How you can stop risk-prone communication
It's often the sole reason for suit
The doctor didn't tell me that." "This is the single biggest grievance I hear from plaintiffs and their counsel after a claim has been made," says Gary Genovese, JD, an attorney at Conrad & Scherer in Fort Lauderdale, FL. "It all starts with communication."
One recent lawsuit alleged that a neurologist failed to give a stroke patient tissue plasminogen activator (t-PA), but it was discovered during the litigation that the treatment was contraindicated due to the patient's recent head trauma.
"The physician had good reason not to give the medication but got sued anyway," says Genovese. The patient's wife asserted in her deposition that the physician was "short" with her, never discussed t-PA use, and never explained that he thought it was not safe to give her husband. To make matters worse, there was no documentation in the hospital chart concerning any discussion with the patient's wife on the subject or the reasons the physician believed the drug was contraindicated.
"It was no surprise to me that he was named in the suit. The lack of communication and documentation made my job that much harder," Genovese says.
If the doctor had thoroughly discussed with the patient's wife the use of t-PA, the risks associated with it, and why he thought that it was contra-indicated because of her husband's head injury, preferably with an independent witness present, and documented that all of the patient's wife's questions were answered to her satisfaction, the case would have been far easier to defend, says Genovese.
"Rather, what we were left with was very little documentation, no independent witnesses, and a swearing contest between the doctor and the patient's wife about the 'short' discussion," he says. "It was a much tougher case to defend, particularly with the sympathies of a jury naturally going to the patient and his family."
Evidence continues to grow indicating that physicians who have more patient complaints filed are much more likely to be sued, notes Bradley A. Sharpe, MD, assistant clinical professor of clinical medicine at University of California — San Francisco Medical Center.
"A tiny percentage of physicians are responsible for the largest number of patient and family complaints," Sharpe says. For example, in one large U.S. medical group, 9% of the physicians accounted for half of all unsolicited patient complaints, and further analysis showed that this small group was responsible for more than 50% of risk-management expenses.1,2
"When the authors analyzed the nature of the complaints, it was clear that physicians who communicate poorly, don't follow-up, are less available — or perceived to be so — and are less compassionate are more likely to be sued," says Sharpe.
A little extra time
Genovese says that spending a little extra time explaining what is going on, asking patients if they understand, and asking whether they have any questions can avoid lawsuits if the outcome isn't as favorable as anticipated. "Never be condescending, short, or brusque with a patient or family member, even if they do not return that courtesy to you," he says.
Genovese says that in his experience, patients won't hesitate to sue a doctor with whom they do not have a good relationship. "In fact, I oftentimes get the impression that this is the only reason that a particular doctor was named in a suit with other defendants," he says.
Communication is the culprit
Overall, the literature supports that malpractice suits often are lodged by patients who are unhappy with the relationships with their doctors, says Levinson.
"In the face of a bad event, patients who are angry that their doctor didn't listen, was rushed, or didn't appear to care, are more likely to seek legal advice," she says.
In a 1997 survey of 227 patients and relatives who took legal action, the decision to take legal action was determined not only by the original injury, but poor communication after the original incident.3
A 2002 study audiotaped surgeons speaking to their patients during office visits, then studied the relationship between the a physician's lawsuit claim history and the tone of the physician's voice. Surgeons with more dominance and less concern in their voice tones were much more likely to have previous claims.4 A gruff, disrespectful physician is likely to antagonize patients and make them more likely to sue in the event of a bad outcome, according to Martha Swartz, JD, a Philadelphia-based health care attorney.
"On the other hand, a physician who is an active listener — that is, who looks patients in the eye and asks relevant questions at appropriate points during an exam or history-taking — is more likely to be well-received and, possibly, less likely to be sued," she says. She recommends these communication practices:
• Explain the tests or treatment to be performed and the patient's diagnosis in lay language.
"Physicians who pay attention to the manner in which the convey information, as well as the substance, may be less likely to engender malpractice suits," says Swartz.
• Make eye contact with patient even when utilizing electronic medical records.
Because it is difficult for a physician to maintain eye contact when the physician must type information into a computer, Swartz suggests making a point of doing so when greeting and releasing the patient.
• Avoid interruptions during an exam as much as possible.
• Call the patient about test results directly, or at a minimum, have a qualified staff person call.
"This shows a level of concern that may make the patient less likely to sue," she says.
- Hickson GB, Federspiel CF, Pichert JW, et al. Patient complaints and malpractice risk. JAMA 2002; 287(22):2951-2957.
- Hickson GB, Federspiel CF, Blackford J, et al. Patient complaints and malpractice risk in a regional healthcare center. Southern Medical Journal 2007; 100(8):791-796.
- Vincent C, Phillips A, Young M. Why do people sue doctors? A study of patients and relatives taking legal action. The Lancet 1994: 343(8913):1609-1613.
- Ambady N, Laplante D, Nguyen T, et al. Surgeons' tone of voice: A clue to malpractice history. Surgery 2002; 132(1):5-9.