Malpractice Concerns, Defensive Medicine, and the Histopathology Diagnosis of Melanocytic Skin Lesions

Linda J. Titus, PhD; Lisa M. Reisch, PhD; Anna N. A. Tosteson, ScD; Heidi D. Nelson, MD, MPH; Paul D. Frederick, MPH, MBA; Patricia A. Carney, PhD; Raymond L. Barnhill, MD, MSc; David E. Elder, MBChB, FRCPA; Martin A. Weinstock, MD, PhD; Michael W. Piepkorn, MD, PhD; Joann G. Elmore, MD, MPH


Am J Clin Pathol. 2018;150(4):338-345. 

In This Article

Abstract and Introduction


Objectives: The impact of malpractice concerns on pathologists' use of defensive medicine and interpretations of melanocytic skin lesions (MSLs) is unknown.

Methods: A total of 207 pathologists interpreting MSLs responded to a survey about past involvement in malpractice litigation, influence of malpractice concerns on diagnosis, and use of assurance behaviors (defensive medicine) to alleviate malpractice concerns. Assurance behaviors included requesting second opinions, additional slides, additional sampling, and ordering specialized tests.

Results: Of the pathologists, 27.5% reported that malpractice concerns influenced them toward a more severe MSL diagnosis. Nearly all (95.2%) pathologists reported practicing at least one assurance behavior due to malpractice concerns, and this practice was associated with being influenced toward a more severe MSL diagnosis (odds ratio, 2.72; 95% confidence interval, 1.41–5.26).

Conclusions: One of four US skin pathologists upgrade MSL diagnosis due to malpractice concerns, and nearly all practice assurance behaviors. Assurance behaviors are associated with rendering a more severe MSL diagnosis.


The incidence of melanoma in US whites has risen steadily over the past few decades.[1] The American Cancer Society estimated 91,270 new cases of melanoma will be diagnosed in the United States in 2018, and 9,320 individuals will die of the disease.[2]

At present, complete surgical removal of an early melanoma offers the best chance of curing this disease, underscoring the importance of timely removal and an accurate histopathology diagnosis. Unfortunately, the pathologic interpretation of melanoma is difficult, particularly for melanoma in situ and early invasive melanoma.[3,4] Given these challenges, it is not surprising that a missed diagnosis of melanoma has been cited as the most common cause of medical malpractice claims against a pathologist.[5] Dermatopathologists rank second highest among all medical specialties for the number of malpractice verdicts exceeding $1,000,000.[6] The risk of malpractice for those who interpret melanocytic lesions has been attributed to a variety of factors, including lesion complexity and the difficulty of distinguishing between benign and invasive melanocytic lesions with currently available histopathologic criteria, even among highly skilled dermatopathologists.[3,7]

To allay concerns about medical malpractice litigation, many physicians practice defensive medicine. Defensive medicine includes the use of assurance behaviors (eg, ordering additional tests, requesting second opinions) that are intended to reduce exposure to malpractice litigation but may not clinically benefit the patient.[8] The use of assurance behaviors is thought to be widespread in the United States and appears to be increasing.[9] National surveys indicate that 88% to 91% of physicians practice defensive medicine or assurance behaviors to reduce their risk of malpractice litigation.[10–12] In addition, in a recent survey, 41% of medical students and 53% of medical residents reported being taught assurance behaviors by an attending physician.[13]

We previously reported that a third of participating pathologists who regularly interpret melanocytic skin lesions (MSLs) had past experience with malpractice litigation and that this experience was not associated with the use of assurance behaviors.[14] The present report expands our past investigation in two important areas. First, we examine whether pathologists' concerns about medical malpractice influence the direction of their diagnosis when interpreting MSLs and, specifically, whether medical malpractice concerns result in upgrading an MSL diagnosis. Second, we evaluate an array of pathologist characteristics, including past malpractice experience and the use of assurance behaviors in relation to the influence of malpractice concerns on the direction of MSL diagnosis.