Defensive medicine on the rise: How doctors run risky tests we don't need as they fear being sued


It was nearly midnight at a paediatric A&E department in a busy Midlands hospital. 

The consultant had been on duty without a break for nine hours when a sick baby was brought in by its concerned parents.

The child had not been feeding for 24 hours and had a rash. 

Exhausted after making a succession of life-or-death decisions, including one resuscitation shortly beforehand, the doctor swiftly weighed up the options for his tiny patient.

The child’s symptoms, most of the time, would not indicate anything serious. But they could be a sign of sepsis, the body’s life-threatening reaction to an infection.

Margaret Simson (above), 73, from Corstorphine, Edinburgh, ended up in intensive care and spent two years with a stoma bag after an 'unnecessary' colonoscopy procedure to investigate chronic bowel symptoms

Margaret Simson (above), 73, from Corstorphine, Edinburgh, ended up in intensive care and spent two years with a stoma bag after an ‘unnecessary’ colonoscopy procedure to investigate chronic bowel symptoms

Medics admit that defensive medicine is rife, thanks to the ever-rising tide of complaints and clinical negligence claims against the NHS. Defensive medicine is when doctors carry out a test or procedure or offer treatment that may not be warranted, simply in order to avoid the remote possibility of a complaint or legal action should the patient be unhappy. (File image)

Medics admit that defensive medicine is rife, thanks to the ever-rising tide of complaints and clinical negligence claims against the NHS. Defensive medicine is when doctors carry out a test or procedure or offer treatment that may not be warranted, simply in order to avoid the remote possibility of a complaint or legal action should the patient be unhappy. (File image)

‘It was midnight, I hadn’t eaten or drunk anything or had a break – I worried about whether I could make the right decision,’ the doctor says.

‘I had in my mind recent high-profile cases where doctors had been prosecuted for getting it wrong. Speaking to a colleague, we realised no one would thank us for doing nothing.’

The consultant, who asked not to be named, admitted the child for blood tests and a lumbar puncture – an invasive procedure which involves using a needle to extract fluid from the spine to look for signs of infection.

It often needs to be performed more than once; complications, although rare, include nerve damage, headaches and bleeding. 

The parents, though, were happy that everything was being done to rule out their worst fears.

The baby was fine and will recover. But this well-respected senior doctor has been left with doubts over whether their decision – this happened just last week – was truly necessary.

‘In the cold light of day, the next morning, you think, ‘Why did I do that?’ If it had been at the very beginning of the shift, I’d have made a different decision.’

ON MEDICAL MINEFIELD THIS WEEK

Do doctors give patients treatments they don’t need because they’re scared of being sued if they don’t? 

One woman tells how defensive medicine left her health in ruins – on the Medical Minefield podcast, which you can listen to by clicking here. 

It’s an astonishing confession: a healthcare professional candidly revealing that a patient was subjected to needless tests and investigations, driven, at least in part, by fear – not just the fear of missing something vital for the sake of the patient but the fear of being sued for it.

It is not a unique, or even unusual situation. Medics admit that the practice, known as defensive medicine, is rife, thanks to the ever-rising tide of complaints and clinical negligence claims against the NHS.

Defensive medicine is a broad term, encompassing a range of situations. 

But in a nutshell it’s when doctors carry out a test or procedure or offer treatment that may not be warranted, simply in order to avoid the remote possibility of a complaint or legal action should the patient be unhappy. 

It could be that the patient demands something which isn’t needed and the doctor relents. Or it could be, as in the case just described, over-zealous investigations or treatment done ‘just in case’.

In one study, 87.5 per cent of doctors admitted that they’d practised defensive medicine of some kind.

Invasive biopsies carried out on harmless lumps and growths. Patients with mild heart disease undergoing stent operations that may not benefit them at all.

X-rays and CT scans being carried out for common headaches and bad backs. Antibiotics over-prescribed and blood tests over-ordered. 

Neurologist Dr Jenny Vaughan, chairman of the Doctors’ Association UK, told The Mail on Sunday’s Medical Minefield podcast that it had become ‘a massive problem’.

‘There is no part of the NHS that the long tentacles of defensive medicine don’t reach,’ she said.

This comes with huge financial costs.

But what’s the real harm in a few extra tests, or pills, just to be on the safe side?

Well, there is also a major downside for patients, as tests and procedures carry risks.

Just ask Margaret Simson. The 73-year-old, from Corstorphine, Edinburgh, ended up in intensive care and spent two years with a stoma bag after an ‘unnecessary’ colonoscopy procedure to investigate chronic bowel symptoms.

In one study, 87.5% of doctors admitted that they'd practised defensive medicine of some kind. Invasive biopsies carried out on harmless lumps and growths. Patients with mild heart disease undergoing stent operations that may not benefit them at all. X-rays and CT scans (file image) being carried out for common headaches and bad backs. Antibiotics over-prescribed and blood tests over-ordered

In one study, 87.5% of doctors admitted that they’d practised defensive medicine of some kind. Invasive biopsies carried out on harmless lumps and growths. Patients with mild heart disease undergoing stent operations that may not benefit them at all. X-rays and CT scans (file image) being carried out for common headaches and bad backs. Antibiotics over-prescribed and blood tests over-ordered

Margaret, who runs a holiday park, had been referred twice previously for the same procedure after experiencing bowel urgency – and both times she had been told that there were no signs of anything sinister.

A colonoscopy – a camera on a thin tube used to check inside the bowel – is the main tool used to diagnose bowel cancer, and about 650,000 are carried out in the UK every year.

But demand for them is growing, despite the fact there is a small risk that the instruments used can puncture the delicate tissue of the bowel. This is a life-threatening complication, and a third who suffer it will die.

For that reason, patients are first generally offered a blood or stool test. In 2018, ahead of her referral, Margaret was not.

The procedure was, she says, among the biggest regrets of her life. She spent three weeks in intensive care and developed sepsis.

Today, life remains difficult. ‘I regret being in that operating chair,’ she says.

‘I’ve had lots of problems. They were trying to find out what was happening to me but now I see it was unnecessary. They didn’t even find anything worrying.’

The figures which underpin the defensive medicine trend are stark. A report by the Academy of Medical Royal Colleges in 2014 found that £2.3 billion a year was wasted by the NHS on unnecessary tests and procedures.

Professor Sir Bruce Keogh, in a report for NHS England in 2015, highlighted how dramatic the impact can be for patients – for example, one woman in seven has a ‘needless’ hysterectomy. 

Surgical removal of the womb is offered for everything from cancer to the abnormal tissue growth condition fibroids, but in the case of the latter the operation may be given as a quick fix over exploring more complex surgical and drug options that would leave the womb in place.

Recent high-profile criminal cases 'make doctors paranoid', according to Prof Roger Kirby, president of the Royal College of Medicine. He points to the case of trainee paediatrician Hadiza Bawa-Garba (above), who was convicted of manslaughter after six-year-old Jack Adcock died of sepsis that she had mistakenly diagnosed as gastroenteritis. Bawa-Garba has had her licence to practise restored ¿ but the case proves doctors today risk being criminalised for their mistakes

Recent high-profile criminal cases ‘make doctors paranoid’, according to Prof Roger Kirby, president of the Royal College of Medicine. He points to the case of trainee paediatrician Hadiza Bawa-Garba (above), who was convicted of manslaughter after six-year-old Jack Adcock died of sepsis that she had mistakenly diagnosed as gastroenteritis. Bawa-Garba has had her licence to practise restored – but the case proves doctors today risk being criminalised for their mistakes

In other cases, routine health checks can flag up tiny lumps or lesions inside the body that may never have caused any problem. But once discovered they cause patients worry and doctors will feel they must operate.

Undoubtedly influencing doctors’ decision-making are the rising clinical negligence claims against the NHS, which cost about £8billion a year – half in legal fees alone.

Recent high-profile criminal cases ‘make doctors paranoid’, according to Professor Roger Kirby, president of the Royal College of Medicine. 

He points to the case of trainee paediatrician Hadiza Bawa-Garba, who was convicted of manslaughter after six-year-old Jack Adcock died of sepsis that she had mistakenly diagnosed as gastroenteritis.

  • Written complaints to the NHS dipped during the pandemic, from 113,000 in 2019 to 84,000 in 2020.
  • Clinical negligence claims against maternity services make up two-thirds of all legal cases brought against the NHS.

Surgeon David Sellu was jailed after a patient with a perforated bowel died following delays to their surgery. 

Sellu later had his conviction quashed, and Bawa-Garba has had her licence to practise restored – but these cases prove doctors today risk being criminalised for their mistakes.

Prof Kirby said: ‘Doctors are playing safe to avoid referral to the General Medical Council or prosecution. You just want to get to retirement without being referred to the GMC.’

It’s not just fear of sanctions. The ‘guilt and shame’ doctors feel after a mistake, or a missed diagnosis, stays with them for ever, he adds. 

But the reality is also that, unless things go wrong, patients are usually happy to be referred for tests and investigations because it alleviates their own uncertainty and anxiety.

Patients’ wants – as opposed to needs – are partly responsible for driving the trend, doctors say.

‘It’s the society we live in – people are not so deferential to doctors and there’s a lot of false information on the internet, as well as information which is educating people about their health but which also becomes difficult to digest,’ Prof Kirby adds.

‘The net result is that you get complaints when patients don’t get what they expect. Take the example of someone with a breast lump. Almost certainly it’s benign, and in the past you’d reassure the patient and tell them lumpy breasts can be normal. 

‘But patients might not like this, as they can feel you’re not taking their concerns seriously. Today you’d say, “Just to be on the safe side we’ll get a mammogram.” 

‘But mammograms use X-rays, and these can actually raise the risk of cancer – it’s a tiny risk, but a reason not to give the scan without good medical justification.

Minna Johansson, a GP in Sweden and director for Cochrane Sustainable Healthcare, wrote about defensive medicine last year. 

‘Doctors failing to diagnose are resented and sometimes punished, while doctors who cause suffering through overdiagnosis and overtreatment are not,’ she said. 

The figures which underpin the defensive medicine trend are stark. A report by the Academy of Medical Royal Colleges in 2014 found that £2.3 billion a year was wasted by the NHS on unnecessary tests and procedures

The figures which underpin the defensive medicine trend are stark. A report by the Academy of Medical Royal Colleges in 2014 found that £2.3 billion a year was wasted by the NHS on unnecessary tests and procedures

‘Much too seldom do we consider the potential harm for our patients of those investigations we do ‘just in case’.’

She added: ‘We think there’s no harm in knowing more by doing an investigation.

‘But radiation causes harm. Biopsies can cause a bleed. Finding a benign abnormality in your brain when having a scan to needlessly investigate something else can cause massive harm – people have died from surgery to remove it, when it may never have caused a problem.

‘As a society, we’re not good at dealing with uncertainty.’

A common practice in cardiology is a case in point. 

When scans revealed blocked blood vessels in the heart, research shows medication such as statins, beta blockers and aspirin are often the best way, in these cases, to stop a heart attack. 

Despite this, a surgical procedure to insert a stent – a metal cylinder which holds open the artery walls – is often given.

One cardiologist, speaking anonymously, says: ‘You find a blockage, you worry, and the patient worries.

‘Even though the best evidence shows inserting a stent could do more harm than good, it feels like ‘doing something’.’

One person in 50 with a stent will experience serious complications, including heart attacks, strokes or bleeding.

Keyhole surgery in the knee to treat painful and damaged joints, a procedure known as knee arthroscopy, has been found to be ‘overused, ineffective and potentially harmful’, with no benefit over placebo surgery. Yet 150,000 are still performed every year in the UK.

The pandemic may have made the situation worse.

GPs have seen fewer patients in person and the temptation for some has been to err on the side of caution and offer a referral for detailed investigation.

This has ‘undoubtedly’ added to the record six million people currently on hospital waiting lists, and the ‘swamped’ urgent cancer pathway, according to Prof Kirby.

One 18-year-old reported that her GP referred her for an urgent cancer investigation after finding a breast lump.

The GP refused to see her in person and made the referral despite the chances of a malignancy being vanishingly rare.

The mother, also a GP, said: ‘It’s ridiculous. The doctor is wasting a precious appointment.’

Dr Johansson says that the pandemic had also offered a crucial opportunity to move away from defensive medicine.

‘We went from referring too much to weighing up the risks and benefits again,’ she says. ‘Hospitals were suddenly dangerous places for some patients and not a resource to use lightly.’

There are lessons to be learned from that, she says.

As another doctor wrote on Twitter: ‘We need to do the right things for the right people, not everything for everyone.’

How can we get the Covid pill, and is the pandemic on the wane?

I’ve heard the UK has a pill to fight Covid – who will get it?

On Wednesday the UK became the first country to approve the use of a Covid antiviral drug. Called molnupiravir, it was shown in US trials to cut hospitalisations by 50 per cent. 

The trial also found the pill, taken twice daily, was most effective if given immediately after diagnosis.

UK regulators recommend that molnupiravir be given as soon as possible following a positive Covid test, and within five days of symptoms starting.

But it will be offered only to the most vulnerable. This includes the over-60s, people with conditions such as diabetes and heart disease, and obese people.

The NHS has yet to explain how the drug will be distributed. 

And just 480,000 doses have been bought, so with roughly 40,000 new Covid cases a day, the supply is unlikely to last the winter.

Other antiviral drugs may soon be on the way, though. 

On Friday, Pfizer announced that its antiviral pill reduced the risk of hospitalisation and death by 89 per cent. The UK has already ordered 250,000 courses.

When are Covid cases expected to peak?

Some experts believe Covid infections may already have peaked and could soon decline at speed. 

On Friday, the Office for National Statistics published its latest Covid-19 infection survey, which showed that over the past seven days, the infection rate in England had not increased, with about one person in 50 currently infected with the virus.

Crucially, the survey also found that infections were now falling in children. Experts believe that if these infections continue to fall, infections in other age groups will also decline.

Professor Jim Naismith, director of the Rosalind Franklin Institute, said: ‘The prevalence in teens shows a trend downwards from high levels. This age group had alarming levels of infection and this was driving case numbers.’

While scientists argue that it is still too early to see the effect of the booster vaccine campaign, many believe this will be seen in a matter of weeks.

Professor Paul Hunter, of the University of East Anglia, said the figures offered ‘some reassurance’ that Covid infections in England may indeed have peaked.

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