Defensive medicine among neurosurgeons in the Netherlands: a national survey

The medico-legal climate and healthcare system in the Netherlands differ from those in the United States. The Netherlands has mandatory basic health insurance and government-sponsored long-term care. The Dutch healthcare system manages patient complaints regarding their physicians in a multi-step approach [2, 3, 10]. Patients wishing to share dissatisfaction with their doctors can turn to a complaints mediator provided by the hospital. A complaints mediator is an easily approachable hospital employee whose primary responsibility is to establish an agreement and reconciliation between the patient and the physician. A disagreement can arise from various factors, including when patients feel their input into, and concerns regarding, their treatment options are not being taken seriously. If the complaints mediator fails to remedy patients’ dissatisfaction to their content, the next step would be going to a hospital’s complaints committee. This is an official institution within the hospital’s management structure that handles complaints submitted by letter in a formal way. If the committee rules the complaint is justified, it will start an investigation and possibly impose measures upon a department to prevent future repetition of the mistake. The committee will also submit a final summary of its complaint findings to the hospital’s board of directors. Since January 1, 2017, a third step for a patient would be to turn to a conciliation board (Geschillencommissie), an independent institution that can investigate complaints and also impose measures on caregivers. These boards have replaced local complaint committees on January 1, 2017, under the new Healthcare Quality, Complaints, and Disputes Act (Wet Kwaliteit, Klachten en Geschillen in de Zorg) [9, 10].

Aside from these options, patients may choose to turn to the disciplinary board. Disciplinary law is a special branch of the Dutch judicial system that deals specifically with cases of malpractice by physicians and other healthcare professionals, such as pharmacists and dentists. The disciplinary board consists of both medical and legal professionals and is independent from any health-related institution; rather, it is a part of the judicial power. The board focuses on the healthcare provider and can impose measures including a warning, a reprimand, a fine of up to €4500 ($4981.50), a temporary suspension, or a permanent revocation of a medical license depending on the severity of the misconduct [2].

For patients seeking financial compensation, there are several options. The most straightforward would be for patients to approach the hospital’s insurance company, present their cases, and request compensation. If the insurance company concludes that the financial claim is legitimate and proportional, it will compensate. In practice, about a third of applications are approved [2]. A verdict from the disciplinary board may help the patient when applying; the committee may even advise patients to go to the insurance company. If the insurance company fails to grant any financial compensation, the second step would be turning to the conciliation board as described above; the board has the authority to grant compensation of up to €25,000 ($27,675) [10]. The other option would be to sue in civil court.

The aforementioned steps do not have to be followed in the described order; a patient is free to turn to any of the institutions at any time. Patients may have various motivating factors for going to any of these institutions, including a desire for official recognition of a complaint, financial compensation, prevention of future instances of similar malpractice, or even retribution. It should be noted that any of these motivations can be fulfilled by options that require significantly less time, money, and effort than suing in civil court.

Several routes might be taken simultaneously; a patient could go to the disciplinary board to prevent future malpractice and to civil court for financial compensation. This has happened at least once to a neurosurgeon [6], who was acquitted by the disciplinary board but condemned in civil court. Ultimately, the Supreme Court (Hoge Raad) ruled that civil court rulings have to meet an increased burden of evidence if they wish to deviate from disciplinary board decisions, creating legal precedent protecting physicians [3].

This multi-step approach may play a role in the fact that our respondents reported an average of only 0.34 lawsuits in their entire careers, with 41 neurosurgeons reporting to have never been sued. Another reason for the infrequent lawsuits could be the fact that in Dutch civil court, the costs of the lawsuit process, as well as the legal fees of the winning party, have to be paid by the losing party if the judge decides so [11]. This may serve as a deterrent for filing frivolous lawsuits.

In our analysis, we have demonstrated that Dutch neurosurgeons who were sued in the past may be more likely to practice defensive medicine in several ways, most notably by ordering extra imaging. This increase in defensive behavior is seen mainly after civil court claims and to a much lesser degree after appearance before the disciplinary board. This could suggest that alternatives to civil financial claims might be able to limit the practice of defensive medicine.

A previous report by Studdert et al. demonstrated that physicians’ level of confidence in their insurance coverage and their perception of the burden of their malpractice premiums were important predictors of defensive behaviors [17]. Our survey showed that only two neurosurgeons view their insurance premiums as burdensome (Table 3) and that 22 were “very confident” that their insurance policies provided adequate coverage (Table 4). Accordingly, one-third of Dutch neurosurgeons pay less than €1000 ($1107) in annual malpractice insurance premiums, and almost half reported that their malpractice premiums were less than 5% of their annual incomes (Table 3). In terms of actions that may influence defensive behavior, only three Dutch neurosurgeons in our survey viewed their patients as “potential lawsuits” (Table 6). This is in stark contrast to the United States, where about 70% of neurosurgeons indicated they lack confidence in their insurance coverage, even though they pay as much as 15% of their annual incomes on insurance premiums. Accordingly, 75% of American neurosurgeons viewed their patients as “potential lawsuits”. The results from the American and Dutch surveys combined support Studdert’s conclusions, as they indicate both a lower perceived burden and more restricted practice of DM in the Netherlands when compared to the United States [14, 17].

In the United States, defensive medicine practices predominate in high-risk specialties, such as neurosurgery and orthopedic surgery. A previous study looked at the largest physician-owned mutual insurance company in the United States and found that over a 5-year period, more than $600,000 was paid per neurosurgeon, making neurosurgery the most vulnerable specialty. This amount was double that of the next most vulnerable specialty, obstetrics. Additionally, roughly half of the neurosurgeons reported being sued at least once over that 5-year period, with roughly 25% having two suits filed against them [13]. Furthermore, in the USA, unwarranted lawsuits are frequently filed; a previous study found that 85% of lawsuits against neurosurgeons in a tertiary academic center were because the intended benefits of surgery were not seen despite the uneventful operations and were eventually withdrawn [7, 16, 18]. These studies demonstrate why neurosurgeons in the United States pay high malpractice premiums, with neurosurgeons from some US states paying as much as $400,000 annually in insurance premiums [15]. This is in stark contrast to the Netherlands, where most neurosurgeons pay less than €1000 ($1107).

Perhaps most interesting is Dutch neurosurgeons’ perception of defensive medicine in the United States. Four out of five respondents who practiced in the USA reported practicing more defensively than they would in the Netherlands, most often citing adoption of institutional culture as an explanation for this difference. Furthermore, the majority of Dutch neurosurgeons believe liability increases the cost of neurosurgical practice in the USA, and that DM is a significant problem in the USA (Table 9). However, since neurosurgeons are not legal experts, and individual perceptions are subjective, these particular responses should not be seen as an objective assessment of the US defensive medicine climate. Rather, these reflect the perception of the US climate among Dutch neurosurgeons.

Likewise, several remarks submitted by respondents suggest the perception and concern among some that the Dutch DM situation is gradually shifting towards the US’s. In particular, parts of the recently passed Healthcare Quality, Complaints, and Disputes Act have not been received entirely positively by the Dutch medical community. It is believed the introduction of low-effort financial claims through the conciliation board will increase the frequency of patients filing such claims and subsequently increase physicians’ DM practices. In debates revolving around this topic, the “American situation” is sometimes referred to as a negative outcome that should be avoided [1]. It remains to be seen what effect this law will have on physician behaviors several years down the road.

For Dutch neurosurgeons, oversight of the medico-legal system and the defensive climate both in the Netherlands and in other countries are essential for debate between all involved parties. Clinical decision-making, including defensive medicine, may be influenced by various incentives, such as legal, financial, and cultural motives. Insight into these motives is ultimately key to optimize clinical decision-making to ensure the best patient care.

There are several limitations to our study. First of all, we were not able to raise the response rate of our survey above 33%, despite re-distributing the questionnaire several times. This could have resulted in a cross section of surgeons that is not fully representative of the entire Dutch neurosurgical community. For instance, surgeons with a large amount of complaints made against them or frequent appearances before the disciplinary board may perceive this as shameful and be disinclined to complete even an anonymous survey on this subject, which may have resulted in a selection bias. Respondents may also be less eager to openly admit that actions were taken against them, which may result in a reporting bias. Some questions had particularly low response rates because they were only applicable to particular subsets of respondents (e.g., only five surgeons had practiced in the USA), which may limit their implications. This questionnaire did not inquire whether surgeons performed exclusively cranial or spinal operations, which may be a crucial factor determining DM due to the difference in nature of the procedures. The differences among patients, procedures, and outcomes related between cranial and spinal neurosurgery may result in different forms of DM.

Physicians’ perceptions and beliefs play an important role in defensive medicine, but are subjective. These are, therefore, difficult to measure and should not be viewed as objective indicators of reality. Lastly, many factors may contribute to defensive behaviors among neurosurgeons, e.g., personal experience, confidence, and risk perception.

In future studies, it may be interesting to send out a similar questionnaire to European Association of Neurosurgical Societies (EANS) members to evaluate the DM climate on a European scale. However, differences in local legislations may contribute greatly to DM and make results hard to compare.