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.
■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.
■Levinson, W. Physician-patient communication: the relationship with malpractice claims among primary care physicians and surgeons. JAMA. 277(7):553-59, February 19, 1997.
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.