Patient-physician relationships in medical malpractice

I recently read a post from Jan Gurley, MD on here on KevinMD.com.

Her opinion is that medical malpractice lawsuits are a “crap-shoot”; she notes that “malpractice lawsuits fail when it comes to medical errors-in both directions.  People who’ve suffered from errors both don’t sue, and lose suits, in the same percentages that people who sued have no suffered from errors.”

Assuming that information is correct for purposes of this post, I ask that all readers consider shifting (or expanding) the conversation from this traditional one: 90% of cases that go to trial end in defense verdicts and 67% of cases were dropped, dismissed, or withdrawn (according to one survey).  I propose shifting the conversation upstream from this analysis to look at existing patient-physician relationships in which patient and physician are on the same side in a trusting, respectful relationship.

Then, something goes wrong, an error perhaps, perhaps not.  Some concern about a procedure/process arises, the patient’s health further deteriorates, or the patient dies.   The physician acts quickly, meeting with the patient or family, explains the situation, informs the patient what occurred, accepts responsibility and apologizes, if appropriate, listens to the patient’s questions and experience of the healthcare system, and uses that information expeditiously to improve patient safety.   If the physician does not believe there was error, s/he explains that what occurred is a common side effect, was predictable and explained to the patient in the informed patient choice process, or was not an error for other reasons.

If this conversation takes place, along with an offer of compensation, if appropriate, there is, very likely, no need for litigation, an adversarial process that pits physician against patient and forever transforms (and likely ends) a trusting, caring relationship.   Trained attorneys can play a supportive role, counseling and advising the parties through this nonadversarial process.

The various studies/surveys that address who gets sued, what specialties they belong to, the end results of litigation, and/or whether cases are “frivolous,” never seem to address these upstream issues.  When this continuing conversation between patient and physician occurs after there may have been medical error, it is not about blame, punishment, or punitive damages (almost unheard of in a med mal case, since intent must be proved and a less than miniscule number of physicians intend to harm their patients).  Instead, it is about open communication, whether error was involved or not, and commitment to the patient-physician relationship.   Before we get to statistics about cases dropped, can we ask: Was there a respectful process in place, such that patient-physician trust can be maintained and the patients understand what happened in order to make continuing healthcare decisions for themselves?

I don’t believe that anyone, whether patient, physician, or attorney, gets up in the morning and thinks: “I’m going to make some money today at someone else’s expense”. Rather, I imagine we all wake up, thinking: “I’m going to be responsible for my actions today and treat everyone I meet with dignity and respect.”

Kathleen Clark is an attorney who can be reached at Servant Lawyership.

 

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  • http://www.taskforce.org/our-work/projects/justins-hope Dale Ann Micalizzi

    Kathy,

    “I propose shifting the conversation upstream from this analysis to look at existing patient-physician relationships in which patient and physician are on the same side in a trusting, respectful relationship.”

    Very well stated and your words echo most patients and families who have traveled this road, and I assume most physicians and attorneys, as well. Just like no one wants to harm a patient, no one should want to harm a family or physician further who has already suffered from the result of an error. Rapid, compassionate response to these situations based on communication and honesty is a must. Let’s move forward together…

    ~Dale

  • Michelle

    There is a doctor who I have never sued for his error because he called me, told me he was wrong, and apologized for his mistake. He sounded honestly regretful. There is a difference between an honest mistake and carelessness or indifference. I did, all the same, immediately change doctors.

  • http://www.epmonthly.com/whitecoat WhiteCoat

    Essentially you’re advocating mediation with an attorney as a mediator.
    Most times that a bad medical outcome occurs, the relationship will automatically be adversarial. Look at malpractice law firm advertisements that “inform” the public that if your doctor prescribed this drug or if your baby was born with that problem, *you* may be the victim of medical malpractice. Are those statements conducive to a collaborative relationship?
    It would be great if physicians and patients could engage in collaborative relationships, but that is unlikely to happen in our lifetimes.
    Your post assumes that all patients and families are reasonable. They aren’t. It’s obvious that you have never been in a position where you have had to interact with a patient’s family after “something has gone wrong” or even when something is perceived to have gone wrong. Many times the patients and families are reasonable and understanding. In a significant minority of cases, there is an underlying motivation to “make some money.”
    Then the potential financial risk and the adverse professional repercussions of a malpractice suit land squarely on the shoulders of the medical providers.

    Maybe this system might prevent some malpractice suits from being filed. On the other hand, it may also result in inappropriate admissions that cause other suits to be filed. And any payout on behalf of a physician causes a report to the National Practitioner Databank which then affects licensure decisions, hospital privileges, and availability of malpractice insurance for the remainder of the physician’s career. I’m sure that some providers would be willing to give this system an opportunity if the lawyers that mediate the collaboration would accept liability in the event that a malpractice suit was filed after the collaborative meeting. Of course, that won’t happen.

    What we’re left with is a semi-informed but well-intentioned post taking a retrospective view at a problem with no suggestions on how to realistically apply the suggested solutions. Kind of like a doctor creating a post on what steps attorneys should take to win more medical malpractice cases.

    We can have all the conversations we want about the issue, but there is no real way to implement your suggestions. There are too many bureaucratic traps and medical providers will do whatever they perceive is necessary to avoid liability. Your profession has ingrained that into us and it won’t be easy to change that mindset.

    • http://www.ServantLawyership.com Kathleen Clark

      Thank you so much for your comments, White Coat. I am NOT advocating attorneys as mediators. I am on the run but will respond to the points you make in your thoughtful post later today. This is exactly the type of conversation I hope to have with you and other contributors. You are right; I am not a physician, so I’ve never had these painful conversations with a patient. It must be very, very difficult. Again, more later and thanks so much.

      Kathy

    • Reasonable Patient

      Re: an “automatically” adversarial relationship, my “bad medical outcome” occurred, I suspect, because my doctor assumed I was becoming a liability risk due to the complexity of my medical situation. I believe that wrong conclusion led my doctor to make multiple self-protective decisions that resulted in worse health for me. I can’t be sure that was the motivation, because no one will talk to me.

      I searched the internet for information on how to begin a conversation with my doctor about this. I forged ahead past all those malpractice attorney advertisements – you’re right – they’re everywhere, but no amount of money would make me feel better. Also, unlike the doctor in this situation, I’m considering the effect that my actions would have on others.

      I’m still trying to contact the doctor after several times, still without an attorney, but no one will talk with me. Doctors need to be responsible adults here. Some of what they call “automatic” is actually their decision. Yes, it may be based on previous bad experiences, but patients who’ve had bad experiences with doctors, still have to try to trust doctors again, or else they go without needed medical care.

      “I’m sure that some providers would be willing to give this system an opportunity if the lawyers that mediate the collaboration would accept liability in the event that a malpractice suit was filed after the collaborative meeting.”

      I trusted this doctor with my life and welfare, which wasn’t easy. Patients don’t have any assurance that someone else will clean up the mess when things go wrong. Why should you?

    • Matt

      “What we’re left with is a semi-informed but well-intentioned post taking a retrospective view at a problem with no suggestions on how to realistically apply the suggested solutions. ”

      Of course it’s “retrospective”. Why wouldn’t it be?

      And other than damage caps, I’ve yet to hear your “realistic application” of proposed solutions.

      It’s also interesting to see WhiteCoat blame everyone but his profession and their insurers for the way things are. Reading him, you’d think doctors and their insurers were just itching to confess when they cause damage and volunteer to pay it if only those damn lawyers wouldn’t get in their way. His posts assume all physicians and insurers are reasonable. They’re not.

      The reality is much, much different.

  • http://www.ServantLawyership.com Kathleen Clark

    Hi White Coat and Others: I appreciate your input. Thank you so much.
    Really, what I was addressing are the studies/surveys/books/articles that discuss lawsuits against physicians, how many are dismissed, how effective (or not) they are, etc., and draw conclusions that leave physicians’ responsibilities out of the analysis. Shouldn’t the physicians’ responsibilities also be addressed? What is the relationship between disclosure and litigation; what is the relationship between inadequate disclosure or nondisclosure and litigation? What percentage of litigation cases is filed by patients/families as a result of inadequate disclosure or nondisclosure?
    It seems to be commonly accepted in the literature that patients surveyed state that they file medical malpractice cases due primarily to no communication or poor communication with their physicians after patients believe there has been an error or even when they are unsure as to what happened. If that is accurate, why isn’t that addressed in the continuing conversation about medical malpractice? Why not look at the roles of ALL participants?
    Separate and apart from the question of surveys/reports, there is an effective process that can come into play very quickly after questions arise as to the possibility of medical error. The goals of that process are patient safety, trusting, continuing physician-patient relationships, healing, fair compensation, and support and compassion for patient and physician. The collaborative process does not use a mediator; instead, it involves two or more parties, each represented by counsel, discussing in open exchange events of concern, working through solutions together and learning from patients’ experiences to help future patients. I’d be glad to provide further details for those interested.
    Also, you mentioned that a payout on behalf of a physician causes a report to the NPDB: that is true ONLY if money is paid as a result of a WRITTEN claim. NPDB Guidebook, able E-1: Reporting Requirements. This is another reason to talk quickly and openly to the patient/family if there is concern that there may have been an error, since it is unlikely a written claim will be filed if the physician and patient are in discussion.
    Finally, The physician-patient relationship doesn’t have to become “automatically adversarial”. The sooner disclosure/conversation begins, the less likely the process has to turn adversarial.

  • http://www.littlepatientbigdoctor.com Haleh Rabizadeh Resnick

    Dear Kathy,

    I understand what you are saying. I am an attorney and author of Little Patient Big Doctor, in which I advocate the importance of a partnership between doctors and patients.

    When a doctor has a partnership with a patient, as opposed to a relationship in which the doctor is a superior, the entire tenor of the relationship changes in a positive direction. This improved relationship could decrease suits against doctors and improve communication- a necessary ingredient in accurate diagnosis and treatment.

    With that said, doctors need to show compassion while being careful not to unintentionally open themselves to litigation by inaccurate admissions that could be used against them.

    Haleh

  • http://www.ServantLawyership.com Kathleen Clark

    Thanks so much, Haleh. I so agree with you about a partnership. I was just talking about the use of language yesterday in both in law and medicine. We were particularly talking about the terms used often in medicine, “provider” and “customer”, turning health into a commodity, a business, around which the powerful one gives and the helpless one receives.
    Think of the divisive language we often use as lawyers, so much about blame and fault. We have the option to, whenever possible, set aside blame in favor of interdependent relationships. Instead of the language of battle after adverse medical events: discovery battle, complaint, sanction, pre-litigation, binding, mandatory, intentional, breach, offender and order, among others, we can use the language of collaboration, compassion, participation, continuing communication, and healing.
    Thanks so much for your thoughts.

    Kathy

  • http://www.littlepatientbigdoctor.com Haleh Rabizadeh Resnick

    Dear Kathy,

    I agree with you about the power of words and how the words we use ultimately shape not only our attitude but our actions and the actions of those around us.

    One challenge I think most doctors face is that they spend years studying the science of the human body when it turns out that their effectiveness as doctors lies in large part on the relationship they forge with their patients in those few minutes of conversation. How many of us can say we are experts in relationships and communication and always use just the right words?

    If a doctor can master these, chances are they won’t have to spend all their energy worrying about medical malpractice.

    Haleh

    • Matt

      We also have to remember that physicians are enmeshed in a compensation scheme that doesn’t reward them for spending the time necessary to forge a relationship with their patients. That’s partly their fault, since they have been signing on to the third party payment system for decades and continue to do so, but who can blame them given how much it has increased their income since it was implemented?

      But they’ve traded income for relationships, and that has a cost as well. I guess they have to weigh whether the guaranteed high salary of the third party payment model, even though it may increase their risk of a claim being made against their insurer, is worth it as compared to a better relationship with their patients, but possibly lower overall compensation.

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