Doctors can reduce malpractice by being better people

My father, although retired, is a general and thoracic surgeon, triple boarded in critical care, who ran a trauma unit.  My brother is a pretty successful lawyer.  Whenever I visit them, inevitably at least one night ends with the three of us around a table, and the two of them going at it about who is to blame for the malpractice system.

My father, of course, blames the lawyers; my brother blames the doctors.  I sit quietly, sip my drink, and try not to get noticed.

But questions like these are answerable.  And I am tired of the arguments.  So I decided to do some work in the area.  We’ve published a paper in Pediatrics trying to give more details on suits in pediatrics, and I have a grant to look at some of the more ignored specialties with respect to malpractice.

In general, I think there’s plenty of blame to go around when it comes to malpractice.  Yes, many claims are filed which have no merit.  But many more are never brought to trial that have a lot of merit.  But somehow, no one wants to take responsibility.

I bring this up, because a journalist with whom I correspond tweeted an article recently.  Briefly:

In 2001, University of Michigan Health System launched a program encouraging health workers to report medical mistakes. The program included a procedure for telling patients and their families about errors; explaining who made the error, how it occurred and what steps were taken to prevent a similar mistake in the future; making a sincere apology to the patient or their family; and offering fair compensation for harm when at fault.

The result was a reduction in the number of lawsuits and other compensation claims, a faster resolution of disputes and lowered legal costs overall.

My only amazement at this is that this is news.  I mean, duh.

We have known for so long that there is likely no greater predictor of a lawsuit than the relationship between the doctor and his patient.  Granted, we are never going to have a randomized, controlled trial on this issue to prove causation (can you imagine randomizing docs to be nasty?), but there is a ton of evidence that that this is true.  Here’s a sample:

A JAMA study in 2004, entitled, “Obstetricians’ prior malpractice experience and patients’ satisfaction with care“, reported on interviews with almost 1000 women who had varying experiences in childbirth:

RESULTS: Even though none of the women actually filed a claim, a consistent pattern of differences emerged when comparing women’s perceptions of care received. Patients seeing physicians with the most frequent numbers of claims but without high payments were significantly more likely to complain that they felt rushed, never received explanations for tests, and were ignored. In response to the open-ended question, “What part of your care were you least satisfied with?” women seeing physicians in the High Frequency malpractice risk group offered twice as many complaints as those seeing physicians who had never been sued. Problems with physician-patient communication were the most commonly offered complaints.

CONCLUSION: Physicians who have been sued frequently are more often the objects of complaints about the interpersonal care they provide even by their patients who do not sue.

Another JAMA paper from 2002, entitled, “Patient complaints and malpractice risk“, examined the association between physicians’ patient complaint records and their risk management experiences through a retrospective longitudinal cohort study of 645 general and specialist physicians in a large US medical group:

RESULTS: Both patient complaints and risk management events were higher for surgeons than nonsurgeons. Specifically, 137 (32%) of the 426 nonsurgeons had at least 1 risk management file compared with nearly two thirds (137 [63%] of 219) of all surgeons (chi2(1)= 54.7, P<.001). Both complaint and risk management data were positively correlated with physicians’ volume of clinical activity. Logistic regression revealed that risk management file openings, file openings with expenditures, and lawsuits were significantly related to total numbers of patient complaints, even when data were adjusted for clinical activity. Predictive concordance of specialty group, complaint count, clinical activity, and sex for risk management file openings was 84%; file openings with expenditures, 83%; lawsuits, 81%; and multiple lawsuits, 87%.

CONCLUSIONS: Unsolicited patient complaints captured and recorded by a medical group are positively associated with physicians’ risk management experiences.

Here’s a paper from the American Journal of Medicine in 2005, entitled, “The relation of patient satisfaction with complaints against physicians and malpractice lawsuits“, which looked at 353 physicians, divided them into 3 groups according to satisfaction on a commercial survey instrument administered to recently discharged patients, and then analyzed their complaints and risk management episodes after adjusting for the physician’s specialty and panel characteristics of the physician’s patients:

RESULTS: Decreases in physicians’ patient satisfaction survey scores from the highest to the lowest tertile were associated with increased rates of unsolicited complaints from patients (200 vs 243 vs 492 complaints per 100,000 patient discharges; P <0.0001) and risk management episodes (29 vs 43 vs 56 risk management episodes per 100,000 patient discharges; P = 0.007). Compared with physicians with the top satisfaction survey ratings, physicians in the middle tertile had malpractice lawsuit rates that were 26% higher (rate ratio [RR] = 1.26; 95% confidence interval [CI]: 0.72 to 2.18; P = 0.41), and physicians in the bottom tertile had malpractice lawsuit rates that were 110% higher (RR = 2.10; 95% CI: 1.13 to 3.90; P = 0.019).

CONCLUSION: Patient satisfaction survey ratings of inpatient physicians’ performance are associated with complaints from patients and with risk management episodes. Commonly distributed patient satisfaction surveys may be useful quality improvement tools, but identifying physicians at high risk of complaints from patients and of malpractice lawsuits remains challenging.

Finally, here’s a systematic review that was published in Psychiatric Services in 2002, entitled, “Research on the influence that communication in psychiatric encounters has on treatment“.  The authors examined nearly all published studies from 1950 to 2001 that examined the communication skills of psychiatrists and other physicians and their impact on outcomes (emphasis mine):

RESULTS AND CONCLUSIONS: Twenty-five articles in medicine and 34 articles in psychiatry were selected. Medical communication researchers have observed associations between physicians’ communicative skills and patients’ satisfaction, patients’ adherence to treatment recommendations, treatment outputs, and patients’ willingness to file malpractice claims. The research has also shown that primary care physicians can be more responsive to patients’ concerns without lengthening visits. In psychiatry, the literature can be organized into four discrete categories of research: negotiated treatment and the customer approach, therapeutic alliance, Gottschalk-Gleser content analysis of patients’ speech, and content analysis of psychiatric interviews.

I could go on, but I imagine you get the point.

When I responded to my journalist friend that I wished this was news, she replied, “So why don’t they do it?”  Except it was Twitter, so it read “So Y don’t they do it?”

My answer was that I have built a career on docs not doing what they should.  That’s flippant, but it really is hard – very hard, in fact – to change what doctors do.  There are guidelines and papers and continuing medical education and still it’s glacial work.

But you would hope that this message – that being better people, even more than being better doctors, would reduce malpractice suits – would be an easy one to implement.

Aaron E. Carroll is an associate professor of Pediatrics at Indiana University School of Medicine who blogs at The Incidental Economist.

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  • http://www.rlsolutions.com Colin Hung

    Great post on a very interesting topic. It’s does seem like a “no brainer” that doctors who treat patients as they themselves would like to be treated (read: as an actual person) are less likely to be involved in a malpractice suit. There is definitely a growing mountain of evidence to support this approach.

    Dr. Hickson at Vanderbilt’s Center for Patient & Professional Advocacy (http://bit.ly/fNFJst) has done a lot of pioneering work in this area. He able to analyze patient feedback data to identify doctors who are more likely to have malpractice suits down the road…and then put an intervention program in place to help reduce that risk. I’ve watched Dr. Hickson and Dr. Pichert of the CPPA do an intervention (simulated) and it is amazing how they are able to break through the communication barriers to get to the heart of the problem.

  • rezmed09

    No matter how well you treat a patient medically or personally, the family can and often do attempt to litigate for a bad outcome. The advertisements and financial incentives in some communities make it very easy for families to sue regardless of how much “dad loved you” as a doc.

    No question, there are differences in litigation rates and complaints depending on how nice and personable you are and how well you explain things to patients and family. But that is sometimes a poor substitute for competence.

  • http://davidbeharmdejd.blogspot.com David Behar, MD,EJD

    What the doctor is trying to say is the evidence points to personal animus as motivating most malpractice claims. Such a motive is an improper motive and represent lawyer malpractice if it is the real reason for the lawsuit, and the alleged deviation from standards of care and its alleged harm is just a legal pretext. The filing of such a retaliatory claim is an improper use of a civil procedure and itself a tort. The subject of anger should be deeply explored in any patient and family deposition. Then the doctor should file a countersuit against the lawyer, the plaintiff and any family member who encouraged the claim. An attempt should be made to get an injunction from a higher court against any judge allowing such venomous claims to proceed beyond first pleading to dismiss.

    The overwhelming majority, perhaps up to 80%, of medmal claims are weak claims. They fail at every stage of litigation. The innocent doctor should not settle, and should consider countersuing the lawyer predator. To deter.

    Because there is a first duty to survive and to stay open, the cover up is the most common response to medical error. All investigational material will be subject to discovery and may ruin the health entity. One may conclude that these weak, hate filled, retaliatory lawsuits result in the shut down of investigations into systemic improvements that would eliminate medical errors.

    Every preventable medical error may therefore be caused by the medical malpractice lawyer, with no exceptions.

    • pj

      “Every preventable medical error may therefore be caused by the medical malpractice lawyer, with no exceptions.”

      ????

      If you’re not sure, as shown by the word “may,” than there can be exceptions, right?”

  • paul

    i believe in the title of your post you meant to say “reduce malpractice lawsuits” rather than “reduce malpractice.”

    it’s an important distinction.

  • http://www.BocaConciergeDoc.com Steven Reznick MD

    Treating patients the way you would want to be treated yourself is always the goal. You still get sued in the right environment. I had a 56 year old individual retired to Florida after winning a failure to diagnose medical malpractice suit in Maryland for millions of dollars. He was obese with hypertension and hyperlipidemia , glucose intolerance and a tobacco use history who had a major heart attack. He moved to Florida part time with his 8.2 million dollar med mal award against his Maryland cardiologist. While in Florida six years later he sued five additional physicians for failure to diagnose hepatotoxicity to his ace inhibitor ramipril which remarkably he was not even prescribed or taking at the time he became ill. An ER record, an ER physician history and physical and similar exams by an internist, gastroenterologist and interventional radiologist all confirm that he was not taking ramipril when he became ill.At the time he became ill there were no reported cases of ramipril causing toxicity to the liver and today there are at most a half dozen. In the state of Florida , if a patient makes a claim and the defendants refute it , the case must go to a jury . The individual received a liver transplant within four months of diagnosis and lived another seven years. The frivilous case was settled out of court for less than a $10,000 settlement after the plaintiffs attorney had rung up almost $100,000 in legal expenses for each of the uninsured medical practitioners. Expert opinions supporting the care of the named physicians from the heads of the liver division at Johns Hopkins and Cleveland Clinic could not make this case end without extreme aggravation and cost to the physicians involved. The care was excellent, the referral and hand off to a tertiary center of excellence within days of his illness were excellent as was the followup. Some patients make a living suing doctors. In states where the trial bar has a decided advantage like Florida this persists.

  • ninguem

    But “justice” was done.

  • alex

    Well that’s certainly interesting. You’ve made a reasonable case that “evidence shows that malpractice lawsuits in the US are largely driven by the patient not liking the doctor”.

    One response to that (that I would expect to be more given by someone on the JD side of things) is apparently “ergo sued doctors are at fault for not having their patients like them more”. Oookay.

    Perhaps a slightly more sensible response might be “the rest of the world views this as a problem and therefore have revised their legal systems to focus on separating actual malpractice from hurt feelings”.