Litigation and defensive clinical practice: Quantifying the problem

Objective: To assess the evidence for claims about a rise in defensive clinical practice, particularly within maternity care; to describe an attempt to quantify the extent of defensive practice; and to identify areas for further research. 

Design: Review of existing literature and a large scale postal survey. 

Participants: Over 2000 midwives and obstetricians, mostly based in Scotland. 

Findings: Several claims have been made about the incidence of litigation, and its apparent effects on clinical practice. These effects, referred to as defensive practice, include both risk avoidance and risk-reduction strategies. Fears about recruitment to and retention within high-risk specialties have been expressed, especially in the USA. A majority of those midwives and obstetricians surveyed believed that litigation has caused a rise in defensiveness, and there was some agreement between the two groups about what constitutes defensive practice. However, there were discrepancies between the examples of defensive practice given by practitioners and what they admitted their own response to be. 

Conclusions: Defensiveness is believed to be fairly commonplace, but because of difficulties in defining and quantifying the concept of defensiveness it is unclear what the exact implications for clinical practice may be. Further research is required to establish this.