In contemporary China, physicians tend to require more diagnostic work-ups and prescribe more expensive medications than are clearly medically indicated. These practices have been interpreted as defensive medicine in response to a rising threat of potential medical malpractice lawsuits. After outlining recent changes in Chinese malpractice law, this essay contends that the overuse of expensive diagnostic and therapeutic interventions cannot be attributed to malpractice concerns alone. These practice patterns are due as well, if not primarily, to the corruption (...) of medical decision-making by physicians being motivated to earn supplementary income, given the constraints of an ill-structured governmental policy by the over-use of expensive diagnostic and therapeutic interventions. To respond to these difficulties of Chinese health care policy, China will need not only to reform the particular policies that encourage these behaviors, but also to nurture a moral understanding that can place the pursuit of profit within the pursuit of virtue. This can be done by drawing on Confucian moral resources that integrate the pursuit of profit within an appreciation of benevolence. It is this Confucian moral account that can formulate a medical care policy suitable to China's contemporary market economy. (shrink)

BackgroundMedical errors, unsatisfactory outcomes, or treatment complications often prompt patient complaints about healthcare providers. In response, physicians may adopt defensive practices to mitigate objections, avoid complaints, and navigate lengthy trial processes or other potential threats. However, such defensive medicine (DM) practices can carry risks, including potential harm to patients and the imposition of unnecessary costs on both patients and the healthcare system. Moreover, these practices may run counter to accepted ethical standards in medicine.MethodsThis qualitative study involved (...) conducting semi-structured interviews with 43 physicians, among whom 38 were faculty members at medical universities, 42 had administrative experience at various levels of the health system, and 23 had previously served as health system policymakers. On average, the participants had approximately 23.5 years of clinical experience. The selection of participants was based on purposive sampling. Data collection through interviews continued until data saturation was achieved.ResultsBased on the findings, DM manifests in both positive and negative forms, illustrated by instances like ordering unnecessary lab tests, imaging, or consultations, reluctance to admit high-risk patients, and avoiding high-risk procedures. The study participants identified a range of underlying and contextual factors contributing to DM, encompassing organizational-managerial, social, personal, and factors inherent to the nature of defensive medical practices. The results also highlight proposed strategies to address and prevent DM, which can be grouped into organizational-managerial, social, and those focused on modifying the medical complaints management system.ConclusionDM is a multifaceted and significant phenomenon that necessitates a comprehensive understanding of its various aspects, including interconnected and complex structures and underlying and contextual factors. While the results of this study offer a solid foundation for informing policy decisions within the healthcare system and include some explanatory policy suggestions, we encourage policymakers to complement the findings of this study with other available evidence to address any potential limitations and to gain a more comprehensive understanding of the policymaking process related to DM. (shrink)

BackgroundObstetrics and gynaecology always has reputation for being a highly litigious. The field of obstetrics and gynaecology is surrounded by different circumstances that stimulate the doctors to practice defensive medicine.MethodsThis study was directed to assess the extent and the possible effect of defensive medicine phenomenon on medical decision making among different grades of obstetric and gynaecologic Sudanese doctors, and to determine any experience of medical litigations with respect to sources and factors associated with it.ResultsA total of (...) 117 doctors were approached, their distribution according to job description was as follow: consultants registrars and specialists. The majority 89.7 % had the impression that litigation against doctors are increasing and 27.6 % had a direct experience of litigation. In this study less than one half of the surveyed doctors knew the concept of defensive medicine and 71.8 % reported practicing one or another form of defensive medicine. The different sources of the litigations reported by the doctors included: maternal death, perinatal death, other {misdiagnosis, intra-uterine fetal death, uterine perforation, rupture uterus}, fetal distress, injury to viscera and shoulder dystocia. In this study the experience of medical litigation was significantly observed among those who worked in area of blame culture. In logistic regression model, there was no significant difference between those who knew the concept of defence medicine and those who didn’t.ConclusionThere should be strategic plan to reduce the practice of defensive medicine and medical litigation against doctors. (shrink)

Since the Supreme Court upheld the partial birth abortion ban in 2007, more U.S. abortion providers have begun performing intraamniotic digoxin injections prior to uterine dilation and evacuations. These injections can cause medical harm to abortion patients. Our objective is to perform an in-depth bioethical analysis of this procedure, which is performed mainly for the provider’s legal benefit despite potential medical consequences for the patient.

Defensive medicine is defined as a doctor’s deviation from standard practice to reduce or prevent complaints or criticism. The objectives of this study were to assess the prevalence of the practice of defensive medicine in the UK among hospital doctors and the factors affecting it.

Background Defensive medicine is physicians’ deviation from standard medical care which is primarily intended either to reduce or avoid medico legal litigation. Although the Federal Ethics Committee review in Ethiopia has shown that applications for medical/surgical error investigation claims are increasing at an alarming rate, there is no study to date done to estimate the degree of defensive practice done by the physicians with an intention of avoiding this increasing legal claim. This study assessed the practice of (...) defensive medicine among highly litigious disciplines (surgery) and described factors associated with its practice. Methods Cross sectional quantitative study using online survey questionnaires was conducted to assess the degree of defensive practice and six factors (age, years of experience, specialty, monthly income, place of practice and previous medico legal history) associated with its practice were assessed among surgeons working in Ethiopia. Results A total of 430 surgeons directly received an online survey questionnaire and 236 of them successfully completed the questionnaire making the response rate 51.2%. Nearly half of the study participants (51.7%) were aware of the concept of defensive medicine and 174 (74%) reported performing one form of defensive practice. Twenty-nine (12.3%) of the participants have legal dispute history, though only 1.3% of them ended up in penalty. Avoiding high risk procedures was the commonest defensive act performed by 60% of the participants, followed by ordering tests unnecessarily (52.1%). Multinomial logistic regression model showed that there was no association between age of the participant, place of practice, year of experience and defensive practice. This model also showed that cardiothoracic and vascular surgeons perform less defensively than surgeons with other specialty with P value of 0.02. Conclusion The practice of defensive medicine is widespread among surveyed Ethiopian surgeons and further studies are required to objectively estimate the effect of defensive practice on the health care system of the country. Policy makers need to develop strategy towards decreasing this high rate of defensive practice. (shrink)

BackgroundDefensive medicine (DM) practice refers to the ordering or prescription of unnecessary treatments or tests while avoiding risky procedures for critically ill patients with the aim to alleviate the physician’s legal responsibility and preserve reputation. Although DM practice is recognized, its dimensions are still uncertain. The subject has been highly investigated in developed countries, but unfortunately, many developing countries are unable to investigate it properly. DM has many serious ramifications, exemplified by the increase in treatment costs for patients and (...) health systems, patients’ exposure to risks, and negative effects on the psychological health of both health providers and recipients. Ultimately, the most serious consequence is the ethical consequences.MethodsThis work is based on a review of the literature related to DM worldwide and a comparison with the available knowledge found in Jordan. It is qualitative with a descriptive nature, aiming to diagnose the current DM practice in Jordan.ResultsThis is the first published article that discusses DM in Jordan by diagnosing its ethical and economic consequences for the health system as well as for patients. Despite the knowledge of the reasons that support its practice, little is being done to solve this issue. The absence of agreeable medical malpractice law, the dearth of unified medical protocols, the overwhelming pressure imposed by patients on medical staff, and the deteriorating patient-physician relationship are some of the causes of DM practice. Surely, the solution to these issues is to focus on fortifying the ethical and humanitarian aspects on the side of both the physician and the patient to ensure positive collaboration. The ethical aim of the physician to treat the patient faithfully and do what is possible to help combined with the appreciation of the physician’s efforts and the choice to not take advantage of the physician through litigation could be the most reasonable solution in the near future.ConclusionJordan is suffering from DM due to the limited financial expenditure on the health sector and the impracticality of medical malpractice law. The authors highlight that the cardinal step in solving this dilemma is restoring the ethical dimension of the patient-physician relationship. (shrink)

Obstetrics and gynaecology always has reputation for being a highly litigious. The field of obstetrics and gynaecology is surrounded by different circumstances that stimulate the doctors to practice defensive..

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)

The aim of this paper is to evaluate the claim that the disclosure of surgeons' performance data could lead to the practice of defensive medicine. I argue that disclosure could actually encourage surgeons to practice a new form of defensive medicine, one that has not hitherto been noted. I explore a possible way of avoiding this problem.

The performance records of cardiac surgeons have been disclosed publicly in several states in the USA, for example New York and Pennsylvania, since the early 1990s. In response to the growing interest in the quality of healthcare, such records have also begun to be disclosed in the UK, starting in 2004. Various studies seem to show that disclosure has, indeed, contributed to the improvement of the quality of healthcare.1 However, at the same time, disclosure does have its critics.2 In this (...) paper, I discuss what I call the ‘defensive medicine objection’ to the disclosure of performance data; that disclosure is not justified because it could cause surgeons to experience high levels of anxiety3, which might eventually lead to the practice of defensive medicine. Although this objection is often mentioned by ethicists and medical professionals4 it has never been carefully analysed or evaluated. The aim of this paper is to consider it in detail. I argue in favour of the objection; disclosure could, indeed, lead to the practice of defensive medicine if it is not conducted properly.5 This paper has the following structure. In Section 2 I discuss the anxiety that surgeons may experience regarding the disclosure of performance data. In Section 3 I introduce a traditional definition of defensive medicine. In Section 4 I argue that disclosure could encourage surgeons to perform a new form of defensive medicine, one that is not captured by the traditional definition. In Section 5 I undermine the claim that surgeons have no good reason to be anxious about disclosure. In Section 6 I consider a possible way of avoiding.. (shrink)

This essay examines the so-called phenomenon of defensive medicine and the problematic aspects of attempting to maintain the safest legal position possible. While physicians face genuine litigation threats they frequently overestimate legal peril. Many defensive practices are benign, but others alter patient care and increase costs in ways that are ethically suspect. Physicians should learn to evaluate realistically the legal risks of their profession and weigh the emotional, physical, and financial costs to the patient before employing a (...) defensive measure. (shrink)

Significant contributions to debates in the philosophy of evidence-based medicine (EBM) have come from a variety of different philosophical quarters, yet mainstream discourse in the field has been largely devoid of contributions from scholars working in the pragmatist tradition. This is a particularly conspicuous omission, given pragmatism’s commitment to the melioristic view that philosophy both can, and should, be about the business of concretely bettering the human estate. Two exceptions to this oversight come from Brian Walsh and Maya Goldenberg. (...) Unfortunately, in both cases, the misapplication of pragmatist thinking leads to the mistaken view that EBM is committed to some form of pernicious objectivism. This article aims to revise these pragmatist critiques in order to bring them more consistently in line with pragmatist values and commitments. Doing so shows that EBM is defensible on pragmatist grounds against objectivist attacks. (shrink)

The climate crisis is an enormous challenge for contemporary societies. Yet, public discussions on it often lead to anger, mocking, denial and other defensive behaviours, one prominent example of which is the reception met by the climate advocate Greta Thunberg. The paper approaches this curious phenomenon via shame. It argues that the very idea of anthropogenic climate change invites feelings of human failure and thereby may also entice shame. The notion of “climate shame” is introduced and distinguished from “climate (...) guilt”. Whereas climate guilt prioritises the flourishing of the environment and is focused on actions and morality, climate shame is concerned with human identity and selfhood. The paper then explores whether shame is a morally destructive or constructive emotion. Making use of both psychological and philosophical literature on shame, it argues that although shame faces many challenges that question its usefulness in moral pedagogy, these challenges can be met with “moral maturity”—moreover, following a utilitarian approach, the overall benefits of climate shame can justify its costs to individuals. My argument is that climate shame holds the potential of being a highly effective moral psychological method of persuasion, capable of inviting wholesale critical reflection on current, environmentally damaging practices and cultivation of more virtuous ways of co-existing with the rest of the natural world and other species. (shrink)

The goal of military medicine is to conserve the fighting force necessary to prosecute just wars. Just wars are defensive or humanitarian. A defensive war protects one's people or nation. A humanitarian war rescues a foreign, persecuted people or nation from grave human rights abuse. To provide medical care during armed conflict, military medical ethics supplements civilian medical ethics with two principles: military-medical necessity and broad beneficence. Military-medical necessity designates the medical means required to pursue national self-defense (...) or humanitarian intervention. While clinical-medical necessity directs care to satisfy urgent medical needs, military-medical necessity utilizes medical care to satisfy the just aims of war. Military medicine may therefore attend the lightly wounded before the critically wounded or use medical care to win hearts and minds. The underlying principle is broad, not narrow, beneficence. The latter addresses private interests, while broad beneficence responds to the collective welfare of the political community. (shrink)

Proponents of evidence-based medicine (EBM) provide the “hierarchy of evidence” as a criterion for judging the reliability of therapeutic decisions. EBM's hierarchy places randomized interventional studies (and systematic reviews of such studies) higher in the hierarchy than observational studies, unsystematic clinical experience, and basic science. Recent philosophical work has questioned whether EBM's special emphasis on evidence from randomized interventional studies can be justified. Following the critical literature, and in particular the work of John Worrall, I agree that many of (...) the arguments put forward by advocates of EBM do not justify the ambitious claims that are often made on behalf of randomization. However, in contrast to the recent philosophical work, I argue that a justification for EBM's hierarchy of evidence can be provided. The hierarchy should be viewed as a hierarchy of comparative internal validity. Although this justification is defensible, the claims that EBM's hierarchy substantiates when viewed in this way are considerably more circumscribed than some claims found in the EBM literature. (shrink)

We describe the case of an eighty‐four‐year‐old man with disseminated lung cancer who had been receiving palliative care in the hospital and was found by nursing staff unresponsive, with clinically obvious signs of death, including rigor mortis. Because there was no documentation to the contrary, the nurses commenced cardiopulmonary resuscitation and called a code blue, resulting in resuscitative efforts that continued for around twenty minutes. In discussion with the hospital ethicist, senior nurses justified these actions, mainly citing disciplinary and medicolegal (...) concerns. We argue that moral harms arise from CPR performed on a corpse and that legal concerns about failing to perform it are unfounded. We contend that such efforts are an unintended consequence of managerialist policies mandating do‐not‐resuscitate orders and advance care plans and of defensive practices that can value the interests of institutions and practitioners over those of patients. Health management teaching should include managerialism and its pitfalls, while clinician training should prioritize ethical reasoning and legal knowledge over defensive practice. (shrink)

BackgroundDefensive practice occurs when physicians provide services, such as tests, treatments and referrals, mainly to reduce their perceived legal or reputational risks, rather than to advance patient care. This behaviour is counter to physicians’ ethical responsibilities, yet is widely reported in surveys of doctors in various countries. There is a lack of qualitative research on the drivers of defensive practice, which is needed to inform strategies to prevent this ethically problematic behaviour.MethodsA qualitative interview study investigated the views and experiences (...) of physicians in Australia on defensive practice and its contribution to low value care. Interviewees were recruited based on interest in medico-legal issues or experience in a health service involved in ‘Choosing Wisely’ initiatives. Semi-structured interviews averaged 60 min in length. Data were coded using the Theoretical Domains Framework, which encapsulates theories of behaviour and behaviour change.ResultsAll participants (n = 17) perceived defensive practice as a problem and a contributor to low value care. Behavioural drivers of defensive practice spanned seven domains in the TDF: knowledge, focused on inadequate knowledge of the law and the risks of low value care; skills, emphasising patient communication and clinical decision-making skills; professional role and identity, particularly clinicians’ perception of patient expectations and concern for their professional reputation; beliefs about consequences, especially perceptions of the beneficial and harmful consequences of defensive practice; environmental context and resources, including processes for handling patient complaints; social influences, focused on group norms that encourage or discourage defensive behaviour; and emotions, especially fear of missing a diagnosis. Overall, defensive practice is motivated by physicians’ desire to avoid criticism or scrutiny from a range of sources, and censure from their professional peers can be a more potent driver than perceived legal consequences.ConclusionsThe findings call for strengthening knowledge and skills, for example, to improve clinicians’ understanding of the law and their awareness of the risks of low value care and using effective communication strategies with patients. Importantly, supportive cultures of practice and organisational environments are needed to create conditions in which clinicians feel confident in avoiding defensive practice and other forms of low value care. (shrink)

Obviously medicine should be evidence-based. The issues lie in the details: what exactly counts as evidence? Do certain kinds of evidence carry more weight than others? (And if so why?) And how exactly should medicine be based on evidence? When it comes to these details, the evidence-based medicine (EBM) movement has got itself into a mess – or so it will be argued. In order to start to resolve this mess, we need to go 'back to basics'; (...) and that means turning to the philosophy of science. The theory of evidence, or rather the logic of the interrelations between theory and evidence, has always been central to the philosophy of science – sometimes under the alias of the 'theory of confirmation'. When taken together with a little philosophical commonsense, this logic can help us move towards a position on evidence in medicine that is more sophisticated and defensible than anything that EBM has been able so far to supply. (shrink)

This paper reports on recent regulations and guidelines in the Federal Republic of Germany bearing on perinatal medical ethics, embryo research and trophoblast biopsy. Some of the regulations are defensive responses to new moral opportunities. In contrast, this paper calls for a more aggressive moral cost-benefit assessment of high technology medicine, which would include large-scale research on embryos prior to the fiftieth day post-menstruation. Keywords: abortion, embryo research, moral triage, prenatal diagnosis, withholding treatment CiteULike Connotea Del.icio.us What's this?

Perez-Rodriguez and de la Fuente (2017) assume that although human races do not exist in a biological sense (“geneticists and evolutionary biologists generally agree that the division of humans into races/subspecies has no defensible scientific basis,” they exist only as “sociocultural constructions” and because of that maintain an illusory reality, for example, through “racialized” practices in medicine. Agreeing with the main postulates formulated in the article, we believe that the authors treat this problem in a superficial manner and have (...) failed to capture the current state of the field of knowledge in science and the humanities. In our commentary, we want to highlight two main omissions, and to notice three important implications for “a postracial medicine.”. (shrink)

The question of what explains individual differences in expertise within complex domains such as music, games, sports, science, and medicine is currently a major topic of interest in a diverse range of fields, including psychology, education, and sports science, to name just a few. Ericsson and colleagues’ deliberate practice view is highly influential perspective in the literature on expertise and expert performance—but is it viable as a testable scientific theory? Here, reviewing more than 25 years of Ericsson and colleagues’ (...) writings, we document critical inconsistencies in the definition of deliberate practice, along with apparent shifts in the standard for evidence concerning deliberate practice. We also consider the impact of these issues on progress in the field of expertise, focusing on the empirical testability and falsifiability of the deliberate practice view. We then discuss a multifactorial perspective on expertise, and how open science practices can accelerate progress in research guided by this perspective. (shrink)

This groundbreaking book brings together the latest discoveries about the immune system in both Eastern and Western medicine to show how a balanced system can help strengthen the body.

One contested moral commitment shared by the American Medical Association and American Nurses Association has to do with the place of conscience in the practice of medicine. These organizations, each in their own way, urge their respective members to engage in careful moral discernment regarding their professional life, and they assert the existence of an obligation on the part of others to respect the conscientious objections of healthcare professionals and to accommodate objecting individuals. Yet despite the value that these (...) organizations place on conscience and objector rights, these organizations do not offer elaborate philosophical defenses of their positions. This shortcoming is exposed by the light of contemporary philosophical challenges to conscience-friendly policies. What such challenges demand is a philosophical defense of these organizations’ moral commitments and corresponding policy recommendations. The point of this article is to indicate how the Catholic philosophical tradition’s account of the nature and importance of conscience can philosophically underwrite these organizations’ conscience-related principles and practices. It can be seen, then, that the Catholic tradition is far from inimical to the contemporary practice of medicine and that, on the contrary, this tradition offers philosophically serious grounds on which to rest some of the most morally significant values and guidelines endorsed by these contemporary health-professional organizations and their members. (shrink)

The pharmaceutical industry plays an increasingly dominant role in healthcare, raising concerns about “conflicts of interest” on the part of the medical professionals who interact with the industry. However, there is considerable disagreement over the extent to which COI is a problem and how it should be managed. Participants in debates about COI have become entrenched in their views, which is both unproductive and deeply confusing for the majority of medical professionals trying to work in an increasingly commercialized environment. We (...) used a modified meta-narrative review method to analyse debates about COI in the academic and grey literature. We found two Discourse Models: The Critical Discourse Model sees COI in health and biomedicine as a major problem that both can and should be addressed, while the Defensive Discourse Model argues that current efforts to control COIs are at best unnecessary and at worst harmful. Each model is underpinned by profoundly differing views about how society should be organized—in particular whether market forces should be encouraged or curtailed—and how the dangers associated with market forces should be managed. In order to make any headway, academics and policymakers must recognize that these debates are underpinned by profoundly differing worldviews. (shrink)

In 2008 the Human Fertilisation and Embryology Act amendments made deliberately choosing to bring disability into the world, using assisted reproduction, a criminal offence. This paper considers whether the legal prohibition above, should influence other policy areas concerning the welfare of future children such as new possibilities presented by foetal surgery and in utero gene therapy. If we have legal duties to avoid disability in one context should this influence our avoidance of disability in this other context? This paper investigates (...) whether the State might have a stake in wider promotion of practices to reduce the degree of disability in foetuses that will come to exist. Not selecting for disability does not affect the welfare of any future individual, whereas treating in utero abnormalities can optimize the eventual child’s welfare; antenatal interventions stand to improve clinical outcomes and welfare should that specific child be born. I explore why the State may want to intervene in the antenatal setting and to what extent, if at all; the State should implement these technologies. I argue that if the State is justified in intervening to outlaw the choosing to create disabled lives using assisted reproductive techniques, it is also justified in putting pressure on prospective parents to accept therapies in utero to help their child be born less disabled. However, I qualify this with the argument that the State is not justified in using force or the criminal law in this situation during pregnancy. (shrink)

The policy changes governing the relations between the pharmaceutical, medical device and service industries and academic clinical research physicians, recommended by the Institute of Medicine,1 the American Academy of Medical Colleges,2 and much discussed in the media and on our campuses, aim to create some protective ethical firewalls. However, some potentially critical consequences of these steps are missed if we do not acknowledge what else is on the table, and who is sitting at it. By only reacting defensively to (...) the juggernaut of righteous indignation over the loss of purity in a faculty physician's approach to medical problem solving, we are allowing the process to blind us to the difficulties in establishing fair and equitable management of all of the potential conflicts of commitment and conflicts of interest we incur, not only as faculty members, but also as departments and academic medical centres . Critically, this involves all sources of revenue—private, commercial and public—that support our professional and institutional commitments as well as our personal finances.i To counter the present crackdown on inappropriate financial relationships effectively, we will need to reframe the questions, and convince all stakeholders to the process that there is more to this crisis than can be resolved through our public confessions of commercial largesse obliged. The Phrma Code guidelines3 have resulted in what is believed to be a defensible, if as yet legally untested, compartmentalisation of the commercial sector's marketing, medical education and research sponsorship activities. We at the AMC are a long way from understanding how those same missions, as they emanate from our multifarious commitments, can be isolated and individually managed. Defining the parameters for establishing institutional conflicts of interest and commitment are beyond our essay's scope, but with the very public emphasis on capitalist subversion of …. (shrink)

Trust is a kind of risky reliance on another person. Social scientists have offered two basic accounts of trust: predictive expectation accounts and staking (betting) accounts. Predictive expectation accounts identify trust with a judgment that performance is likely. Staking accounts identify trust with a judgment that reliance on the person’s performance is worthwhile. I argue (1) that these two views of trust are different, (2) that the staking account is preferable to the predictive expectation account on grounds of intuitive adequacy (...) and coherence with plausible explanations of action; and (3) that there are counterexamples to both accounts. I then set forward an additional necessary condition on trust, according to which trust implies a moral expectation. The content of the moral expectation is this: W hen A trusts B to do x, A ascribes an obligation to B to do x, and holds B to this obligation. This moral expectation account throws new light on some of the consequences of misplaced trust. I use the example of physicians’ defensive behavior to illustrate this final point. (shrink)

Society has historically not taken a benign view of genetic disease. The laws permitting sterilization of the mentally re tarded~ and those proscribing consanguineous marriages are but two examples. Indeed as far back as the 5th-10th centuries, B.C.E., consanguineous unions were outlawed (Leviticus XVIII, 6). Case law has traditionally tended toward the conservative. It is reactive rather than directive, exerting its influence only after an individual or group has sustained injury and brought suit. In contrast, state legislatures have not been (...) inhibited in enacting statutes. Many of their products can be characterized as hasty, unnecessary, ill-conceived, and based on the heart rather than the head. Moreover the lack of expert consultation sought has also been remarkable. One state legislature, for example, has advocated immunization for sickle cell anemia! Many others have enacted laws for the screening of inborn errors of metabolism, e.g., phenylketon uria, but have poorly defined the lines of responsibility to secure compliance. A spate of specific disease-related bills has emerged in the u.S. Congress, each seeking recognition and appropriations. Sickle cell anemia, hemophilia, Cooley's anemia and Tay-Sachs disease have been among the front-runners for support. Finally, in 1975, Congress has begun to examine an omnibus bill concerning all forms of genetic disease. The bill, termed the National Genetic Diseases Act is, however, still far from being enacted. (shrink)

Bioethics, Volume 36, Issue 2, Page 134-142, February 2022.

The seemingly interminable debates about health care reform in the last few years have focused mainly on health care access, quality, and cost. Debates on the medical malpractice component of the issue have focused almost entirely on cost. The familiar arguments in favor of limiting liability include the financial and health costs of defensive medicine; decreased physician supply in certain specialties and geographic areas; excessive awards; and high transaction costs, including attorney and expert witness fees. The equally familiar (...) arguments in favor of maintaining tort liability include the need to promote civil justice, deter substandard care, identify incompetent practitioners, and encourage systemic quality improvement.Numerous studies have explored the possible effects of damage caps and other measures on malpractice premiums, health care costs, and other financial endpoints. One relatively under-examined aspect of the issue is how federal legislation expanding access to health care might alter the number of medical malpractice claims. With the enactment of the Patient Protection and Affordable Care Act of 2010, it is especially appropriate to consider what effect, if any, the new law will have on the rate of medical malpractice claims. (shrink)

There is much to learn from Durán and Jongsma’s paper.1 One particularly important insight concerns the relationship between epistemology and ethics in medical artificial intelligence. In clinical environments, the task of AI systems is to provide risk estimates or diagnostic decisions, which then need to be weighed by physicians. Hence, while the implementation of AI systems might give rise to ethical issues—for example, overtreatment, defensive medicine or paternalism2—the issue that lies at the heart is an epistemic problem: how (...) can physicians know whether to trust decisions made by AI systems? In this manner, various studies examining the interaction of AI systems and physicians have shown that without being able to evaluate their trustworthiness, especially novice physicians become over-reliant on algorithmic support—and ultimately are led astray by incorrect decisions.3–5 This leads to a second insight from the paper, namely that even if some AI system happens to be opaque, it is still not built on the moon. To assess its trustworthiness, AI developers or physicians have different sorts of higher order evidence at hand. Most importantly, …. (shrink)

American medicine has long sought to control the standard of care that physicians are expected to provide to their patients. One effort to insulate the standard of care from external interference, called a “safe harbors” approach, would enable physicians to avoid liability for malpractice if they adhered to medical practice guidelines. The idea is to eliminate the “battle of experts” and reduce defensive medicine by requiring judges and juries to accept guidelines as conclusive evidence of the standard (...) of care. Yet current efforts to improve the guideline development process, including the use of evidence-based guidelines, are unlikely to be able to overcome the shortcomings that led a similar safe harbors initiative to fail in the early 1990s. Moreover, there is no adequate justification for conferring this degree of self-regulatory power on the medical profession. (shrink)

In Italy in recent years, an exponential increase in the frequency of medical malpractice claims relating to the issue of informed consent has substantially altered not only medical ethics, but medical practice as well. Total or partial lack of consent has become the cornerstone of many malpractice lawsuits, and continues to be one of the primary cudgels against defendant physicians in Italian courtrooms. Physicians have responded to the rising number of claims with an increase in ‘defensive medicine’ and (...) a prevailing preoccupation with the purely formal aspects of consent. The result is a plethora of consent forms, believed to be a guarantee of ‘informed consent’, as well as a growing reliance on informed consent as a shield against judicial action brought by the patient. Physicians ‘inform’ patients without really sharing information, often delegating the task of communication to other professionals who are not doctors. Italian judges always condemn the physician when information to the patient has been inadequate, thus leading insurance companies to consider the lack of valid informed consent as the total responsibility of the physician and/or the hospital. It is necessary to change tack, to remove this idea of consent which permeates the defensive culture of medical practice. Italian physicians need to be trained, first of all, to become aware that information and consent are two distinct processes, albeit closely connected. Valid communication demands a higher level of professionalism from physicians. (shrink)

Essays and articles in the November‐December 2022 issue of the Hastings Center Report explore the complexities of medical decision‐making. A case‐study essay, for example, argues that the dismaying decision to perform resuscitation efforts on a patient who had obviously been dead for some time can be understood in the context of the harmful practice of defensive medicine. A narrative essay concerns whether an adolescent with locked‐in syndrome should be asked her wishes about life‐sustaining interventions, and the articles illuminate (...) the ethical value of the parental role in pediatric decision‐making, an array of ways in which patient decision‐making is interdependent, and the limitations of measures designed to evaluate the quality of a patient's decision and decision‐making process. (shrink)

Increasing complexities facing physicians negotiating the bedside decision continue to fuel the debate over who is the appropriate party to offer ethics consults, should one be needed, during the decision-making process. Some very good arguments have been put forth on behalf of clinical ethicists as being the proper and best party to engage in ethics consultations. However, serious questions remain about the role of the clinical ethicist and his ability to provide the necessary level of objectivity called for in an (...) ethics consult.I argue that the clinician's professional psyche, or mode of thinking as a professional, leaves him little room to maneuver as an objective and detached third party ethics consultant. Several factors are cited and discussed that greatly influence the analyses applied to a case problem by physicians. The most formidable of these factors are habits and the practice of defensive medicine. I conclude that clinical ethicists are less suited for the overall tasks required of an objective consultant in medical cases that appear to involve insurmountable ethical issues. (shrink)

The problem at the heart of “Stemming the Standard-of-Care Sprawl: Clinician Self-Interest and the Case of Electronic Fetal Monitoring,” an article by Kayte Spector-Bagdady and colleagues in the November-December 2017 issue of the Hastings Center Report, is the persistence of a suboptimal standard of care long after evidence-driven approaches would dictate a change. That problem is not simply defensive medicine, or what the authors call “standard-of-care sprawl.” Instead, it is that, in some cases, the standard of care lags (...) behind best practices. It gets stuck. The authors point to the genesis of the stickiness problem in their passing reference to a core truth: “The problem is that standard of care is not synonymous with best or evidence-based medicine.” In my view, we might best understand the persistence of ineffective and even harmful medical interventions by acknowledging the regulatory vacuum in which such practices thrive. It is by default, not by design, that the profession relies on medical malpractice law to set the boundaries on acceptable practice. (shrink)