Published 12/1/2008
Pete Johnson, Esq.; Timothy S. Johnson, MD

Improved communications reduce litigation

LEADing the way to more effective communication skills

Can improved communications with your patients reduce the prospect of a medical liability lawsuit? The simple answer is “yes.” The difficulty lies in putting effective communication skills to use.

This article discusses the LEAD (Listen, Empower, Advise, and Define) technique to more effective communication. Each step serves as a building block to more effective communication. And while applying these tools in your practice may not eliminate the likelihood of a lawsuit, using them should help reduce your risk.

We developed these four steps after sifting through a host of malpractice lawsuits, speaking with medical malpractice plaintiff lawyers, and surveying stacks of periodicals about the relationship between communication and malpractice claims. Most medical liability claims—whether valid or invalid—result from omissions, such as a failure to diagnose, a misdiagnosis, or a failure to recognize complications. These omissions may be traced to poor communication such as the failure to communicate the need for surgery, a failure to answer questions clearly, a failure to return patient calls, or a failure to see the patient prior to discharge.

Let’s look at each step—Listen, Empower, Advise, and Define—separately to see how each contrib­utes to enhanced communication.

Listen: The goal is understanding
Before meeting with a patient, slow down, clear your mind, and prepare to listen. It only takes a few sec­onds, but it will save you hundreds of headaches. Moreover, don’t just listen, but listen empathetically.

In his bestselling book The Seven Habits of Highly Effective People, Stephen F. Covey describes empathetic listening as seeking first to understand before being understood. He says that communication is “the most important skill in life” and argues that most people fail to communicate because they listen with the goal of replying, rather than of understanding.

A good rule is to listen twice as much as you speak. This practice may be difficult at first, because physicians want to give patients answers, to solve the problem, and to move on. But effective communication requires seeing the issue from the patient’s vantage point, not from the physician’s view. To do so, you must listen not only to what the patient is saying but also to what is not being said.

To check that you truly understand what the patient is saying, repeat a summary of your understanding back to the patient.

Empower: Include the patient in the decision
You should seek to empower your patients to speak. That means creating an environment for open, honest, straightforward communication.

The following tips will help empower patients to feel comfortable about speaking up:

  • Avoid distractions during patient visits.
  • Make eye contact with patients when they are speaking.
  • Ask open-ended questions—such as “what do you think about…?”—to encourage dialogue. You want patients to know that you care about them and understand their concerns; asking questions is the best way to show that.
  • Seek ways to include the patient in the treatment decision-making process.

Orthopaedic surgeon Timothy E. Kremchek, MD, is the perfect example of a physician who empowers his patients. His patients’ family members don’t have to wait in a separate room while he is performing surgery; instead they can watch the surgery from the other side of a glass that separates the viewing area from the operating room. Some people may think he is crazy. This type of open, honest, straightforward communication, however, is helping to grow his practice and build a solid group of happy, well-informed patients.

Advise: Give the patient a roadmap
Now it is your time to speak and to do what you went to medical school for—help people. The best way to advise is to give people a roadmap. Let them know what to expect—good and bad—so they are more informed and prepared.

Have you ever asked someone for directions and gotten even more lost because the directions were poor? Conversely, do you recall the ease of following good directions? People who give directions that include landmarks—such as a gas station, a corner store, the number of traffic lights before the next turn—inspire confidence that the person knows the correct route. And the landmarks help you know you’re on the right path.

Likewise, providing your patients with roadmaps of the perioperative course of events builds their confidence and trust in you as well as promotes effective communication between you and the patient.

Define: Drop the jargon
In giving advice or explaining a diagnosis, avoid medical jargon. People are more satisfied when they understand what you are saying. As professionals, physicians may believe that using medical terminology increases their standing and shows their understanding of a subject. In reality, jargon reduces the power of the communication by taking the patient out of the conversation.

Define complex terms and procedures, and keep your patients in the conversation. Make sure your advice is clear and concise. Make certain “informed consent” forms are truly informing, and that “disclosures of unanticipated outcomes” are clear, too. Send patients home with plain language, written instructions; if possible, involve family members in the process to ensure the patient understands what needs to be done.

Stay in the LEAD
Applying these tips will help you LEAD effective communications. You can enhance your relationships with patients by renewing your commitment to effective communication during every visit. Before seeing a patient again, refresh yourself about previous visits. You’ll find that the avenues of communication open more quickly when a patient feels like he or she is your only patient.

Of course, applying these tools in your practice may not eliminate malpractice claims. The reality is that every physician will likely be sued at least once during his or her career. People naturally look for someone to blame when they are hurt. They (or their attorneys) may look to the person with the deepest pockets (or the person that appears to have the deepest pockets) for compensation.

If, despite your best efforts, an error or omission occurs, consult an expert, if necessary, when making that disclosure. Let honesty and accuracy be your guiding principles. Avoiding communication or a lack of honest communication are surefire ways of making a bad situation worse.

Finally, be genuine. Don’t look at communication as a risk management technique. To be effective, communication must be genuine. People see right through disingenuous communication, and it will not be effective. Instead, look at how you communicate with your patients as a way of enhancing their healthcare experience and growing your practice.

Effective communication im­proves service. It enables you to become more aware of small issues before they become big problems. Effective communication improves your relationship with patients and their families. Angry, dissatisfied patients are more likely to sue. Happy, well-informed patients are less likely to sue.

Remember to LEAD; your patients will love you for it.

Pete Johnson, Esq., is a defense attorney practicing law in Southern California. He can be reached at pete@pjohnsonlaw.com

Timothy S. Johnson, MD, practices orthopaedic surgery in Virginia, and is the Leadership Fellows Program representative on the AAOS Medical Liability Committee. He can be reached at tjohns55@jhmi.edu