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Published 2/1/2015
Thomas B. Fleeter, MD

Talking Your Way Out of a Lawsuit

Good communication is a fundamental step in avoiding medical liability lawsuits

The common conception is that malpractice lawsuits arise from greedy patients and aggressive lawyers. However, actual analysis of the root cause of medical liability lawsuits shows that skilled surgeons can be frequently sued while doctors who are mistake-prone may never get sued.

In his best-seller Blink, Malcolm Gladwell explains this conundrum: “The overwhelming number of people who suffer an injury due to negligence from a physician never file a malpractice suit at all. Patients don’t file lawsuits because they’ve been harmed by shoddy medical care. Patients file lawsuits because they’ve been harmed by shoddy medical care and … they were rushed or ignored or treated poorly.”

For example, among all hospitalized patients who are harmed by a medical error, less than 3 percent actually file a medical liability claim. Injured patients may have several reasons for not filing a lawsuit (expense of hiring an attorney, low probability of success, uncertainty about the cause of injury). However, research supports the fact that patients don’t sue physicians they like.

A study at the University of Toronto by Wendy Levinson, MD, recorded hundreds of conversations between physicians and their patients. The group of physicians was split; half had never been sued and half had been sued twice or more. Dr. Levinson found that the physicians who had never been sued spent an average of 3 minutes longer with each patient than the physicians who had been sued. Although the amount or quality of information provided did not differ between the groups, the suit-free doctors were more likely to lay out a plan, engage in active conversations, and laugh during the visit.

Conversely, patients will file lawsuits for the following reasons:

  • desire to prevent a recurrence of the incident
  • desire for an explanation of the incident
  • desire for financial compensation for the injury
  • desire to hold physicians accountable

Relationship is key
The dominant theme in all studies examining the root cause of medical liability lawsuits is a breakdown in the patient-physician relationship. Specifically, patients identified the following problems:

  • physician did not listen
  • physician did not speak candidly
  • physician attempted to mislead the patient
  • physician failed to discuss predictable complications
  • physician was not available to the patient
  • physician failed to understand the patient’s perspective

Take, for example, the case of a 50-year-old woman who underwent a knee replacement. An intra-operative injury to the popliteal artery was unrecognized for 3 days despite daily visits by her physician. She ultimately required an above-knee amputation. Despite this tragic complication, the patient did not file a lawsuit. “I didn’t want to sue my doctor,” the patient explained. “I like him and he’s always been so nice to me. Besides, he held my hand the whole time.”

The AAOS has been proactive in supporting and fostering positive patient-physician communication. According to the AAOS advisory statement on the importance of good communication in the patient-physician relationship, “good communication has a favorable impact on patient behavior, patient care outcomes, and patient satisfaction, and often reduces the incidence of malpractice lawsuits.”

Communications skills
Specific communication skills can decrease the likelihood of malpractice suits while improving outcomes and encouraging patient compliance.

Engage the patient—Listen not only to what is said but also to what is not said. Despite time constraints during an office visit, resist the tendency to interrupt patients. A good way to end each visit is by saying, “Have I answered all your questions and is there anything else you would like to talk about?”

Display empathy—Try to sit during the office visit. Avoid distractions such as interruptions or cell phones. Showing empathy and concern lowers patient anxiety and increases patient satisfaction.

Educate the patient—Make sure that a discussion of the problem is aimed at the patient’s ability to communicate and understand. Use drawings, handouts, and video materials to complement the office visit. Patients who leave the office with unanswered questions tend to be angry and dissatisfied.

Enlist the patient—Noncompliance with physician instructions is more the rule than the exception. Engaging the patient in arriving at a diagnosis and developing a treatment plan can help improve compliance. Provide a road map. For example, if one treatment does not work, outline the follow-up steps. Keep treatment regimens simple. Provide written instructions. Make sure to outline risks, side effects, and anticipated out-of-pocket costs.

Nonverbal communication skills are also critical. In his article, “Etiquette-Based Medicine,” Michael Kahn, MD, identifies a string of common complaints, such as, “My doctor never smiles” and “He just stared at the computer screen.”

Dr. Kahn provides a recommended checklist for each visit. Items on the list include the following:

  • Knock and ask permission to enter the exam room.
  • Always introduce yourself.
  • Shake hands, bump fists, or otherwise welcome the patient.
  • Sit down and try to smile.
  • Ask how the patient feels.
  • At the end of the visit, ask the patient if all his or her questions have been answered.
  • Try to lay out a “road map” for treatment. That is, explain each step in treatment and identify all reasonable treatment options.

In summary, as physicians, we do have control over some circumstances that contribute to patients’ filing lawsuits. Although we can not control all of the factors, we can have significant influence over the quality of the patient-physician relationship. Good communication is the foundation of a strong patient relationship. Good communication can positively influence outcomes, satisfaction, and reduce the incidence of malpractice lawsuits.

Thomas B. Fleeter, MD, chairs the AAOS Medical Liability Committee. He can be reached at bonedock@comcast.net

Editor’s note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of Robert R. Slater Jr, MD, ORM editor. Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional. Email your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.


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