The “best interests of the patient” standard—a complex balance between the principles of beneficence and autonomy—is the driving force of ethical clinical care. Clinicians’ fear of litigation is a challenge to that ethical paradigm. But is it ever ethically appropriate for clinicians to undertake a procedure with the primary goal of protecting themselves from potential legal action? Complicating that question is the fact that tort liability is adjudicated based on what most clinicians are doing, not the scientific basis of whether (...) they should be doing it in the first place. In a court of law, clinicians are generally judged based on the “reasonably prudent” standard: what a reasonably prudent practitioner in a similar situation would do. But this legal standard can have the effect of shifting the medical standard of care—enabling a standard-of-care sprawl where actions undertaken for the primary purpose of avoiding liability reset the standard of care against which clinicians will be adjudicated. While this problem has been recognized in the legal literature, neither current ethical models of care nor legal theory offer workable solutions. One of the best examples of the conflict between evidence-based medicine and common clinical practice is the use of electronic fetal monitoring. Despite strong evidence and professional guidelines that argue against the use of EFM for healthy pregnancies, the practice persists. One of the main reasons for this is often assumed to be physicians’ concerns about liability. (shrink)

The Alice Books, full of illogical thoughts, words, and contradictions, were unrivaled entertainment until the publication of the medical literature promoting electronic fetal monitoring for every pregnancy. The modern-day EFM advocates acknowledge EFM’s decades long failure but simultaneously recommend EFM use for lawsuit protection and because the profession has used EFM for every pregnancy for fifty years, therefore, it must be efficacious. These self-indulgent, illogical rationalizations ignore the half century of evidence-based scientific research proving that EFM is a complete failure (...) as well as ignoring the fact that continued EFM use violates the fundamental principles of modern bioethics. This blind advocacy perpetuates four pernicious EFM harms occurring to mothers, babies, and the medical profession itself. This article sets out these four EFM harms with the goal of abolishing the misguided, illogical, contradictory, arguments used by the twenty-first century EFM Lewis Carroll mimics. (shrink)

Defensive medicine has become pervasive. Defensive medicine is often thought of as a systems issue, the inevitable result of an adversarial malpractice environment, with consequent focus on system-responses and tort reform. But defensive medicine also has ethical and professionalism implications that should be considered beyond the need for tort reform. This article examines defensive medicine from an ethics and professionalism perspective, showing how defensive medicine is deeply problematic. First, a definition of defensive medicine is offered that describes the essence of (...) defensive practice: clinical actions with the goal of protecting the clinician against litigation or some adverse outcome. Ethical arguments against defensive medicine are considered: defensive medicine is deceptive and undermines patient autonomy; defensive medicine subjugates patient interests to physician interests and violate fiduciary obligations; defensive medicine exposes patients to harm without benefit; defensive medicine undermines trust in the profession; and defensive medicine violates obligations of justice. Possible arguments in favor of defensive medicine are considered and refuted. Defensive practice is therefore unethical and unprofessional, and should be viewed as a challenge for medical ethics and professionalism. (shrink)