Question: Doctors who are most subject to lawsuits:
A. Are ultrabusy practitioners.
B. Have poor interpersonal skills.
C. Talk down to patients.
D. Are often in high-risk specialties such as neurosurgery and obstetrics.
E. All of the above.
Answer: E. All choices are correct. The first three speak to hasty evaluations, poor communication, and arrogance. These behaviors predictably get doctors into trouble. Option D describes doctors who must inevitably deal with catastrophic and tragic injuries, with potentially huge awards for the plaintiff who successfully alleges negligence.
What prompts a lawsuit are poor communication and the perception that the physician is uncaring and at fault for an unfavorable outcome. Yet quality of medical care correlates poorly with malpractice lawsuits. In one study, the quality of treatment as judged by peer review was not different in frequently sued versus never-sued doctors (JAMA 1994;272:1588–91). In another study on the relationship between malpractice and patient satisfaction, patients of doctors with prior malpractice claims reported feeling rushed, feeling ignored, receiving inadequate explanations or advice, and spending less time during routine visits, compared with patients of doctors without prior claims (JAMA 1994;272:1583–7). Communication problems exist in more than 70% of malpractice cases (Arch. Intern. Med. 1994;154:1365–70).
In another study, the authors asked 160 adults to view a videotape of a clinical encounter that resulted in complications. In one scenario, the doctor used positive communication behaviors such as eye contact and a friendly tone of voice, and in another scenario, negative communication behaviors such as not smiling (West J. Med. 1993;158:268–72). The videotape viewers were then asked whether they would be inclined to sue the doctor.
The viewers expressed increased litigious intentions when the physician used negative communication behaviors. These results prompted the authors to state: “Positive communications would result in less litigiousness because the physician is viewed as having cared about the patient and thus having acted in good faith. … Long before there is any medical outcome to be concerned about, the patient may believe that the physician has already done something 'wrong' simply by relating in what is perceived to be an uncaring manner. This may set the stage for later retaliation if something does go wrong.”
The authors offered this advice: “To lower litigation risk by using extra medical procedures and tests, consultation, and extensive documentation, often known as 'defensive medicine,' may miss the point. Defensive medicine is not so much a tool to prevent lawsuits as it is to win them if they do occur. But if the intention is to prevent a lawsuit in the first place, forging a physician-patient bond that can effectively resist the pressure of our litigation-crazed and socially antagonistic society seems indispensable.”
Good advice, indeed. Every effort should be made to communicate effectively, with empathy and tact. Communicating well begins with active listening. Patients want their doctors to listen to them and to explain their conditions and treatment plans in simple, understandable language. The physician should give patients ample opportunity to tell their story and to ask questions. In one well-publicized study, only 23% of patients were able to complete their opening statement before the doctor interrupted, which occurred an average of 18 seconds after the patient began to speak (Ann. Intern. Med. 1984;101:692–6).
Do not hesitate to call the patient or family members at home to remind, reassure, or clarify. This is especially important if the treatment or test procedure had lasted longer than usual, was traumatic, was complicated, or may result in posttreatment complications. Answer or return all patient phone calls in a timely fashion. It is usually best to make the call yourself rather than relegate it to an assistant. Patients appreciate a doctor who has taken the time to personally return a phone call, and appreciative patients usually do not sue. Regarding phone conversations, note the four basic rules: listen and instruct carefully; insist on seeing the patient or have the patient go to the emergency department if there is any doubt; ask the patient (or pharmacist) to repeat your instructions or orders to minimize miscommunication; and document everything in writing. Risk managers warn in particular of calls concerning abdominal or chest pain, high fever, seizures, bleeding, head injury, dyspnea, tight orthopedic casts, visual complaints, and onset of labor.
Contact the author at siang@hawaii.edu.