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Does Poor Communication Lead to Medical Malpractice Claims?
By Floyd Arthur
Despite the hoopla around the recent Stanford University study on the incidence of
malpractice lawsuits, physicians have known for some time that a small percentage of
doctors account for the bulk of medical malpractice claims.
Medical Malpractice Claims
In fact, studies from as far back as the 1980s show that the best predictor of being sued
for malpractice is being sued before. More importantly, this holds true for both paid
claims and unpaid claims.
In other words, even doctors who are cleared of any wrongdoing are more likely to be sued again.
This begs the question: Why? Are these doctors just victims of bad luck? Are they
actually making more mistakes? Or are other factors in play?
According to numerous studies, ineffective communication -- not medical negligence --
may be largely to blame.
Why Patients File Medical Malpractice Claims
A common belief among many physicians is that patients file medical malpractice claims
for financial gain. In one 1989 study, 80 percent of doctors said they thought patients
filed malpractice suits for financial reasons, while only 20 percent of patients said that was the case.
In a 1992 study, the parents of children who suffered birth injuries were asked why they
filed a medical malpractice claim. About one in four said they “needed money.” Most of
the other reasons they gave were related to not getting needed information or a
perceived lack of honesty on the part of the physician being sued. These included:
* Doctor did not listen to them (13 percent)
* Doctor would not talk openly (32 percent)
* Doctor tried to mislead them (48 percent)
* Doctor did not warn them about long term complications (70 percent)
About one in five families sued to seek revenge or protect other patients from harm.
Does Improved Communication Decrease Medical Malpractice Claims?
Since the first medical malpractice lawsuit was filed in 1794, physicians and their
attorneys have used the “deny and defend” strategy to protect against malpractice
claims. Physicians who knew they made a medical error were encouraged to hide it from
the patient, and errors that could not be hidden were rarely discussed. Hospital
“Morbidity and Mortality” conferences were for physicians only and held behind closed doors.
Ano no one ever said “I’m sorry” because an apology was an admission of guilt.
Over the past two decades, however, many U.S. hospitals have reversed this approach,
encouraging doctors to disclose errors at the time they occur. At the University of
Michigan, which initiated the practice 15 years ago, the number of lawsuits dropped 68 percent in six years.
When the University of Illinois instituted a similar policy in 2006, malpractice lawsuits
dropped by nearly 50 percent.
Since then, many hospitals and medical centers have followed suit. Both the Joint
Commission on Hospital Accreditation and the American Medical Association have
encouraged hospitals and doctors to open lines of communication with patients and
families in order to decrease the burden of medical malpractice claims.
Improving Communication Not an Easy Task
Disclosing medical errors is an important aspect of physician-patient communication,
but it is by far not the only one. Ineffective communication between patients and their
doctors also contributes to the preventable medical errors that often lead to malpractice suits.
Nonetheless, communicating effectively in today’s healthcare environment is difficult, to
say the least. In an essay published in the Wall Street Journal in 2013, Harlan Krumholz
sums up the problem nicely when he describes the “production mentality that focuses
intently on relative value unit, the currency of medical output, rather than the results
achieved with patients—including the nature of the relationships.”
How can a doctor engage in a meaningful dialogue when he is typing information into
an EHR as the patient talks? How can a physician establish rapport and empathy when
the average patient visit is 11 minutes long?
One solution may be to use more of those allotted minutes listening to what the patient
has to say, says Alex Lickerman, an internist who is the director of the university
Student Health and Counseling Services at the University of Chicago Medical School.
And at least a few studies seem to bear him out. According to one 1999 study of primary
care physicians, doctors let patients talk for 23 seconds before redirecting them to
something else, and only one in four patients were able to finish what they had to say. In
another study done at the University of North Carolina in 2001, patients were
interrupted after only 12 seconds, either by the physician himself or an intrusion, such
as a beeper or knock on the door.
“People feel dissatisfied when they don't get a chance to say what they have to say," says
Lickerman. “It's not the actual time or lack of time people are complaining about — it's how that time felt."
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