An abdominal pain patient is sent home from the ED with a flu diagnosis. Staff speak to the patient rudely and dismissively. Hours later, the patient returns to the ED and receives an appendicitis diagnosis. It was too early to diagnose the appendicitis during the first visit, but the patient is immediately suspicious malpractice occurred — not because of care delivered, but because of negative engagement with staff.
“Most medical malpractice lawsuits are initiated because the patient feels that the emergency physician didn’t care, or disrespected them in some way,” says John Tafuri, MD, FAAEM, regional director of emergency medicine at the Cleveland Clinic.
If that same patient perceived a terrific experience, a lawsuit might be much less likely. Many hospitals are investing heavily in “The Patient Experience.” In the ED, “there is a lot of potential for return,” says Tafuri, chief of staff at Fairview Hospital, also in Cleveland. “If you treat the patient with respect, if you are courteous and not condescending, that makes a big difference in how they perceive you.”
Even a fantastic patient experience cannot prevent all litigation. Malpractice lawsuits are likely whenever there is a catastrophic outcome for an ED patient and the standard of care was clearly not met.
“But I think with most lawsuits, that applies. If the patient is angry at something, they are looking to get back at the provider in some way,” Tafuri offers.
Patients who are angry about the way they were treated sometimes report substandard care to convince a lawyer to pursue a claim. “People are not always honest with attorneys. The attorney may look at the ED record and see that the case is not supported even at the most basic level,” Tafuri observes.
Even if no malpractice happened, unscrupulous attorneys might pursue a claim anyway. “Sometimes, lawyers make a mountain out of a molehill. In some cases, that could lead to a settlement,” Tafuri explains.
Tafuri says any ED would benefit from teaching EPs to be more aware of how patients perceive them. Engaging in role-playing exercises are helpful. Record the exercises so they can be viewed and critiqued. Fairview Hospital’s ED used the scenario of telling someone an error was made. “Being honest and forward with the patients can make a difference in a lawsuit not being filed,” Tafuri suggests.
Some EPs’ personality traits rub patients the wrong way. “We all have had times where we don’t come off well to a patient,” Tafuri laments. “But physicians who do this repeatedly have a mannerism or habit which should be corrected.”
It is not always easy to ascertain which EPs fall into this category. Patient satisfaction survey ratings can be misleading because of tiny sample sizes. Tafuri has been rated anywhere from 50% to 99% on patient satisfaction scores in various years, despite the fact the way he practiced was unchanged.
“Any EP can get a complaint about being rude. Even the best EPs come off that way from time to time,” Tafuri says. “The key is to work with someone who is consistently having problems.”
One approach is to ask another provider to work with the problematic EP. Some EPs stand over the patient instead of sitting, look away when the patient is speaking, or appear rushed and dismissive. Colleagues may catch these behaviors and help correct them. “Beyond just reducing your malpractice risk, treating patients with respect is the right thing to do,” says Tafuri.
Excellent communication and perceived empathy can mitigate dissatisfaction from long waits and crowding in EDs, according to the authors of a paper.1 “There is a clear link between malpractice risk and poor patient experience,” says Benjamin A. White, MD, a paper co-author and an attending physician at Massachusetts General Hospital.
Nearly all jurors will have been an ED patient at some point in their lives, or a visitor anxiously waiting with a family member. “A juror is more likely to identify with the plaintiff’s ED experience than the medical decision-making of the EP,” says Ryan M. Shuirman, an attorney at Raleigh, NC-based Yates, McLamb & Weyher. In Shuirman’s experience, two factors are particularly likely to inflame jurors:
• The plaintiff waited a long time to be seen. In reality, most EPs have little control over how quickly patients are seen. Still, jurors are likely to hold the EPs accountable.
“The longer a plaintiff waits to be treated in an ED, the more likely it is that a juror is going to favor the plaintiff,” Shuirman cautions.
If wait time is a central issue in a malpractice case, defense attorneys will want to talk to potential jurors about their own experiences waiting in EDs.
• Providers did not really listen to the patient or family. “While the facts are different in every case, almost all malpractice cases involve some communication issue,” Shuirman reports.
Plaintiffs often claim the ED team did not listen, that the EP failed to address a less-than-desired outcome or express any compassion about it, or that the EP failed to answer lingering questions about why a poor outcome happened.
“Attempting to address a dissatisfied patient before he or she leaves the ED is often the best risk management strategy to reduce claims by patients who feel their questions were not answered,” Shuirman offers.
Many states passed laws that prevent a plaintiff from using the fact that an EP apologized for an outcome to prove negligence. “While it seems so simple, showing some compassion to a patient or family whose outcome was suboptimal can be the best means to prevent a legal claim later,” Shuirman adds.
- Sonis JD, White BA. Optimizing patient experience in the emergency department. Emerg Med Clin North Am 2020;38:705-713.