Reducing the emotional impact of medical malpractice

Reducing the emotional impact of medical malpracticeA version of this op-ed was published on January 17, 2012 in USA Today.

Ask doctors about what concerns them the most, and chances are they’ll say, “medical malpractice.”  Indeed, most physicians will be sued sometime during their careers.  A recent New England Journal of Medicine study found that 75% of doctors who practice psychiatry, pediatrics or family medicine will be sued during their career.  Neurosurgeons, orthopedic surgeons, and obstetricians have it worse, as virtually all of them will be embroiled in a lawsuit sometime before they finish practicing medicine.

The medical malpractice debate often pits physicians, who say the threat of malpractice pushes them to order expensive, medically unnecessary tests, against lawyers who believe that lawsuits are needed to hold doctors accountable. What’s lost are the voices of doctors who have actually been sued.

I’ve talked to some of these physicians, and they say being sued is a life-altering experience.  But it’s more than career-threatening damage to their reputation. A November 2011 study from The Journal of the American College of Surgeons found that doctors who had been sued were more prone to burnout, depression and suicide.   According to lead author Charles M. Balch, a professor of surgery at the University of Texas Southwestern Medical Center, the stress of malpractice “is right up there with financial distress, serious work-home conflicts and life-and-death circumstances.” Physicians who are depressed or burnt out make significantly more medical mistakes compared to those who aren’t.  That’s important for patients, since most doctors who endure a lawsuit will continue to practice medicine.

How can physicians avoid the courtroom?

Creating and maintaining open lines of communication with patients is critical to preventing lawsuits in the first place.  Doctors have to better explain, and patients understand, that not all adverse outcomes are due to physician errors.

Although the Institute of Medicine’s 1999 seminal report, “To Err is Human,” concluded that nearly 100,000 patient deaths a year were due to medical errors, 90% of those deaths weren’t due to physician negligence, but to system-wide procedural failures at medical institutions. Consider the seemingly simple task of dispensing a drug at a hospital. It’s actually a complex process that requires five interdependent steps: ordering, transcribing, dispensing, delivering, and administering. A poorly designed system can lead to an error in any of those steps, with a potentially deadly patient outcome as a result.

Bad outcomes can also occur despite appropriate patient care.  A colonoscopy can be performed correctly, for instance, yet complications like a bleed or a tear in the colon can still unexpectedly occur.  Another New England Journal of Medicine study looked at nearly 1,500 malpractice claims and found that 37% of them didn’t involve any medical errors at all.

If an error truly was made, many malpractice insurers advise physicians not to talk to patients.  That’s wrong.  Physicians instead should fully disclose their mistake, apologize, and, when appropriate, compensate injured patients.  Patients would still have the option of filing a formal lawsuit.  For over a decade, the University of Michigan Health System has used such a program, and their incidence of malpractice claims has since dropped.  Some states have enacted laws protecting apologies from being used against doctors in court.  They need to spread nationwide, so that more doctors can speak openly about their errors, and prevent future ones from occurring.

Patients report that poor communication is the most important factor in deciding whether to pursue a lawsuit, or not.  Alan Woodward, chairman of the Massachusetts Medical Society’s committee on professional liability, says that the threat of legal retribution for medical mistakes stifles transparency and “creates a culture of secrecy and fear.”  We need to remove this threat, and approach malpractice reform by promoting better doctor-patient communication, both before and after medical mistakes.  This can can not only prevent the stress of a malpractice trial that every doctor fears, but also help improve patient safety as well.

 is an internal medicine physician and on the Board of Contributors at USA Today.  He is founder and editor of KevinMD.com, also on FacebookTwitterGoogle+, and LinkedIn.

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  • Craig Koniver, MD

    I really enjoyed your comments here. I completely agree that the threat and fear of a lawsuit is scary and that the very best way to help ward off any lawsuit is outstanding communication with each patient. That type of communication becomes difficult with the current healthcare environemnt, but is critical to not only helping patients feel better about their physician, but also helps the physician seem more human in the patient’s eyes and that is always a good thing. Thanks again for a great article.

  • http://www.facebook.com/profile.php?id=1404048836 David Behar

    Doctors should grow up and man up.

    Grow Up. Doctors are among the most privileged and immunized of all defendants. They set their own standards of due care rather than know nothing juries and judges. Then their rate of being sued is miniscule.  If a group is grossing $5 million, it is upset if there 4 law suits. If a welding business or any other grossed $5 million  a year, there would be 400 lawsuits all the time. Walmart has 10,000 lawsuits “Every Day.” The rate of successful verdicts of doctors even in judicial defendant hellholes is way above 50%, like 80%. There are also plaintiff hell holes where doctors win 100% of the time, out of respect, even when they are guilty of negligence.

    Man Up. If innocent, refuse to settle. Lawyers learn from experience and will move on from a hardened target. File licensing complaints after every questionable utterance by the plaintiff lawyer, plaintiff experts, the judge, and report the plaintiff to any appropriate authority, such as child protection services, zoning boards, condo associations. Most of all hire a legal malpractice expert with your own money. The function of that lawyer is to terrorize the traitor the insurance company has provided as a defense lawyer. His pay is so low, he can break even only if he takes you to trial. That vermin will resist all demands for motions to dismiss. He will just laugh at a civilian, but not at another predators who has collected $millions from delinquent lawyers. The insurance company traitor does not want to scare the plaintiff lawyer into ending his frivolous medmal claims. He owes his job to the plaintiff lawyer, not to the defendant. Make boycott black lists, with all product and service providers, without permission of weak organized medicine societies. These are worthless in promoting the legal interests of the clinician. Start a campaign of vilification until the lawyer and plaintiff are driven out of town. Shun the false plaintiff expert. Start to report every tiny infraction. If parked more than 12 inches from the curb, call the police to issue a ticket. The idea these inexperienced academics know more medicine than experienced clinicians is absurd.

    Liability is a substitute for violence, as well. How would docs like to have the family settle their beef with violent self-help. So I believe in the value of tort liability. Doctors who know they did damage by a mistake should offer to settle. Please, be fair to our patients. These tactics are for the innocent defendant. The trauma would be far greater after the dead mother’s brothers settled their beef against the doctor with baseball bats.

    Now, because of the absolute immunity from tort liability of the judge or opposing lawyer, violence against them has full moral, intellectual (the contrapositive of a true assertion is always true in formal logic), and policy justification. A masked direct action group should visit their homes at night. Tie them to a tree, and give them 10 lashes. Post the punishment on YouTube. To deter.

    • Anonymous

      i see the supremacy clause has been released from the psych ward.

  • Anonymous

    To the moderator: If you censor my comments, I will not be able to return. You are not qualified to censor my remarks, unless you have a law degree. You have no idea of the technical meanings and legal implications.

  • http://profile.yahoo.com/7M7TPTWIZVMLOGAE4PKFRQUDYI John

    What would be the right thing to do if a physician was negligent and in fact harmed their patient? I am not fond of lawyers but in some cases they are a necessary evil.  It is my understanding that lawyers are not taking on frivolous lawsuits like they did years ago. They are going to take cases that they  feel they can win otherwise they will soon be out of business.

    If someone is negligent they should take professional responsibility, apologize and offer the
    person harmed a financial settlement to compensate them for their
    injury. This will change the dynamics of the medical legal relationship. Furthermore I believe it is an emotional burden for the health care provider to live a lie and try to pretend nothing happened. The only one who wins trying to defend a guilty person are the lawyers. They have to fight long and hard to prove a guilty person’s innocence (an oxymoron) and that costs a lot of money.

    • Anonymous

      how about a state appointed lawyer to bring suit.  also a state medical board to determine negligence.  limit punitive damages.  if the affordable health care act is enabled, then no one will be wanton of health care.  this obviates need to compensate the plaintiff for continued medical care.  these points answers the question, unfortunately we as a society do not want answers but only our just desserts…….

  • Michal Haran

    A good friend of mine, an excellent and caring physicians, has a daughter who is very ill. There were many medical errors on the verge of neglect done in her management. Despite being a highly appreciated physician he was treated with disrespect by her treating physicians, when trying to discuss those errors and more important prevent further ones. They expected him, as a physician himself,  to understand that such errors are inevitable.  He never thought of suing any of them, or even officially complain. He did nothing about it, other than share his very understandable frustrations with us. 
    At the same time, a patient he took care of and saved his life, is now suing him for a relatively minor error he made. 
    I think there needs to be a way for patients and their families to discuss management errors they feel have been made, receive realistic compensation, that will enable them to recover from injury and resume their life  (if it seen justified) regardless of the fault of the physician. 
    I think it should become more commonplace for physicians to admit their mistakes and sincerely apologize for them, regardless of the degree of harm that was done. 
    Just like a person will receive compensation for an accident even if no one was at fault.   

  • Anonymous

    It seems to me that the first response to the level of litigation would be some soul searching of the profession as to why it has such high error rates.  Almost half of all diagnoses are wrong.  It is huge source of excess costs of care and suffering.  The rate of death due to medical errors is horrible. And a bit of introspection would reveal that hubris is a substantial source of those errors.  The more the medical community protests that being held accountable is unfair, that there is nothing wrong, that it is someone else, the deeper the hubris and the less likely doctors are to learn, be careful and correct mistakes.  Shame, embarrassment, fear and other negative emotions, for someone who has used a position of trust to hurt someone, intentionally or by lack of care, is not inappropriate.

    It’s not about transparency, although transparency is a good thing.  It’s about taking responsibility.  How many physicians who have made a serious error have not contested the lawsuit, have publicly apologized, have sought to obtain education or oversight to prevent what went wrong.  I’ve never heard of it, nor I bet, have any of you.  The core value of being a professional is being responsible. Not blaming others.  

    As long as patients view the medical community as error-prone, arrogant, and unwilling to take responsibility for themselves and their colleagues,  they will second guess, research on the internet, and generally undertake whatever other measures they need to protect themselves. If the overall quality of medical advice is viewed as a crap-shoot, the value of medical services and advice will be devalued — if it takes me five “experts” to get the right diagnosis, but I can figure it out myself on google in ten minutes, well, I am not going to think any of those “experts” to be worth much. 

    I see alot of wonderment about why patients don’t listen.  I hear much griping about why physicians are not valued materially they way they want.  Y’all are smart.  Connect the dots.

  • http://www.bryantsstatisticalconsulting.com Donald Tex Bryant

    It seems that there are more than a few who are angry with physicians for having too much hubris.  I believe that in fact most physicians do a very good job at diagnosing the problems with their patients.  It is a very difficult task and not all patients are helpful in providing accurate information. 

    Besides the threat of lawsuits physicians are also facing an onslaught of changes in pay and care models.  It seems there are plenty of headwinds for physicians and their staff today.

  • Anonymous

    You know what guys and gals….

    We rip our patients off….
    They rip us off….
    Lawyers rip both of us off…

    Where does health come into this…
    Healthcare is disease care here..

    Keep them fat, keep them dumb…keep them coming

    Kaching

  • Anonymous

    Once upon a time physicians were altruistic members of society, who tried to improve their fellow citizens quality of life (save for a little blood letting).  This was generally accepted as a selfless act.  Our selflessness has allowed less desirable entities to control our practice. We are weak and have let our patients down by allowing the lawyers, pharmaceuticals, insurance companies, politicians, and unruly patients dictate our practice.  If malpractice is such a burden (which I believe it to be) then this burden negatively influences our patient’s care.  Simply the patient indirectly suffers.  Why can’t we rise above this burdensome yoke as a unified voice, dispelling the corruption and returning to the altruistic approach of caring for our fellow citizens.  
    P.S. This also applies to the wonderful world of Pres-Ganey and their “statistically significant” patient satisfaction surveys.

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