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In this episode, we sit down with attorney and author Michael J. Grace to discuss his book, The Mumbo Jumbo Fix: A Survival Guide for Effective Doctor-Patient-Nurse Communication. As a defense lawyer representing health care providers, Michael discovered that many of his clients didn’t fully understand their legal obligations when it came to communicating with patients. This led him to start educating physicians and front office staff about effective communication and how it can prevent costly lawsuits. Michael’s book addresses the issue of “siloed” communication education in health care, and provides an evidence-based guide for all three essential participants in the health care process: doctors, nurses, and patients. Tune in to hear more about Michael’s journey and the insights he’s gained as a trial lawyer and hospital administrator.
Michael J. Grace is an attorney.
He shares his story and discusses his book, The Mumbo Jumbo Fix: A Survival Guide for Effective Doctor-Patient-Nurse Communication.
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Transcript
Kevin Pho: Hi, and welcome to the show. Rate and review at KevinMD.com/rate. Subscribe at KevinMD.com/podcast. Today on the show we have Michael Grace. He’s an attorney, and he’s the author of the book The Mumbo Jumbo Fix: A Survival Guide for Effective Doctor-Patient-Nurse Communication. Michael, welcome to the show.
Michael J. Grace: Thanks, Kevin. Good morning.
Kevin Pho: So we’ll get into your book in a little bit, but first off, briefly share your story and journey to where you are today.
Michael J. Grace: Oh, my journey’s been a long one and a diverse one. I’m the kid whose parents told him from an early age, “You should be a lawyer, because you’re always arguing and talking so much.” And in fact, I became a communication major in undergraduate and graduate school, and went through the whole forensics program in high school and in college. I became a trial lawyer. I went to law school, and my whole focus was on litigation: communicating, informing, and persuading a jury. My specialty within that was health care, so I specialized in defending health care providers, doctors like yourself, hospitals, nurses, and other allied health care professionals.
From there, I was the lead trial attorney and one of the founders of my law firm, Grace Hollis, based in San Diego. After more than 20 years doing that, I decided to start a new career. I moved to Palm Springs and became the risk manager and patient safety officer at our large hospital here in Palm Springs. In that capacity, I thrived, because I was no longer litigating alleged fault but trying to prevent the harm from occurring in the first place, and I found that immensely satisfying.
Currently, I teach law and communication to nurses at the University of California, Riverside. They are getting certifications as forensic nurses or nurse legal consultants within the state of California, and I designed a course specifically to teach them how to be effective expert witnesses or fact witnesses in depositions, in court testimony, and any of that kind of legal procedure.
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Kevin Pho: Now, it goes without saying that communication issues are often the basis of liability lawsuits and of patient safety concerns. From your role as a patient safety officer and from your decades of experience, what would you say are some of the biggest mistakes that physicians make when it comes to communication?
Michael J. Grace: Well, there are a couple that immediately come to mind. The first is a failure to put themselves in the shoes of their patient. As George Bernard Shaw, the famous playwright and author, said, the greatest obstacle to effective communication is the illusion that it has taken place. So doctors communicate once to a very sick patient and think the message has been received as they intended it. But of course, if you’re mentioning the cancer word to a patient, probably all of their listening skills have collapsed at that point, and they’re not going to effectively follow what you’re saying. So telling them only once is not going to be sufficient. Telling them only verbally, without reinforcing the message in other ways, is not going to be efficient.
If you think you can avoid the patient’s family under any circumstance because they’re not the patient, that’s a huge mistake, because so much litigation is driven by families, especially if they end up caring for a seriously injured patient or they’re financially responsible for that person. So they’re looking for a deep pocket to cut their losses.
And often fear, you know, they say that’s our prime human emotion, for all of us, not just health care providers, certainly. But so often, both as an attorney representing doctors and also in the hospital where I was interacting with them, there’s a fear of talking to a patient about an unexpected outcome, out of concern that it’s going to lead to a lawsuit. But the irony is that dodging the patient or the patient’s family only increases their motivation to get answers, if necessary, through the legal system. So there’s a way to talk to a family about an unfortunate outcome. Usually there is a perfectly reasonable medical explanation. But too often I’ve had doctors tell me directly, “I’m not talking to them. I’m going to talk to my lawyer.” And that’s only fueling the increased chances of a lawsuit.
Kevin Pho: All right, let’s talk about your book, The Mumbo Jumbo Fix: A Survival Guide for Effective Doctor-Patient-Nurse Communication. Now, what led you to write this book?
Michael J. Grace: Well, I wrote this because I had this idea floating around in my mind for over 20 years. It really started in my role as a defense lawyer representing health care providers. I found that they really didn’t know what their legal obligations were, and the first time that they were being educated was on the receiving end of a lawsuit. And so part of my job as an attorney, a counselor at law, was to let them know, “You’ve been sued, for example, for lack of informed consent. Here is what the law required you to do: Talk about the procedure, the alternatives, and the risks in language that the patient can understand, entertain and answer all of their questions, and document that discussion.” That’s just one example of many.
So I quickly realized that there’s a need at that point to be educating physicians about communication. And insurance companies often paid me, as insurance defense counsel, to do formal seminars for the benefit of their physicians, and often front office staff as well, and they got a 5 percent discount on their premiums for spending Saturday mornings with Mike. I loved that process, because I felt I was being proactive and helping them avoid litigation. Because even if you win, and most doctors do win their lawsuits, it’s a horrible experience for them, as well as for patients, even if they’ve been seriously and legitimately injured. It’s emotional, it’s time-consuming, and it’s expensive.
And then when I got my certification from the American Hospital Association as a risk manager, I quickly learned that everything that I believed to be true as a defense lawyer was being reinforced every day in the hospital, interacting with physicians, nurses, patients, and their families. So I thought there’s a real need to address this issue, and I thought I had something unique to say that had not been said before. There’s lots written about communication in health care, but usually doctors write for doctors, and nurses write for nurses. Almost nobody writes for patients.
And I think one of the fundamental problems that is not being addressed is what I call the siloed approach to communication education in health care. I would analogize it to a family therapist who talks to some family members, ignores other family members, and never brings everybody together into the same room. So even though communication is a required core competency in the training of all physicians and of all nurses, we aren’t significantly moving the needle in terms of harm or near misses to patients. The root cause of most of those events is lack of communication. Why? I think it’s the siloed approach.
So I wanted to write a book that demystified the process, whose audience was all three essential participants, doctors, nurses, and patients, and to present the information in an evidence-based way, with true anecdotes based upon my experience as a trial lawyer and as a hospital administrator, but also with some humor. That’s why the book contains over 40 of my original cartoons, because I think if you can painlessly reinforce the more serious messages by bringing a smile to somebody’s face, they’re more apt to remember those messages about best communication practices.
Kevin Pho: Now, you mentioned that a lot of physicians do not receive formal education when it comes to communication, and the first time that they’re alerted to some communication issues is through a lawsuit. So take us through one of those Saturday mornings with Mike. For instance, in one of your seminars, what are some of the main lessons that you want physicians to come away with, either from going through one of your seminars or from reading the book?
Michael J. Grace: One that is a constant theme through my entire career is this whole issue of lack of informed consent that I alluded to earlier. I describe it as the low-hanging fruit in the orchard of the plaintiff’s malpractice attorney. What I mean by that is that it is the easiest claim for the plaintiff to prove, and physicians and other providers don’t take it seriously enough.
Why is it easier? For two reasons. First, the plaintiff doesn’t have to hire an expert, so it’s cheaper for them to present the claim, because the legal standard is: What would a reasonable person want to know? We don’t need a trained physician as an expert to educate the jury about that, because the jurors are lay people, and they know what they and reasonable people would want to know about a procedure before agreeing. And the second thing is that the plaintiff doesn’t have to prove harm. All they have to do is prove that an undisclosed event happened, and that had they known of that complication, they and a reasonable person wouldn’t have agreed. So an unfortunate event in the hands of the most capable physician can still lead to a successful lawsuit by a plaintiff.
And even when the physician does all the things that the law requires, explaining the procedure, the alternatives, and the risks, too often they fail to effectively document that discussion. In the law we have the saying, you know, “Not documented, not done.” And I know that’s also a mantra within health care, so people know it, but in the rush of business, and that’s been something that I observed firsthand working in the hospital, it’s a busy place, and everyone feels those time pressures. One of the ways that they’re cutting time is in taking the required time to do the informed consent and in documenting that discussion to protect themselves.
Kevin Pho: So take us through an example or a case study of such an informed consent scenario. What’s a typical lawsuit that may arise from an inappropriate informed consent discussion, versus something that’s done right? Take us through something that you would typically see.
Michael J. Grace: Lack of informed consent usually centers around surgical procedures, and the practitioner can be a general surgeon, an orthopedic surgeon, a neurosurgeon, or a cardiac surgeon. That group of surgical specialties, if you will, has the highest claims rate. And I think that exists because when you’re performing surgery, so many things can occur innocently, for example, nicking an adjacent organ or vessel. You don’t intend to do it, but in the most capable hands, it can occur. The problem is if you don’t let the patient know ahead of time that this is a possibility, albeit remote, that it can still happen, and ask, “Are you still willing to go through with this procedure knowing that can happen?” and document that discussion. And of course, the more serious the potential adverse outcomes are, the more important it is to disclose what those really serious complications can be.
I remind health care providers to think of the patient as your mom or dad, assuming you have a good relationship with them. What would you want the surgeon to tell your mom or dad before getting their consent to proceed? And keep in mind that patients have the right to withdraw that consent. So often I saw physicians angry with their patients because, the day after they had spent time to go through the drill, the patient had more questions, and the doctor didn’t want to go in and answer them and tried to fob that responsibility off on a nurse. Well, it’s a nondelegable duty in the law in all 50 states in this country, and like it or not, you have to take the time to again answer the new questions to the patient’s satisfaction. And of course, the patient always has the right to agree to do nothing. It may not be objectively in their best health interest, but it is still their individual right. So that comes up over and over again, especially with that class of practitioners who are engaged in surgical practice.
Kevin Pho: And is it simply because an appropriate informed consent takes so much time? Is it simply a time issue?
Michael J. Grace: In a lot of cases, it does take time, but that’s time well spent. And that’s the most common protest or objection I’ve received over my many years from physicians: “I don’t have the time.” And I in turn respond, “How long did it take you to get that license, that meal ticket? Do you really not have time to protect the meal ticket that you probably went into considerable debt to obtain?” And certainly a lot of years of study. Again, this is the easiest claim to prove against you, so spend your time now, because I can assure you every lawsuit, no matter how meritless, is going to take so much of your time: answering interrogatories, written questions, preparing for and taking a deposition, reviewing required records, and meeting with your attorneys. That’s all uncompensated time out of your practice. So be proactive, do it right up front, and you will really be saving yourself a lot of time, heartache, and expense down the road.
Kevin Pho: What’s another communication pearl that you could share, perhaps this time applied to a primary care setting?
Michael J. Grace: Communication pearl. You know, I’m big on documentation, and sole practitioners often forget that they are writing for a wider audience beyond themselves. They’re the only person in the office, and they’re going to be the provider who sees the patient on the next occasion and the occasion after that. But if you have a GP who is seeing a woman, as an example, following a mass in her breast, and doesn’t carefully document it, thinking he’s going to, or she’s going to, remember the location and the size and the patient’s subjective complaints, they’re fooling themselves. Doctors practicing in a larger group or in a hospital setting realize a lot of people are going to be looking at their records.
So I think it’s unfortunate for sole practitioners, and they are becoming rarer these days as we’re seeing mergers and consolidations of practices. They should keep in mind that they really do have a heavy burden of documentation, even when they’re the only one who’s probably going to be reading the record, other than, of course, insurance companies and those who subpoena the records, like a plaintiff’s lawyer is going to do. That’s the first step. So again, that’s time well spent, to keep the broader picture in mind.
Kevin Pho: We’re talking to Michael Grace. He’s an attorney, and he’s the author of the book The Mumbo Jumbo Fix: A Survival Guide for Effective Doctor-Patient-Nurse Communication. Now, you also mentioned nurses as part of that communication triad. Any specific tips that can help nurses?
Michael J. Grace: I think nurses should remember with some degree of pride that they are the most well-respected professionals in America today. The latest Gallup surveys from the past couple of years show that they score about 20 points ahead of physicians, and I’m not picking on physicians, because we lawyers are right above used car salesmen at the bottom of the list. When they realize the important role they play, they’re the eyes and ears of the doctor at the bedside. They’re the ones who have established the greater relationship, because they spend more time with their patients. So I encourage all nurses to cherish that special role that they have and to take the time to listen to the patient. Most people think communication is all about talking, when in fact most of it is about listening, and developing good listening skills without interrupting becomes so very important.
Most hospitals encourage, if they don’t have a policy of, handoff communication from the off-going nurse to the oncoming nurse to be done at the bedside. And the reality of things is that it’s often done in the hall, and it’s often done too briefly. I encourage all nurses, again, take the time to do that at the bedside. Let the patient know ahead of time why you’re doing that, and tell them, “This is a handoff communication. I’m going to let your oncoming nurse know what’s happened during my shift, and if I say anything incorrect, don’t hesitate to jump in, in case I’ve misunderstood the situation. And when we’re finished, if you have any questions, feel free to ask them.” Again, bringing the patient into the process and letting them know what to expect, I think, is going to decrease errors in communication.
And for the same reasons, I hope that doctors keep in mind that nurses are really in this special role with patients, and too often we’re seeing bad relations between nurses and doctors. Ironically, most doctors think they get along better with the nurses than the same nurses report. Nurses feel the lack of respect too often shown, especially, unfortunately, by some older practitioners. The doctors don’t intend to come across that way, but if they’re sensitive to the nurses’ perspectives and feelings and engage them as real partners in the care of the patient, it can benefit the doctor and the patient as well as the nurse.
Kevin Pho: And my final question: Any take-home messages that you want to leave with the KevinMD audience?
Michael J. Grace: Yes. I would say, don’t be afraid of change. It’s the driving human emotion, I understand, and we as humans are too often afraid of the unknown. We’re afraid of change in and of itself, and we are often afraid of losing control. And one thing that I hope my book does is refocus attention on bringing the patient into the process, in terms of educating them about the importance of communication, so they hold the providers responsible.
For example, take the wristband that everyone gets when they’re admitted into a hospital. If anyone, even in the front office, explained to the patient what this thing is and why it’s important: It’s got three pieces of information on it, your full name, your date of birth, and your medical record number. Don’t let anybody do anything to you in the hospital without asking you, in an open-question format, for that information. Because as a hospital risk manager, unfortunately, many times I had to investigate cases where the wrong patient was taken to the wrong location for the wrong procedure. Most of the time, fortunately, the error was caught before the actual procedure was conducted. But with the patient brought in as a team member, when they know why it’s important, in the rush of things, if the transporter forgets to ask, they can say, “Excuse me, do you have some questions for me?” And that would have saved me, as a risk manager, so much investigation time.
I think there are many opportunities like that, with just a quick explanation of why we do things the way that we do to keep patients safe. If the patients were aware of the whys, they would hold us all accountable, and it would result in far fewer injuries to patients. Because again, miscommunication, lack of communication, and bad communication, among providers themselves or from provider to patient, is the leading cause of patient harm.
Kevin Pho: Michael, thank you so much for sharing your time and insight, and thanks again for being on the show.
Michael J. Grace: It’s been my pleasure. Thank you very much.
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