Malpractice in Surgery: Is Defensive Medicine a Solution?

1. Editorial
Error is an inherent possibility of all human activities. The term malpractice associated with medical errors originates in “Mala Praxis”, since 1794, which is defined as 'neglect or unskillful management of a physician or surgeon' [1]. Since then, "the first recorded medical malpractice lawsuit in the US takes place in Connecticut where a patient died of a surgical complication" [2]. The problem evolved during the 19th Century through lawyers who acted aggressively, with most lawsuits related to errors in treating fractures, dislocations, and amputations [3]. Most lawsuits were for alleged medical errors during the first half of the 20th Century. That is, errors related to the doctor's action: the doctor made something wrong, so-called errors of commission, "such as complications of surgical treatment, and diagnostic failures"[1]. From the 1950s onwards, there was a transition from errors of action to errors of omission. The doctor failed to do what was correct for that particular case. As stated by Berlin [1], "a 1991 study disclosed that 75% of all adverse events due to negligence committed in New York hospitals in the late 1980s involved diagnostic mishaps, usually the result of a physician's failure to do something". In summary, the nature of allegations of negligence against physicians suffered a transformation: early they were sued for doing something wrong; now, they began being sued for failing to do something right. Thus, the physicians began to use conduct called "defensive medicine" (DM), which has been defined as the practice of ordering tests, procedures, and visits or the method of avoiding treatments for patients considered at high-risk to prevent malpractice claims." [5]. In the last decades, the culture of practice of DM spread worldwide due to an increasing number of lawsuits against physicians in all medical specialties, in many countries [6]. The physicians used DM "to lessen their exposure to medical malpractice litigation" or "by fear of malpractice litigation." [5,7].