:38. doi: 10.1186/1472-6963-14-38. PMID: 24460754; PMCID: PMC3905283.
[2] Institute of Medicine (US) Committee on Quality of Health Care in America. To Err is Human: Building a Safer Health System. Kohn LT, Corrigan JM, Donaldson MS, editors. Washington (DC): National Academies Press (US); 2000. PMID: 25077248.
[3] Eisenberg M. To Err Is Human: A Patient Safety Documentary. Red Arrow Studios.  [Documentary]
[4] Berlin L. Medical errors, malpractice, and defensive medicine: an ill-fated triad. Diagnosis (Berl). 2017 Sep 26;4(3):133-139. doi: 10.1515/dx-2017-0007. PMID: 29536927.
[5] Rothberg MB, Class J, Bishop TF, Friderici J, Kleppel R, Lindenauer PK. The cost of defensive medicine on 3 hospital medicine services. JAMA Intern Med. 2014 Nov;174(11):1867-8. doi: 10.1001/jamainternmed.2014.4649. PMID: 25222939; PMCID: PMC4231873.

Featured image: Malpractice Definition Dictionary Stethoscope. Photo courtesy: © 2016 Allenandallen Used with permission

How to Cite


Peter Hofland 1
How Good Communication and Transparency may Help avoid a Medical Malpractice Lawsuits – Onco Zine – The International Oncology Network, February 10, 2021.
DOI: 10.14229/onco.2021.02.10.001
1 Sunvalley Communication, LLC


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