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Physician-Patient Dialogue:
Key to Avoiding Malpractice Lawsuits>
By Dan Groszkruger,
M.P.H., J.D., C.H.E.
When
your patient's opinion of you goes from "Well, my doctor
says..." to "I'm going to sue that S.O.B.!" what could
account for such a reversal? Two recent research studies may shed
some light on this metamorphosis. One concludes that permanent harm,
more than physician fault, decides lawsuits. The other concludes that
effective physician-patient communication, not the
quality of the care or documentation, is key to avoiding malpractice lawsuits.
Thank
goodness, the vast majority of patients are not litigious (i.e.,
prone or inclined to litigate). Study after study confirms that
patients are normally reluctant to sue their physician for
malpractice, even where obvious misconduct has caused serious harm.
Only a tiny fraction of negligently-harmed patients will actually
file malpractice claims. (However, the incidence of frivolous
lawsuits may be 4 to 5 times as high!)
Of
course, low frequency is small comfort for the physician who,
nonetheless, is named a defendant in a malpractice lawsuit. To make
matters worse, it now appears that the type of harm, not
blameworthiness, is a better predictor of the injured patient's
success. A study appearing late last year in the New England
Journal of Medicine(1) concluded that permanent disability, not
malpractice, is key to the success of a malpractice lawsuit.
The
Bottom Line:
Medical errors will only rarely land physicians in court; but if they
are sued, having done everything right will not necessarily save
physicians from a malpractice award! Clearly, physicians are far
better off avoiding malpractice lawsuits in the first place. Doctors
and courtrooms are not a good mix, even when the physician is present
solely to testify as an uninvolved expert. Thanks to capitation and
managed care, courtrooms pose more threats for physicians than ever before.
It is
no secret that angry patients are more likely to sue. But what really
motivates an unhappy, dissatisfied patient or family to decide to
file a malpractice claim? A recent study in the Journal of the
American Medical Association concludes that bad outcomes,
combined with poor physician-patient communication, are the necessary
ingredients for litigation. In 1993, Wendy Levinson, M.D., and her
colleagues studied routine office visits at 124 physician offices in
Oregon and Colorado. The group examined the relationship between
physician-patient commination and malpractice claims, for primary
care physicians and surgeons. Unlike previous studies, this research
attempted to identify specific communications behaviors associated
with malpractice history. Thanks to the JAMA article, we now
have spotlighted some specific factors that may improve
physician-patient communication.
1.
Length of Primary Care Office Visit:
At a
time when payers are pressuring primary care physicians to squeeze
more patients into each day, this study demonstrates a strong
correlation between extra time spent with patients and lower
frequency of malpractice claims. Since patients dislike feeling
rushed or ignored, physicians who are "too busy" to sit
down, listen attentively, and respond to a patient's questions may
set the stage for problems down the road.
2.
Ability to Establish a Dialogue:
In
addition to allocating sufficient time for a relaxed, friendly
encounter, the physician should encourage two-way communication. The
study identified orientation ("First, I will examine
you, and then we will talk the problem over.") and facilitation
questions ("What do you think it is? Go on, tell me more."),
including humor and laughter and utterances designed
for emotional effect ("You look worried!" or "Good,
I'm happy to hear you are feeling better."), as good
techniques to encourage patient feedback.
Also,
since patients seek a relationship with their primary care
physicians, how a physician says something may be as important
as what is said. In addition to questions about medical
condition ("What can you tell me about the pain?")
and therapeutic regimen ("How have you responded to the medication?"),
the physician should inquire into psychosocial and lifestyle issues ("What's
happening with your son?"), as well as give information ("The
medication may make you drowsy.") and advice ("Call
me if you're not feeling better by next week.").
Proper
orientation counteracts the patient's nervousness and fear of the
unknown ("I will leave time for your questions.")
Facilitative questions encourage the patient to talk ("What
do you think about taking these pills?") while the physician
listens. Use of humor and laughter express warmth, friendliness and
empathy ("That must make it tough for you.") and
build a bond between physician and patient. Imparting information and
advice in a manner that demonstrates the physician's genuine caring ("I'm
concerned that this may happen again in the future.") tends
to diffuse patient anger and resentment. Physicians who have been
sued for malpractice often cite "unrealistic expectations"
on the part of their patients. Encouraging two-way communication
helps the patient develop appropriate expectations about a medical
visit, and prompts the sharing of critical information.
Breakdowns
in communication between physician and patient fuel distrust and
pent-up anger. No one wants to feel that their concerns are ignored,
nor that their problems have been minimized or disregarded. Add in a
bad outcome, and we have achieved the "critical mass" for a
lawsuit. On the other hand, effective physician-patient dialogue
tends to enhance patient satisfaction and encourage healthy outcomes.
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1. |
Brennan,
T, Relation between negligent adverse events and the outcomes of
medial-malpractice litigation. New Eng. J Med. 335(26):1963-67,
December 26, 1996.
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2. |
Levinson,
W. Physician-patient communication: the relationship with
malpractice claims among primary care physicians and surgeons. JAMA.
277(7):553-59, February 19, 1997.
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Dan Groszkruger, MPH, JD,
CHE, is the founder and principal counsel to rskmgmt.inc, in
Solana Beach, CA, offering risk management and litigation management
services to healthare providers. Also, he serves "Of
Counsel" to the law firm of Chapin, Fleming & Winet
in San Diego, CA, where he heads up the firm's Health Care Practice
Group. Groszkruger has more than twenty years combined experience as
a hospital administrator and as a defense trial attorney. He is a
consultant, author and educator in the fields of healthcare risk
management, litigation management, and managed care issues. Rskmgmt.inc
focuses on the new risks created by capitation and managed care, and
assists healthcare providers to maximize their opportunities while
minimizing liability exposures arising out of their managed care activities.
This article is reprinted with the author's permission.
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