November-December 2007 Reporter - TMLT: Medical Liability Coverage

ReportertheTEXAS MEDICAL LIABILITY TRUST

November-December 2007

Special issue — includes a 3-hour CME activity

His identity was secret. He was known online as Flea. Flea was a pediatrician involved in a mal-

practice suit and a regular blogger. On his blog, drfleablog, he unloaded pent up emotions concerning his lawsuit. Flea disparaged the jurors. He revealed details of his conversations with jury experts. Flea criticized the plaintiff’s at-torney and gave away the strategy of his defense team. After all, “On the Internet, nobody knows you’re a dog.” 1

Dr. Robert P. Lindeman, a pediatrician practicing in Boston, was being sued for failure to diagnose diabetes in a 12-year-old boy who ultimately died. The plaintiff’s attorney, Elizabeth N. Mulvey, had posted slides on the Internet from a lecture she had made to a group of law students. The physician-blogger, Flea, found those slides and posted a link to them on his blog. A colleague of Mulvey read Flea’s blog and saw the link to the slides. 2 When Mulvey was told of this, she read Flea’s blog and found postings about a case very similar to the one in-volving her client. She also read deroga-tory statements about a female plaintiff’s attorney. 3

continued on page 2

Anonymity, patient disclaimers among issues to consider when hosting or contributing to blogs.

by William Malamon

Blogger beware

2 the Reporter November-December 2007

continued from page 1 What happened next was described by The Boston Globe as “a Perry Mason moment updated for the Internet age.” During cross-examination, Mulvey asked Dr. Lindemen if he was the blogger Flea. Un-der oath, Dr. Lindeman admitted that he was Flea. The next day, Dr. Lindeman settled his case for what The Boston Globe reported as a substantial amount. 3 “The morning after, drfleablog.blogspot.com was no more.” 4

Flea thought his identity was secret, but anony-mous bloggers can be identified. Both Whole Foods CEO John Mackey and Los Angeles Times journalist Michael Hiltzik had their blog identities revealed under embarrassing circumstances. 1 The lesson here is — think before contributing to a blog.

A short history of blogsThe first blogs — described as online diaries —

appeared in the early 1990s. Justin Hall, called the “founding father of personal blogging,” started one of the first blogs in 1994. His online diary lasted until 2005 and featured postings about his personal life. 5 Hall’s online diary was like most others – a high-maintenance hobby written by a “techie.”

In 1997, Jorn Barger first called his online diary a web log. It featured random posts about his James Joyce research and his observations on popular culture. The words “web log” were soon shortened to blog. 6

Around this time, the number of blogs exploded. This was due in part to the appearance of several blog hosting services such as WordPress and Google’s Blogger. Since 1997, the number of blogs has increased greatly. The number grew to 4.12 million in 2003 and to 35.4 million in 2005. 6 Blog hosting programs required less technical knowledge to start a blog, so people with a greater range of expertise could write blogs. Thus more commercial and professional blogs began to appear.

Along with the increased popularity of profes-sional blogs came an increase in medical blogs. While the current number of medical blogs is un-known, a study recently found that 120,000 Ameri-cans are visiting medical blogs to learn about their illnesses. 7

Why physicians write blogsWith the growth of medical blogs also comes a

greater number of physicians contributing to and hosting blogs. These doctors have become strong advocates for this emerging medium.

Charles Meyer, MD, editor in chief of Minnesota Medicine, believes that blogs can be used to greatly broaden accepted opinions in the medical communi-ty. “Too often opinion in medical circles is restricted to the oracular word of the New England Journal of Medicine or shoot from the hip ‘authority’ in the doctor’s lounge,” wrote Dr. Meyer. “Medical blogs have the potential to offer a national dialogue.” 6

Another vocal proponent of physician blog-ging is Nicholas Genes, MD, PhD. His own blog,

Blogborygmi, began as a diary of his experience as a medical student. After a year, Dr. Genes began a site linking other physicians’ medical blogs, calling it Grand Rounds. “Grand Rounds has grown so popular that some bloggers have recently begun calling for it to stop listing every submission.” 7

Grand Rounds allows a new host blogger to choose a new topic each week. The topics are as diverse as the hosts, ranging from discussions about political views to a hypothetical conversation with Star Trek’s Dr. McCoy about medical marijuana. 7

Dr. Genes encourages physicians to use blogs to record their thoughts. In an article directed to medical students, he writes that blogs are places to “record your feelings, vent your frustrations, and register difficult experiences.” He also states that writing in blogs can help physicians “chart prog-ress through the years” and “open up educational frontiers” by referencing “archived clinical cases and school lectures.” 8

Allen Roberts, MD, another advocate of physi-cian blogging, started his blog in 2002. An emergen-cy medicine physician from Fort Worth, Dr. Roberts relates that the state of medical blogs has never been better. 7 In a phone interview (August 22, 2007) Dr. Roberts said that blogs are a great place for physi-cians to voice their opinion and to explain to a lay audience what they do. He also said that blogs are a great place for doctors to market the services they provide.

The key to a successful blog is posting often and regularly. For an emergency medicine physician like Dr. Roberts, time is limited. So on Dr. Robert’s blog, his posts range from a few each day to one every three days.

Risk management considerationsWhile there are many positive aspects to physi-

cian-written blogs, “. . . Internet writings are not particularly anonymous and these online postings could put them at risk of violating patient privacy, angering colleagues, or facing a malpractice law-suit.” 4

While blogs have the potential for good, physi-cians should be mindful of the risks.

AnonymityPhysicians — and bloggers in general — should

remember that on the Internet, there is never a guar-antee of anonymity. “It may be tempting to post to a blog as if you were anonymous,” says Jill McLain, senior vice president of claim operations at TMLT. “However, using blogs as a place to express frustra-tions can be very risky. Physicians must be cautious since a plaintiff’s attorney can comb the web for any information that would give him or her an advan-tage in a medical malpractice suit.”

Patient informationPhysicians who contribute to blogs should avoid

identifying patients. Craig Hildreth, MD, an oncolo-gist who hosts a blog, says he always, “change(s)

November-December 2007 the Reporter 3

identifiable information such as sex, age or even type of cancer.” 4

Physicians must also follow HIPAA rules. “HIPAA stipulates that physicians must protect their pa-tients’ identifiable health information. Physicians must obtain a signed authorization from the patient before using any information that could identify a patient in a blog,” says Stacey Agnew, manager of TMLT’s risk management department.

DisclaimersPhysicians who write books about patient care

often include disclaimers that the content is for information purposes only and is not intended to be a substitute for professional medical advice, diagnosis, or treatment. This protects the author from readers who may consult the book instead of their physicians and later decide to sue the author. Physicians who host blogs should also include a disclaimer. “The disclaimer should alert readers to never substitute information from a blog for a physical exam by a physician,” says Agnew.

Physicians should also be aware of the risks involved when patients post their symptoms or medical concerns on a blog and expect to receive a timely answer about treatment. “Physicians should consider disclaimer wording that makes it clear that a reader should never rely on a medical blog for around-the-clock-care,” says Agnew.

Writing about a claimWhen a claim or lawsuit is filed, TMLT advises

policyholders to not discuss the case with anyone except a TMLT claims representative or their de-fense attorney. In this instance, discussion includes posting a comment on a blog. As stated earlier in this article, even anonymous postings about a claim would be considered imprudent and could be a violation of the policy conditions.

Additionally, it would be prudent for physicians to follow this same advice in the event of an adverse patient outcome or if there is a concern that litiga-tion might occur in a specific case.

Guidelines for bloggersFor physicians considering starting their own

blogs, American Medical News offered the following advice:

• “Be careful about what you say, even if you aren’t using your real name. Never assume that you can’t be identified. • Never disclose information or details that identify patients. Tell readers you’re masking identities and consider including a disclaimer to that effect.• Remember that whatever you write will be per-manently online and could be read by potential employers or others. • Ask your hospital, practice, or other employer about its policy on blogging. • Post a disclaimer that the views you are ex-pressing are your own.

• Advise readers that you are not offering medi-cal advice. If readers ask for a diagnosis, tell them to consult their physicians. • Don’t insult another doctor or patient. Don’t type anything you wouldn’t say in person.” 7

Sources1. Regan J. On the Internet, everyone may find you’re a dog. Christian Science Monitor. July 18, 2007. Available at http://www.csmonitor.com/2007/0718/p17s01-stct.html.2. Booth B. Internet won’t protect your secret identity. Am Med News. August 13, 2007. Avail-able at http://www.ama-assn.org/amed-news/2007/08/13/prca0813.htm.3. Saltzman J. Blogger unmasked, court case upended. The Boston Globe. May 31 2007. Avail-able at http://www.boston.com/news/local/ar-ticles/2007/05/31/blogger_unmasked_court_case_upended.4. Dolan PL. Blog at your own risk. Am Med News. July 2, 2007: 14-15.5. Harmanci R. Time to get a life – pioneer blogger Justin Hall bows out at 31. San Francisco Chronicle. February 20, 2005. Available at http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/02/20/MNGBKBEJO01.DTL6. Meyer C. Down the rabbit hole. Minnesota Medi-cine. November 2006; 89. 7. Chin T. Blogger’s grand rounds. Am Med News. January 15, 2007:16-17.8. Genes N. Get the word out: Communication vital in healthcare business. www.medscape.com. Janu-ary 31, 2007. Available at http://www.medscape.com/viewarticle/551145.

William Malamon can be reached at [email protected].

Medical blogs Blogborygmi and Grand RoundsAvailable at http://blogborygmi.blogspot.com

GruntdocAvailable at http://gruntdoc.com

Kevin, MDAvailable at http://www.kevinmd.com/blog

Medpundit Available at http://medpundit.blogspot.com

Health Wonk Review Available at http://www.healthwonkreview.com/mt


TMLT 3-hour CME activity

How poor physician-patient communicationcan undermine patient care

by Peggy Seeger

improvement?Room for


Room for improvement?

Course authorPeggy Seeger is a freelance medical writ-

er who lives in Austin, Texas.

DisclosurePeggy Seeger has no commercial affili-

ations/ interests to disclose related to this activity.

Target audienceThis three-hour activity is intended for

physicians of all specialties who are inter-ested in practical ways to reduce the poten-tial for malpractice liability.

CME credit statementTexas Medical Liability Trust is accred-

ited by the Accreditation Council for Con-tinuing Medical Education (ACCME) to provide continuing medical education for physicians. TMLT designates this educa-tional activity for a maximum of 3 AMA PRA Category 1 Credits.™ Physicians should only claim credit commensurate with the extent of their participation in the activity.

Ethics statementThis course has been designated by

TMLT for 1 hour of education in medical ethics and/or professional responsibility.

DiscountTMLT policyholders who complete this

course will earn a 3% discount (maximum $1,000) that will be applied to their next eli-gible policy period

DirectionsPlease read the entire article and answer

the CME test questions. To receive credit, submit the completed test and evaluation form to TMLT. All test questions must be completed. Please print your name and ad-dress clearly. Please allow four to six weeks from receipt of test and evaluation form for delivery of certificate.

Estimated time to complete activityIt should take approximately 3 hours to

read this article and complete the ques-tions.

Release/review dateThis activity is released on December 1,

2007 and expires on December 1, 2009.

IntroductionThe clinical interview is the physician’s

primary diagnostic and therapeutic tool, especially in primary care settings. Dur-ing the course of their careers, physicians typically conduct from 160,000 to 200,000 interviews.1 The success of each of these in-terviews depends in large part on how well patients and physicians communicate.

More than 200 years ago, Thomas Per-cival described in Medical Ethics the impor-tance of communication: the “life of a sick person can be shortened not only by the acts, but also by the words and manner of a physician.” 2 However, modern medical education still focuses primarily on disease etiology, diagnosis, prevention, and treat-ment. As medical technology continues to expand and more diagnostic and thera-peutic options become available, medical schools primarily train physicians to de-pend more on technology, structured data collection, and diagnostic tests than on the patient interview, examination, and com-munication skills.

Professional and patient expectations of medical care, patient profiles, and the busi-ness of medicine are all changing and plac-ing increasing demands on physicians. There is greater emphasis on the reduction of risk factors. Patients have become more conscious health care consumers, expect to be given more information and individual-

ized treatment, and want to participate in medical decision-making. Practice popu-lations are changing with increases in the number of elderly and minority patients. More patients are using the Internet to com-municate with medical professionals and to access health information. Managed care and other reimbursement plans influence the use and costs of services and measure health care professionals’ performances, including the time patients spend with their physicians. Most office-based physi-cians feel pressured to see more patients in the same amount of time and reduce costs without sacrificing quality of care. Many physicians would argue that there simply is not enough time to communicate more with patients, much less share decision making with them.

Effective communication can help phy-sicians better manage the demands of mod-ern medical practice. Patients who feel they communicate well with their physicians are more satisfied with their health care, have improved health outcomes, and adhere more frequently to treatment regimens. These outcomes can reduce the time phy-sicians spend in dealing with suboptimal therapeutic outcomes, adverse side effects, and patient dissatisfaction.

The physician-patient relationship is one of the most complex because it “in-volves interaction between individuals in

Objectives

At the conclusion of this educational activity, the physician should be able to:

1. describe four benefits of effective patient-physician communication;

2. discuss the possible legal implications of poor communication and relationship problems with patients;

3. describe the skills required for communicating with patients during stressful or difficult situations;

4. describe two tools for helping patients make decisions; and

5. list the appropriate ways to use e-mail with patients and describe concerns regarding online health information.



non-equal positions, is often non-volun- tary, concerns issues of vital importance, is therefore emotionally laden, and requires close cooperation.” 3 Consequently, being an effective communicator is not easy; it involves listening, understanding different personalities and communication styles, and requires patience and empathy. How-ever, these are all learnable skills. This CME course discusses the benefits of good patient-physician communication and the possible legal implications of poor commu-nication. Primarily, it offers a guide to con-ducting effective clinical interviews based on shared communication and decision making and describes specific skills and communication behaviors associated with reduced medical liability.

Benefits of effective communicationSubstantial research has demonstrated

the benefits to patients from more effective physician communication.

Enhanced satisfaction Patient satisfaction is commonly used

to evaluate whether physicians are com-municating adequately with their patients. Dissatisfaction with communication and/or collaboration is one of the main reasons patients change physicians.4 Further, dis-satisfied patients are more likely to initiate malpractice suits 5 and less likely to comply with medical recommendations. 2

The following communication behaviors can promote patient satisfaction:

• engaging in social conversation; • establishing a positive, caring connec-tion within the first few minutes of an office visit; • providing adequate information on diagnosis, cause of the patient’s disease, and treatment options; • using more psychosocial questioning (e.g., about feelings, social situation) and less medical questioning;• recognizing patients’ emotions and expressing physicians’ own emotions accurately; • adopting a more patient-centered, less dominant interviewing style; and • using more nonverbal communication.1 The perception that the physician has

spent enough time with the patient during

the visit is an important factor in patient satisfaction. However, satisfaction depends more on the quality of the patient-physician communication and whether the patient’s reasons for the visit were addressed than on how long the visit lasts. 4

Improved compliancePoor compliance is the most common

cause of poor treatment outcomes. 6 Partial compliance is even more serious because it can lead to “additional and often unneces-sary tests, dosage adjustments, changes in the treatment plan, emergency department [ED] visits, or hospitalizations, which ulti-mately results in increased cost of medical care.” 6 Poor compliance also leads to in-creased morbidity and mortality. Patients (especially those with chronic diseases) who follow medical recommendations op-timize the treatment and have better health outcomes. 1

The results of 10 studies demonstrate that a trusting, supportive physician-pa-tient relationship is one of the most im-portant factors in increasing compliance. 7 Other critical factors include the patient’s understanding of his or her illness, the ra-tionale for drug therapy, instructions for use, 1 and potential side effects and how to control them. 7 Communication behaviors that enhance compliance include:

• providing more information; • engaging in positive talk; • asking more specific questions about compliance; and • communicating about compliance with emotion in a consistent and per-suasive manner. 1

More accurate diagnosis and improved outcomes

Ideally, effective physician-patient com-munication should lead to better health outcomes. 3 One study demonstrated that training in effective communication greatly increases the physician’s skills in interview-ing and in establishing interpersonal rela-tionships, and makes them more diagnosti-cally efficient (i.e., at eliciting full, relevant data from patients). A significant number of randomized controlled trials and analytic studies of physician-patient communica-tion have demonstrated that the quality of communication (both during history-taking

and discussions of management plans) sig-nificantly and positively influenced patient health outcomes, including: physiologic measures (blood pressure, blood sugar, and pain); emotional and psychiatric health; pain symptom resolution; functional status; quality of life, and patient’s “perception of overall health status.” 8

Physician communication behaviors that have been associated with better health outcomes and fewer psychological difficul-ties (e.g., anxiety), include:

• more information-giving and fewer controlling behaviors (e.g., interruptions and not encouraging questioning); 9

• facilitating the development and expression of active partnerships (e.g., giving patients the opportunity to choose among treatment options); 1 • responsiveness to the patient’s emo-tional state (associated with positive outcomes in physical and emotional health); 1, 9 and

• facial expressiveness, such as smil-ing and looking at the patient (strongly correlated with short- and long-term increase in physical and cognitive func-tioning). 10

Legal implications of ineffective communication

Not all medical liability suits filed against physicians are prompted by medical errors. Patients often cite interpersonal aspects of care, such as poor communication, as cen-tral to the decision to initiate litigation. 11

In a review of plaintiff’s depositions from settled malpractice suits against a large metropolitan medical center, problematic relationship issues between physicians and patients and/or families were identified in 71% of the depositions. 12 Four primary types of physician behaviors were revealed in the depositions: deserting patients (32%); devaluing patient and/or family views (29%); poor delivery of information (26%); and failing to understand the perspectives of patient and/or family (13%). 12 Com-munication behaviors that convey a lack of concern and even antagonism can lead to litigation whereas behaviors that strongly communicate caring and concern may not. 13

Negative communication behaviors tend to be seen by patients as a violation of the



inherently caring nature of the physician-patient relationship. 13

A number of studies have investigated which types of physician communication behaviors lead to litigation. Failure to com-municate in a timely and open manner, a perceived lack of collaboration in deci-sion making, a perception of indifference coupled with an adverse outcome are often reasons patients claim they seek legal rem-edies. 12, 13 During a 3-year period, Hickson and colleagues investigated the self-report-ed reasons that prompted families to file malpractice claims following permanent perinatal injuries or deaths. Many families expressed dissatisfaction with physician-patient communication and believed that physicians would not listen (13%); would not talk openly (32%); attempted to mislead them (48%); or did not warn them about long-term developmental problems (70%). 14

In a study published in the Journal of the American Medical Association, Levinson compared the behaviors of “claims” vs. “no-claims” physicians using audiotapes of routine visits to 59 primary care physicians. The study found that certain communica-tion behaviors were associated with fewer malpractice claims. Compared with physi-cians who had claims, no-claims physicians were more likely to educate patients about what to expect from the visit and how it would proceed; laugh and use humor more; solicit patients’ opinions; check for patient understanding; and encourage patients to talk. No-claims physicians did spend more time (on average 3.3 minutes) in routine visits than did physicians with claims. 15

In 2002, Ambady and colleagues investi-gated the relationship between a surgeon’s tone of voice and his or her malpractice claims history by rating variables, such as warmth, hostility, dominance, and anxiety from taped voice clips. Voice tones that were rated as being higher in dominance and lower in concern/anxiety significantly identified surgeons with previous claims compared with those who had no claims. The authors concluded that physicians who have a “negative” manner (e.g., use a harsh or impatient tone of voice) may encourage more thoughts of litigation after an adverse outcome, whereas a physician with a “posi-tive” manner may not. Medical encounters are often emotionally stressful for patients,

which may make them more sensitive to the emotions expressed by physicians through subtle clues such as tone of voice. 16

These studies reveal a distinct correla-tion between communication and mal-practice claims, suggesting that improved communication practices can help reduce liability exposure. Physician-patient com-munication that builds trust can help bring patient expectations in line with reality, re-duce patient anxiety, and result in a reduc-tion in both the frequency and the severity of liability claims. 17

Patient characteristics that influence communication

Literacy and health literacy “Nearly 90 million people in the United

States have literacy skills at or below high-school level.” 7 The lowest literacy levels are found among the elderly, minority popula-tions, patients with fewer years of educa-tion, at lower socioeconomic levels, and with limited English proficiency (LEP). 7 Patients with poor literacy skills also have low functional health literacy and are less able to understand basic health information found on prescription labels, appointment slips, test results, and instructions on pro-cedure preparation. These individuals may also be unable to give informed consent for medical procedures. 1 These patients re-quire greater assistance if they are to com-municate with physicians and participate in decision making.

Limited health literacy is associated with poor health outcomes, quality of life, and physical functioning; less frequent screen-ing for diseases; disproportionately high rates of disease and mortality; increased use of primary care, rates of hospitalizations and ED utilization; and more difficulty ne-gotiating the health care system. 4, 18, 19 Many studies have suggested that low health literacy is linked to poor communication between physicians and their patients. 19 Some physicians tend to spend less time with their less literate patients, engage them in less dialogue, are less informative, give fewer explanations, and use less com-prehensible language. However, these phy-sicians do tend to give these patients more emotional support. 1

While physicians routinely encounter patients with limited literacy skills, many physicians may be largely unaware of these literacy deficits. In one study of patients with a reading deficit, physicians did not recognize the deficit in 90% of those pa-tients. 1 Additionally, years in school is not always an accurate indication of literacy, since adult reading comprehension tends to be two to five years below years of educa-tion actually completed. 1 Patients also may be unaware of their limited literacy skills or may not mention it to their physicians.

Language Almost 50 million Americans speak a

language other than English and 22 million have limited English proficiency (LEP). 20 As with literacy, language deficiencies can have significant negative effects on health and health care. LEP patients are less like-ly than native English speakers to have a consistent source of medical care, receive preventive services, comply with medica-tion regimens, and return for follow-up ap-pointments after visits to EDs. Some studies also show that LEP patients receive lower quality health care, have higher rates of hospitalization and drug complications, 20 worse control of chronic diseases, and ul-timately use more expensive health care resources. 18 While more resources are used in their care, LEP patients have lower levels of satisfaction with their care. LEP patients often have no access to medical interpret-ers, which exacerbates their problems in re-ceiving health care. A recent study reported that no interpreter was used in almost half of ED cases involving LEP patients. An-other factor is that few physicians receive any training in working with interpreters; only 23% of teaching hospitals provide this training. 20

In 1998, the Office for Civil Rights of the Department of Health and Human Services issued a memorandum prohibit-ing discrimination on the basis of national origin. According to this memorandum, the denial or delay of medical care because of language barriers is discriminatory. Addi-tionally, recipients of Medicaid or Medicare funds are required to provide adequate lan-guage assistance to LEP patients. However, only thirteen states currently provide third-party reimbursement (through Medicaid



and the State Children’s Health Insurance Program) for interpreter services. 20

Race and culture“The literature documents that all ethnic

minority populations in the United States lag behind European Americans (whites) on almost every health indicator, including health care coverage, access to care, and life expectancy, while surpassing whites in al-most all acute and chronic disease rates.” 21 For example, infant mortality rates among African Americans, American Indians, and some Asian Americans are twice as high compared with those rates among whites; Hispanic women are at a fourfold to eight-fold greater risk for cervical cancer; and the rates of diabetes for African Americans are 2 to 4 times that of whites. 21

Americans in minority groups are ex-pected to comprise more than 47% of the population by 2050. 22 These demographics highlight the need for physicians to increase their cultural awareness. An increasing number of laws, regulations, and standards are being enacted to encourage health sys-tems to respond to these diverse linguistic and cultural needs by becoming “culturally competent.” 22

Sociocultural differences between pa-tients and physicians influence communi-cation and clinical decision making. Misun-derstandings based on these differences can lead to patient dissatisfaction, poor compli-ance, poor health outcomes, diagnostic er-rors, longer office visits, delays in obtaining consent, unnecessary tests, and lower qual-ity of care. 23

“A Physician’s Practical Guide to Cul-turally Competent Care” is an online course offered by the TMF Health Quality Institute and the Centers for Medicare and Medicaid Services. The course is free and physicians can earn up to nine hours of CME. For in-formation, please visit http://www.tmf.org/poqi/culture/index.htm.

Age By 2030, 20% of the U.S. population will

be age 65 or older, and older adults present different medical challenges than younger adults. 23 Currently, the average 75-year-old has three chronic conditions and uses five prescription drugs. In a 2002 survey of 250 primary care physicians, “only half believe

their colleagues can adequately treat even common geriatric problems.” 24

One of the challenges faced by physi-cians is appropriately prescribing and mon-itoring medications in older adults. Because they often take several medications pre-scribed by multiple physicians, older adults are at a greater risk for adverse drug reac-tions than younger adults. These reactions can have serious consequences. Because the aging process affects the pharmacokinetic and pharmacodynamics of drugs, older patients are at risk of being given medica-tions or dosages that are inappropriate. 24 Memory impairment and sensory changes, such as vision loss, can create challenges for the elderly in complying with complex medication regimens. Noncompliance is a common problem in adults older than 65. 25 According to a 50-state study, 40% of se-niors reported not complying in some way with their “doctor’s orders” regarding their medications. 26

Disability More than 54 million people in the U.S.

have been identified as having a disability. 27 Even though the Americans with Disabili-ties Act has made health care facilities more accessible, many people with disabilities do not fully use health care services. People with disabilities more often seek medical attention for emergency or acute conditions rather than for primary and preventive health care. 27 People with disabilities may be embarrassed because their disability ne-cessitates additional assistance from staff.

Gender Many studies have shown that — in

general — men and women communicate differently. These differences can be seen in medical interactions. Research demon-strates that male patients may often find it more difficult to disclose information about themselves in conversation. 1 Women pa-tients tend to have different expectations of their physicians. Women often want an integrated approach to their health care; ex-press symptoms differently than men; and are more sensitive to poor communication. Women may also be more concerned with how well their physicians listen to them and whether they are taken seriously as partners in their care.4

There are also differences in the ways physicians communicate with men and women. In general, physicians give women more information in a more comprehensible manner, largely because women ask more questions and make sure they understand explanations. Research has also shown that physicians make more attempts to include women in discussions, and give them more opportunities to make decisions. 1 Other studies have demonstrated that physicians also tend to be more empathetic towards women and speak more positively to them. 1

Male and female physicians also com-municate differently with their patients. A meta-analysis of 26 studies in primary care settings concluded that female physicians compared to male physicians tend to be more patient-centered in their communications, have longer office visits with their pa-tients, have more psychosocial discussions (especially about emotions), and engage in more active partnership building. 4

Effective communication during the clinical interview

The three-function model of the clinical interview that is routinely taught in medical schools includes building a good therapeu-tic relationship, collecting data to determine the nature of the problem, and implement-ing a management plan. Effective commu-nication between physicians and patients is a fundamental tool for achieving these tasks. The following section describes a more patient-centered, shared approach to these three tasks –– building an empathic patient-physician partnership, exchanging information, and reaching an agreed upon treatment plan. This section also discusses the communication behaviors needed to implement this approach.

Substantial research indicates that pa-tients can adopt specific behaviors that will improve their communication with physicians and ultimately their health and satisfaction. 28 Providing all new patients with a printed handout on how to talk to physicians will encourage these behaviors. “How to Talk to Your Doctor” is available at http://jama.ama-assn.org. “Getting the Most from a Visit to the Doctor” is available from the Harvard School of Public Health



at: http://www.hsph.harvard.edu/health literacy/talk_drvisit.html.

Before the interview startsBefore the clinical interview begins, gath-

er information by carefully observing the patient’s posture, demeanor, and activity. Nonverbal behaviors (e.g., smile or frown, wringing of hands, visible fatigue) can re-veal a lot about a patient’s level of anxiety, concern, and physical condition. Commu-nicate in ways that will set a tone of respect, honesty, and concern: greet the patient by name (formally or informally depending on circumstances), exchange a firm handshake (or another culturally appropriate greet-ing), and introduce yourself using your first and last names. Let facial expression and posture convey confidence and willingness to help patients resolve their problems. Es-tablish eye contact quickly to invite patients to converse. Engage briefly in social, non-medical conversation to put patients at ease and to express warmth and friendliness. 4

Function 1: Build a partnershipThe first step in building a partnership is

getting to know the patient by eliciting psy-chosocial information about the patient’s personal life, such as important relation-ships, work, and interests. Consider saying, “Before we get to the medical problem, why don’t you tell me a little about yourself.” This information can be invaluable in diag-

nosis and management. Most patients will provide a short summary, seldom longer than 30 seconds, of their lives and interests.30 Another area to explore is what the patient generally expects from the physi-cian. Sometimes a new patient has left a previous physician because of dissatisfac-tion, perhaps a communication problem, and this information can help prevent prob-lems in the physician-patient relationship.

Share control in the relationship Paternalism is a prevalent model of phy-

sician-patient relationship, although this may not be the most efficient or desirable model. 1 With paternalism, the physician controls the relationship by setting the agenda and goals for the interview, control-ling the flow of information (primarily one-way) and decision making, and defining the condition in medical terms. The phy-sician alone or in collaboration with other clinicians undertakes deliberations about treatment, and patients have very little input. The physician acts in the patient’s “best interests,” which are determined by assumptions the physician makes about the patient’s values and preferences. 31

In the era of consumerism, paternalism became unacceptable to some patients. A model was promoted that reversed control of the relationship. In the consumerist, or patient-centered model, the patient defines values and treatment preferences that are unquestioned by the physician, sets the

goals and agenda of the visit, and has sole responsibility for decision making. 1

The physician provides the information about treatment options and supplies ap-propriate medical services. In a survey of patients and physicians, 60% of the public and 81% of physicians supported the idea of consumerism. However, only about half the public reported actual instances of chal-lenging a physician and only 8% of physi-cians reported that they had acquiesced to patients’ demands for decision-making power. 1

A third model exists that allows physi-cians and patients to share control of the re-lationship — mutuality. In this model, phy-sicians and patients both bring strengths and resources to the relationship. 1 Control shifts during the interview. Goals, agenda, and decisions result from information ex-changed through dialogue and negotiation between partners. The patient provides in-formation about his or her medical, psycho-logic and social concerns, personal circum-stances, and which outcomes are personally most important. The physician provides the medical information needed to reach a decision and states his or her values so the patient can understand the physician’s perspective. The physician and patient can then discuss how the various treatment op-tions meet each other’s priorities and reach a mutually agreed upon decision. 31

Research has demonstrated that this type of physician-patient relationship has important consequences for patients’ health outcomes. Patients who are more in control (i.e., ask more questions, make more at-tempts to direct the conversation) report fewer health problems and functional limi-tations because of illness, days lost from work, and rate their health more favorably. When physicians are more controlling (ask-ing questions, giving directions, and inter-rupting), patients tend to report the oppo-site results. 32

Respond to emotional issues Empathy is essential for effective pa-

tient-physician communication, relation-ship building, and information sharing. A lack of empathy and compassion appears to be a predisposing factor in some malprac-tice suits. 1, 5 Basic empathic communication skills include active listening, recognizing

“Physician Self-Disclosure: Enough About You, What About Me?” 29

A recent report in the Archives of Internal Medicine revealed that many physi-cians, in the attempt to build rapport, actually waste patients’ time and lose their focus by interrupting patients with irrelevant personal information about themselves.

Researchers analyzed audio recordings of patient-physician encounters in primary care practices. In one-third of the recordings, physicians talked about themselves. The longer the physician disclosures went on, the less functional they were. Additionally, there was no evidence that the disclosures actually established rapport. The take-away message from this study is that sharing personal information has the potential to help build a good relationship, but physicians should keep it brief and focused on the patient.


when emotions (such as fear, anger, confi-dence in the physician) are present but not directly expressed, inviting exploration of these unexpressed feelings, and effectively acknowledging these feelings so the patient feels understood. 33

Growing evidence suggests that physi-cians who focus on patients’ emotions, as well as their physical health, obtain more accurate and thorough historical data, in-crease patient adherence and satisfaction, and have more effective patient-physician relationships. 30 Empathy has also been positively associated with better health out-comes (e.g., in patients with diabetes and hypertension). 32 Patients’ emotions can be invaluable clues in making a diagnosis and evaluating clinical progress. The feeling of being understood by the physician is inher-ently therapeutic for patients. 33

A common practical concern physicians have is that practice conditions may not al-low time to engage in discussions of emo-tions. However, clear evidence indicates that interviews that acknowledge patients’ feelings, ideas, and values actually save time. 30 Some research also suggests that primary care physicians generally are not very good at recognizing or responding to patients’ emotional distress. 1, 18 In one study, surgeons responded positively to patient’s emotional clues in 38% of cases, while pri-mary care physicians responded positively in only 21% of cases. 18

Patients may reveal their emotions di-rectly and spontaneously (“I am afraid of having an operation”), or with verbal clues (“Oh I guess I am not too concerned about this pain in my chest”). Patients often reveal their emotions in nonverbal ways, such as a furrowed brow, arms wrapped tightly around the body, a sagging body, or an anxious tone of voice. Physicians who gaze frequently at patients are more successful in recognizing clues of emotional distress, perhaps in part because eye contact en-hances listening skills and leads to a more accurate interpretation of nonverbal clues. 1 It is important for physicians to notice and respond to clues when offered by patients. Failure to do so may prevent further disclo-sure and limit the consultation to discus-sion of physical symptoms.

Suchman and colleagues derived a mod-el for empathic communication which is

based on taking opportunities to respond to patient’s verbal or nonverbal clues to their emotions. 33 When a patient expresses an emotion, it creates the opportunity for an empathic response. At that point, the phy-sician can explicitly acknowledge that emo-tion and encourage the patient to elaborate more clearly, thus providing an opportuni-ty to understand the patient more fully and acknowledge the emotion. The physician can also discourage the patient by not ac-knowledging the emotion, dismissing it, or abruptly shifting the discussion away from the emotion by changing the topic, general-ly to resume medical diagnostic questions. If the physician does not take advantage of this first empathic opportunity and the emotion remains unaddressed, the patient may attempt to bring it up again later in the interview or as the patient is leaving. Again the physician has the opportunity to re-spond to the expression of emotion or not, at the risk of patient dissatisfaction, a poor relationship, and diminished effectiveness.

Function 2: Exchange Information Physicians need information to establish

a correct diagnosis and treatment options. Patients need information to understand their medical problem and participate in deciding the best treatment option. The ex-change of information occurs mostly dur-ing the opening of the interview (the “pa-tient-centered” segment) when the patient primarily controls the flow of information and in the medical history (the “physician-centered’ segment) in which the physician controls the flow.

Patient centered segmentWhen beginning the clinical interview,

allow the patient to fully express all his or her reasons for the visit (symptoms, prob-lems functioning, concerns, fears, informa-tion, social isolation), which is referred to as the patient’s agenda. Use open-ended questions that allow the patient to lead the conversation. The issues a patient freely expresses may reveal important clues to the causes of physical, emotional, or psy-chologic symptoms and the patient’s social context. 4 Often the first problem a patient expresses is not his or her primary or only concern. Patients’ primary concerns are of-

ten hidden by what they perceive as “more legitimate” medical complaints. 1 An analy-sis of the concerns raised by patients during clinical interviews showed that “the first named concern was no more clinically sig-nificant than concerns that were expressed later” in the interview. 1

The key to eliciting a patient’s agenda is not interrupting the patient, but prompt-ing the patient to continue talking (“Tell me more,”) or repeat what was said so the patient can elaborate. As the patient’s con-versation slows ask “Is there anything else you wish to share.” Silence is sometimes a useful technique as it gives the patient time to think and possibly remember other con-cerns. Studies show that physicians inter-rupt patients in their opening statement af-ter an average of 15 to 23 seconds and often do not give patients the opportunity to re-turn to their agendas. 1, 18, 34 In two studies, patients who were allowed to describe all their concerns without interruption took no longer than two minutes to do so. By not al-lowing patients to fully communicate their agendas, physicians may miss opportuni-ties to obtain important data. 34 Patients may not state their full agendas because they are embarrassed, afraid of appearing foolish, or are anxious about their symptoms. 1

If their concerns and fears are suppressed at the beginning, patients may bring them up at the end of the interview (“Oh doctor, I have this chest tightness once in a while), which can mean a lengthy extension of the medical visit. It has been estimated that in 20% of routine primary care visits, patients introduce a new problem during the visit’s closing few minutes. 1 Once a patient com-pletely expresses his or her agenda, then the physician and patient can prioritize pa-tient concerns and decide which can be ad-dressed during the current visit.

There are three other areas to explore in the patient-centered part of the interview.

• What is the affect of the illness on the patient? Specifically, how has it affected his or her functioning, relationships, and fi-nances. Ask open-ended questions such as “What has this illness been like for you?” or “How has it affected your daily life?”

• What are the patient’s ideas about the illness? Each patient has certain beliefs, con-cerns, and expectations about his or her ill-ness — the patient’s explanatory model. It



includes “the patient’s understanding of the cause, severity, and prognosis of an illness and how the illness affects his or her life. Patients’ explanatory models can be cultur-ally determined and influenced by social factors, such as education.” 35 Patients may have an incorrect medical explanation for symptoms or may have religious or cultural beliefs at odds with a medical explanation. 1 Understanding the patient’s explanatory model is important in explaining diagnosis and treatment options. Ask “What do you think is causing these headaches?”

• What are the patient’s expectations about treatment? Patients are also likely to have expectations concerning the care that they will receive (e.g., tests or medications). It is important not to make assumptions about patients’ expectations, but to elicit these as a basis for providing information and negotiating a management plan. 36

Physician centered segment After the opening, the control shifts

from the patient to the physician during the medical history and examination. Some re-search demonstrates that in routine medical practice, closed-ended questions outnum-ber open-ended questions by two or three to one. 1 Many physicians may believe that asking closed-ended questions is a more ef-ficient way of obtaining information. Con-trary to this belief, open-ended questions elicit twice the amount of relevant infor-mation as closed-ended questions. 1 Open-ended questions, such as “Tell me about the pain in your leg” can be a starting point.

Following with closed-ended questions can uncover specific information about the cause of the patient’s ailment. (“Does your chest pain only occur when you exercise?”) As the physician transitions to the physical examination, the conversation may contin-ue. Be aware that facial expressions during the examination may offer clues to the pa-tient about his or her condition.

The final exchange of information in-volves (1) reaching a mutual understand-ing of the patient’s disease, its causes and potential physical and psychological affects on quality of life; (2) a discussion of the di-agnosis or further diagnostic evaluations necessary to make a diagnosis; and (3) the patient’s responses to diagnosis, especially emotional ones.

Function 3: Reach a mutual decision about treatment

“Shared decision-making” between phy-sician and patient is becoming an increas-ingly important topic in medical literature, academic research, and health policy arenas. The World Health Organization considers “autonomy . . . with respect to a person’s participation in choices about their own health” to be an important quality marker for health care systems.” 31 The American Medical Association Code of Medical Ethics states “the patient has the right to receive information from physicians and to discuss the benefits, risks, and costs of appropriate treatment alternatives.” 37

The proportion of patients who want to be involved in decisions about medical treatment rather than “leave decisions to their doctor” varies among studies. Early studies suggested that many patients pre-ferred to participate in decisions about their care; 87% of young patients; 62% of middle-aged patients; and 51% of older patients in one study. 38 About two-thirds of patients at a VA general medicine clinic expressed a preference for shared decision making re-lated to invasive diagnostic or therapeutic interventions. 39 Nearly 70% of inpatients with cancer preferred to participate in medical decisions. However, 47% of pa-tients with hypertension preferred to have their physician make therapeutic decisions, while 31% preferred that the physician make the decision considering the patient’s

opinion. 38 In a more recent population-based survey, 96% of respondents preferred to be offered choices and to be asked their opinions, but 52% preferred to leave final decisions to their physicians. 41

Some studies show that women, pa-tients who are more educated, younger, and healthier are more likely to prefer an active role in decision making, while Af-rican American and Hispanic patients are more likely to prefer that physicians make the decisions. 38, 41 Due to the variation in preferences, do not assume that all patients wish to participate in clinical decision mak-ing. Evaluate each patient’s preferences. 41

Information needsMost physicians assume substantial ad-

ditional time is required for discussions and shared decision making, although this be-lief has not been tested. 42 Many health care systems are beginning to use other health care professionals, support staff, and new interactive technologies to facilitate these discussions.

In recent years, the medical literature has paid a great deal of attention to exactly how much information patients want, es-pecially about their diagnoses, prognoses, and potential adverse effects of drugs. In recent years, medical ethicists have argued strongly that autonomy should prevail over “beneficence,” (i.e., withholding informa-tion so as not to take away the patient’s hope) and that patients should be informed whether or not they want the information.


Informed consent

The term informed consent is often used synonymously with shared medi-cal decision making. 40 In Texas, informed consent is governed by statute and is overseen by the Texas Medical Disclosure Panel (TMDP). The panel includes six physicians and three attorneys who review all treatments and procedures to de-termine which require informed consent and which do not. Procedures and treat-ments are then assigned to a list. Those requiring disclosure of risks and benefits and written consent are put on List A. Those that do not require disclosure and consent are put on List B. If a procedure or treatment does not appear on either list, the physician must then disclose all material and inherent risks that could influence a patient in making a decision. The lists, TMDP rules and forms can be viewed at http://www.sos.state.tx.us.



In general, it appears that patients want to be fully informed. One study of cancer pa-tients found that most, regardless of age, wanted all of the possible information — good and bad — about their diagnoses and prognoses. 38

Physicians are often concerned about how much patients want to know about potential adverse events associated with medications. Physicians may feel that de-tailed disclosure of information about drugs might decrease positive placebo ef-fects, increase side effects through the pow-er of suggestion, and decrease compliance. 1

However, research has shown that physi-cians often underestimate patients’ desire for information. Patients say that more in-formation about the risks associated with medications increases their confidence in the drug, improves their compliance, and generally makes them feel more comfort-able with the therapy. 1 Patients also say they prefer detailed and extensive disclo-sure of almost all risks, even those that are rare. 1 In a large survey of patients visit-ing outpatient clinics, 76% of respondents wanted to be told of all possible and all seri-ous adverse effects. In a sample of patients taking antihypertensive medication, only 31% were satisfied with information they received about possible adverse effects of the drugs. Other studies have shown that 50% to 90% of patients have expressed a desire for more information about adverse effects of medication. 37

Shared decision making process Shared decision making is a negotiation

process intended to lead to an agreement between the physician and patient about the diagnosis (usually confirmed by examina-tion or testing), the treatment approaches, and the diagnostic procedures and treat-ment plan. 31 Continuing to be mindful of the patient’s perspective, involving family members, and showing empathy will facili-tate this process. The shared decision mak-ing process involves the following steps.

Step 1. Present options. Most patients want information about alternative thera-pies, not just the one the physician is rec-ommending. 1 Inform patients about the potential risks and benefits, costs, and ex-pected outcomes associated with treatment options. This information allows patients to base their choices on their socioeconomic situation, treatment goals, and preferences (e.g., quality of life vs. clinical improve-ment). Help patients understand how the general risks and benefits of treatments ap-ply to them, and give them time to reflect on the trade-offs posed by different options.

Step 2. Present recommendations. Inte-grate clinical evidence, the patient’s pref-erences, and goals into recommendations. In situations where the evidence about benefits and risks are clear, explain how the recommendation is consistent with the patient’s goals. If physicians do not have a specific recommendation or if the evidence

is uncertain or mixed, present options dis-passionately. Discuss the treatment results, adverse side effects, and side effects that may be unusual or alarming. Encourage patients to ask questions.

Step 3. Agree on a treatment plan. Many patient consultations are not complicated and there is no need for an extensive nego-tiation to reach an agreement about treat-ment. More complex decisions may require physicians to explore conflicts between rec-ommendations and the medical evidence and patient preferences and goals to reach an agreement.

There are significant differences between decisions about acute conditions and the management of chronic disease. Many deci-sions that patients with an acute, life threat-ening disease face are relatively irreversible and usually have to be made in a relatively short period. Patients facing these decisions will need a great deal of emotional support and close collaboration to reach a decision. In managing chronic diseases, patients face multiple decisions, most of which can be reviewed often. The treatment plan should also include a contingency plan if the initial treatment does not succeed and an explicit agreement on the responsibilities the pa-tient and physician will assume to ensure optimal outcomes. Physician responsibili-ties may include education, follow-up, or routine testing. Patient responsibilities may include complying with the regimen, re-porting adverse effects or lack of improve-ment, and returning for follow-up.

In addition to communicating the plan of care to patients and assisting them in making medical decisions, the documenta-tion rules of the Texas Medical Board (TMB) specify licensed physicians must maintain an adequate medical record, which includes a written plan for care.

Complete TMB documentation rules are available at: www.tmb.state.tx.us/rules/rules/bdrules.php.

Step 4. Closing. Very briefly summarize the clinical findings, diagnosis, plan of ac-tion (including next steps for diagnostic testing), and instructions for follow-up and medications. Assess the patient’s un-derstanding of his or her condition and treatment by asking the patient to state

Sources for decision aids

Catalogs of health decision aids can be found on the following web sites.

• The Ottawa Health Research Institute (OHRI) maintains a registry of avail-able decision aids called the “A to Z Inventory,” as well as a general decision guide that can be used for any health decision. Available at http://decision-aid.ohri.ca/index.html.• The Mayo Clinic maintains a list of health decision guides. Available at http://www.mayoclinic.com/programsandtools/index.cfm.• Comprehensive Health Enhancement Support System (CHESS) is a comput-er-based system designed to help patients cope with a health crisis or medical concern. Available at http://chess.chsra.wisc.edu/Chess/home/home.aspx.



what he or she understands about what has been discussed. If the patient appears not to understand, seems to agree but ap-pears apprehensive, or actively disagrees, explore the patient’s values, preferences, and expectations more fully, or provide more detailed information. Ask if there are any final questions, and if the patient has any concerns that have not been discussed. This final step may save time in answering questions after the patient leaves the office. Finally, reassure the patient of continued support, availability to discuss concerns and problems, and, if appropriate, opti-mism about treatment outcomes. “It is not always possible to reassure patients about their diagnosis or treatment outcomes, but it is always possible to provide support and to show personal concern for them.” 36

Helping patients make decisions Time is a major concern for physicians

trying to share decision making with their patients. Patient decision aids are tools de-signed to help patients make specific choices about treatment by providing understand-able information about available options, individual risks and harms, and outcomes that are relevant to a patient’s health status and personal values. 43

These tools guide patients though the collaborative decision-making process and are intended as adjuncts to counseling. De-cision aids provide information in a variety of formats, including written materials, oral presentations of information combined with written and/or visual materials (e.g., flip chart, “decision board”), video programs, computer-based programs, and programs that combine interpersonal counseling with written or visual information. Most of these aids have been developed to help patients make decisions about life-threatening and chronic diseases or to help them detect and prevent a specific disease. 44

Several randomized trials have com-pared the use of decision aids with stan-dard care interventions. These studies have demonstrated that decision aids performed better in terms of enhancing patient knowl-edge; creating realistic expectations; and lowering decision-making conflict. The tools also improved the alignment between patient values and chosen therapies, in-creased the proportion of people actively

involved in decision making, and reduced the proportion of people who remained un-decided after an intervention. 4, 45

“For decisions that must be faced rou-tinely in office practice, educational materi-als such as pamphlets, videotapes, or even interactive videodiscs may be helpful for communicating basic information about a decision and the possible outcomes of dif-ferent management options, so that clini-cians’ limited time can be spent not on basic education, but on tailoring the management strategy to the patient’s preferences.” 46

Decision aids using computer software that combines health information with so-cial support, decision support, or behavior change are known as interactive health com-munication applications (IHCAs). IHCAs are especially beneficial to people with chronic conditions who experience a change in their conditions or medical needs. In a re-cent systematic review of IHCAs for adults and children with chronic conditions, IH-CAs were found to have a positive effect on user knowledge and perceived social support, and may improve behavioral and clinical outcomes. 47 A meta-analysis of studies on IHCAs demonstrated that the use of Internet-based IHCAs improved pa-tient knowledge of nutritional status and asthma treatment and improved the rate of behavioral changes, such as participa-tion in health care, slower health decline, improved exercise time, improved body shape perception, and 18-month weight loss maintenance. 48

Effective physician communication behaviors

Learning and maintaining good verbal and nonverbal communication skills can reduce liability exposure and enhance the health of patients, as well as their satisfac-tion with care.

Verbal communication skillsPhysicians may be perceived as not

speaking plainly, primarily because they of-ten speak in medical language, or “medica-lese.” Physicians generally speak as though their patients understand them and patients often act as though they understand when they really may be alarmed, confused, or reluctant to ask for clarification. 1 Technical

terms related to anatomy, diagnosis, proce-dure, symptom, or biochemical marker are still commonly used in medical encounters (on average 5 per visit) without explanation and when non-medical terms could have been substituted. 1 Physicians may even think that they are speaking in everyday language, but often patients and staff do not have the same perception. 3 However, patients may prefer that physicians use medical language when discussing their diagnosis. In one study, primary care pa-tients were asked to evaluate two medical problems labeled in lay terms or in medical terms (e.g., stomach upset vs. gastroenteri-tis). They rated the medically labeled prob-lems as more legitimate excuses for missing work, and indicated greater confidence in a physician presenting medically labeled diagnoses. 1

These strategies may help you commu-nicate more plainly with patients. 18

• Assess the patient’s baseline medical understanding before providing exten-sive information. “Before we continue, would you tell me what you already know about high blood pressure?”• Use plain language, not medical or vague terms that may have different meanings to a patient (e.g., chest pain instead of angina).• Encourage patients to ask questions about anything they do not understand. “What questions do you have about your coronary artery disease?” • Confirm the patient’s understanding. “Would you repeat what I have said to make sure I have explained clearly.”

It is also essential to look for signs of low literacy in patients. These signs in-clude trouble filling out questionnaires and forms, asking the physician to repeat some-thing rather than read it themselves, and allowing family members to take the lead in conversations. 4 Ways to address low lit-eracy include further simplifying language, slowing the pace of the conversation, using pictures or diagrams, avoid giving the pa-tient too much information at one time, and verifying understanding. 4

The Harvard School of Public Health has innovative materials to help simplify communication, including plain language glossaries in a number of therapeutic areas,

14 the Reporter November-December 2007 November-December 2007 the Reporter 15


brochures for patients on how to speak with physicians and plain language materials for older patients. These materials are available at http://www.hsph.harvard.edu/health-literacy/innovative.html#three.

Whether they wish to participate in treatment decisions, patients are entitled to fully understand their treatment options, including the medical evidence related to these options. 49 Communicating evidence is essential when the evidence is ambigu-ous, there are widely diverging views on different treatments, and the evidence is clear but interpretations made by the pa-tient are substantially different from the physicians. Patients may be better able to understand and evaluate medical evidence when physicians do the following.

• Communicate complex evidence us-ing non-technical language. • Adjust the amount and pace of information to the patient’s needs and preferences and give patients time to process the information.• Consider the patient’s values when discussing treatment options.• Determine the appropriate format for presenting evidence to each patient: general descriptions, numbers, educat-ed guesses, or graphical representations of quantitative data (e.g., human stick

figures or faces for single probabilities and vertical bar graphs for comparative information between options). • Describe benefits and risks for treat-ment or tests in general conceptual terms rather than quantitative terms. • Use decision-aids that tailor medical information to each patient’s knowl-edge level, concerns, and values. • Anticipate critical, unasked questions about clinical evidence and suggest discussing them since patients may not know the appropriate questions to ask or may be hesitant to ask. • Avoid overemphasizing uncertainty. Discussions about uncertainty might interfere with a patient’s full under-standing of a critical decision. • Explain the limitations of what is known while conveying confidently that this represents the imperfections of medical science rather than lack of competence of the physician. 49

Nonverbal communication skills Most of the meaning people derive from

communication comes from nonverbal messages. In fact, as much as 93% of face-to-face communications contain nonverbal behaviors. 50

Research has shown that physicians

who pay more attention to their nonver-bal communication behavior tend to have higher levels of patient satisfaction and understanding. These physicians are also better able to judge the meanings of their patient’s nonverbal expressions and ex-press their own emotions. 3, 50 Referring to the patient’s chart too frequently during the patient encounter leads to decreased pa-tient understanding, possibly because this activity interferes with making eye-contact and communication in general. 3

The nonverbal messages physicians communicate to patients should be eas-ily understood and perceived as consistent with verbal messages. There are a variety of nonverbal clues that can enhance verbal messages, but be aware that many common nonverbal clues can be interpreted differ-ently by patients from different cultures.

Body language Body language includes facial expres-

sions, eye contact, posture, body move-ments, and gestures. A concerned expres-sion can tell patients that the physician cares about them. A genuine smile at the end of the appointment can convey hope, a feeling of partnership, and a personal commitment to the patient. 50 Eye contact is critical. Phy-sicians who shift their gaze from patients to their medical records may be perceived as not listening. Patients are more likely to believe a physician is sincere and confident if the physician looks at them while they are talking. Maintaining eye contact up to 80% of the time is suggested for establish-ing rapport with patients. 50 In addition, by turning away from patients, physicians can miss a patient’s nonverbal clues.

Be aware that posture can indicate self-confidence but can also express aggressive-ness, fear, guilt, or anxiety. When seated, avoid awkward movements that can com-municate nervousness. Crossing your arms and legs can be interpreted as boredom, annoyance, defensiveness, or lack of open-ness. 50 Most people have at least one dis-tracting habit, such as frequent throat clear-ing, yawning, rolling the eyes, or sighing. Displaying a distracting habit while pa-tients are speaking may be interpreted in a number of negative ways, including bore-dom, impatience, or displeasure.

Communication behaviors that positively affect health outcomes

Empirical studies have linked these communication behaviors to favorable pa-tient health outcomes:

• expressing empathy; • making statements of reassurance and support; • encouraging the patient to ask questions; • spending more time taking the patient’s history; • offering more explanations; • positively reinforcing the patient’s actions; • using humor when appropriate (laughing and joking to relieve tension); • engaging in psychosocial talk (discussion of patient’s problems of daily

living, social relations, emotions);• spending more time educating the patient;• being friendly and courteous; • orienting the patient during the physical examination; and • summarizing and clarifying information at the patient’s level of

understanding. 51



Vocal cluesTone of voice plays a significant role

in how patients interpret what physicians communicate verbally, and is a vital clue to how patients are reacting to information. Consistently use a calm, confident, and re-spectful tone of voice with patients. Avoid sounding parental, sarcastic, or bullying, but do not sound hesitant or tentative. Listen for confusion, questioning, or impa-tience in a patient’s responses. Remember, tone of voice has been associated with mal-practice claim history in one study. 16 Both listening to a patient without interrupting and pausing when presenting information encourages patients to tell their full story and ask questions.

Use of time and physical spaceThe time allowed for an office visit is usu-

ally short, so it is critical to gather sufficient information, while not making the interac-tion seem rushed or incomplete. 4 A patient is more likely to feel relaxed when sitting. If both the patient and physician are stand-ing, the visit can feel rushed. If the physi-cian is standing and the patient is seated or lying down, the physician may seem intim-idating. When sitting behind a desk, place chairs for patients and family members to the side of the desk. How close a physician can comfortably sit or stand next to a pa-tient varies from culture to culture as does the amount of non-clinical touching. 50 In a recent study, the physical distance between the physician and patient and the amount of eye contact determined whether patients perceived that their physicians liked and accepted them. 50

Communicating in challenging situationsSituations develop where communicat-

ing with a patient is stressful and more dif-ficult than usual, such as when a patient is in a crisis or after an adverse outcome. De-veloping appropriate communication skills and behaviors will prepare you to effective-ly manage these situations and can help to reduce liability exposure.

Dealing with crisis Dealing with a patient in crisis, whether

they have received news of a terminal diag-nosis or have been involved in an accident,

is probably the most stressful situation phy-sicians encounter. Effective communication skills are essential in managing a crisis and helping patients avoid aggravating their health, deal with their emotions, and learn adaptive coping skills. 52 For patients re-ceiving bad news, it is important that their physicians take the time to answer all their questions, are honest about the severity of their condition, and give them their full at-tention. 53

The following steps can help physicians communicate with patients during a crisis.

Step 1. Learn about the patient as a per-son during the initial consultation: his or her fears about the diagnosis/injury and how he or she likes to receive information and make decisions.

Step 2. Establish an appropriate environ-ment (private, comfortable) for discussion, make sure that enough time is available to communicate information effectively, and allow anyone the patient requests to be present.

Step 3. Begin the consultation by estab-lishing what the patient (and family) knows about the patient’s condition. 54

Step 4. Determine how much informa-tion the patient wants about the disease and how he or she wants the information shared. More than 90% of patients prefer to know the truth about their illness, espe-cially if it is terminal. 54

Step 5. Deliver “information in a sensi-tive, but straightforward manner.” 54 Do not overstate or understate the prognosis. Pause frequently to check for understand-ing and to allow time for everyone to ab-sorb the information.

Step 6. Patients may need time to react to bad news. Respond to emotional reac-tions (such as anger, crying, or silence) when they are expressed.

Step 7. Offer comfort and support. Phy-sicians are one of the patient’s most impor-tant sources of psychological support. 54

Communicating after adverse outcomes Despite physicians’ best efforts, medi-

cal errors occur that result in adverse out-comes. The first response to such an event is deciding when and how to tell patients that an error occurred. Hospital accredita-tion standards require that patients be in-formed about “unanticipated outcomes” in their medical care. Patients and physicians essentially agree that patients should be told about errors that cause harm, but they disagree about what to disclose regarding such errors. 55

In one survey, patients unanimously wanted information about an error’s cause, consequences, and future prevention — not to attribute blame — but to understand what happened to them and to know that the institution and individuals involved had learned from the event. Many physi-cians, while wanting to be truthful, are more guarded about providing patients with this basic information. 55 By restricting what they disclose about errors, physicians can impair patients’ clinical decision mak-ing, diminish patient-physician trust, exac-erbate a distressed patient’s emotions, and increase the risk of litigation. 55

The second response to an error is offer-ing an apology, if one is warranted. A “true apology” includes disclosure and an expres-sion of regret. True apologies are warranted when a clear medical error has occurred. For example, if a surgeon removes the wrong kidney in a patient leaving the dis-eased kidney in place, the surgeon should promptly and appropriately communicate the error and apologize.

Barriers to disclosure and apology Physicians often resist acknowledging

errors or fail to apologize because they fear the consequences, such as an angry patient, a complaint to the Texas Medical Board, or a malpractice suit. 56 A recent article reported that the 10 most frequently cited factors that impeded offering an apology were: profes-sional repercussions, legal liability, blame, lack of confidentiality, negative patient/family reaction, humiliation, perfectionism, guilt, lack of anonymity, and absence of a supportive forum for disclosure. 57 Accord-ing to the lead author of the article, “doc-tors are frustrated with current reporting systems set up by hospitals because they


receive little or no feedback.” The desire to be straightforward with patients is the strongest positive motivation for reporting errors, yet, physicians feel that the culture of competition in medicine discourages re-porting mistakes.” 58

Guidelines for disclosure and apology It is essential that any patient who has

suffered an adverse outcome caused by a medical error receive appropriate expla-nations regarding the injury. However, an apology made before all the facts are known is premature and may be based on errone-ous assumptions. Because each patient’s situation is different, there are no perfect answers regarding when and how an apol-ogy should be made. The following guide-lines are intended to help physicians decide when and how to apologize.

• When the cause of an unanticipated outcome is not immediately apparent, quickly establish communication with the patient and family, unless the patient is emotionally unstable and not ready to lis-ten. 59 Do not offer an apology if any signifi-cant uncertainty remains about your culpa-bility or role in the situation.

• Discuss the patient’s current condi-tion and steps being taken to manage the adverse event, make a commitment to keep the family informed as additional informa-tion becomes available, and describe any new treatment plan being developed. 59 Tell the patient and/or family who to contact if they have additional questions.

• Explain that there will be an inves-tigation of the event and that it may take time. Be prepared to explain to patients why certain things involving the situation are unknown. A frequently cited reason patients consult lawyers is to obtain infor-mation that they did not receive from the physician. 17 Do not speculate or draw con-clusions about the cause of the event before the facts are known.

• During the investigation, keep all members of the patient’s health care team informed, so that the patient and family are not given wrong information or contradic-tory messages.

• If the investigation of the outcome clearly shows an error has occurred, then the physician involved should disclose that information and offer an apology. The apol-

ogy should be offered as soon as it is ascer-tained that a medical error has occurred. Do not shift blame to another person during this disclosure. 56

• The disclosure should include the fol-lowing: “an explicit statement that an error occurred; a basic description of what the error was in factual terms; why the error happened; how recurrences will be pre-vented; what reparations will be made; and an apology.” 55

• During the disclosure, encourage ques-tions and respond directly to them. Work to support patients’ emotions. 55

• Sincerity is extremely important in communicating with patients in these situ-ations. Tone of voice, word choice, and eye contact will help communicate your sincere feelings and emotions. Make sure that you really mean what you say or you may ap-pear nervous, uncomfortable, or dishon-est. Showing your human side can help strengthen the bond between you and the patient.

• The more serious the potential harm resulting from the error, the greater the need to consult your medical liability insurer. Simple mistakes that cause inconvenience or minor discomfort to the patient may be handled on your own. Events that lead to more significant injuries or economic loss to a patient clearly warrant a phone call to your insurer. If an attorney has been con-sulted to assist you in the matter, follow his or her advice. Collaborate with your hospi-tal risk manager when necessary.

• Document any discussions with pa-tients and/or families in the medical record. Keeping a concise account of what was said will help defend against allegations that you avoided the patient or tried to cover up the event if a lawsuit is filed.

Apologies can also be extended to pa-tients who have been offended during an encounter with physicians or medical staff. Common events that may cause offense in-clude excessive waiting times or scheduling difficulties. 56

Communicating with patients from dif-ferent cultures

Most physicians treat patients from di-verse cultures who may be of different eth-nic backgrounds and races, speak different languages, have different religious beliefs,

and have different levels of acculturation, education, and socioeconomic status. All these factors affect how patients under-stand the cause of their illnesses, how they relate to their physicians, and how they make medical decisions. 60 For example, pa-tients from some cultures may prefer that families make treatment decisions, and that family members — not patients — be told about terminal conditions.

Culture is defined as an integrated pat-tern of behavior that includes the actions, customs, beliefs, values, and institutions of a racial or ethnic group. Cultural dif-ferences between patients and physicians can lead to problems in communication and relationships. In turn, this can dimin-ish patient satisfaction, compliance with treatment regimens, health outcomes, and overall quality of care. 23, 60 Understand-ing of and sensitivity to patients’ cultural norms can assist physicians by improv-ing patient-physician communication and in addressing disparities in the quality of health care associated with race, ethnicity, and culture. 23 The American Medical Asso-ciation (AMA) and the Accreditation Coun-cil for Graduate Medical Education, among others, have stated that cross-cultural train-ing is necessary for the effective practice of medicine. 23

The Department of Health and Human Services has issued “National Standards on Culturally and Linguistically Appropriate Services” (CLAS). 61 The CLAS standards are primarily meant for health care orga-nizations, but physicians can use them to make their practices more culturally com-petent and linguistically accessible. To meet these standards, practices can do the fol-lowing.

• Provide patients with effective, un-derstandable, and respectful care that is compatible with their cultural health beliefs and practices and preferred language, if possible. • Provide staff with ongoing education and training in culturally and linguisti-cally appropriate care. • Provide resources for language assis-tance services, including bilingual staff and interpreter services, at no cost to LEP patients and assure the competence of this language assistance.



• Make available easily understood patient-related materials and post signs in the languages of the commonly en-countered groups in the service area.

There are three basic techniques physi-cians can use to become more culturally competent.

1. Elicit the patient’s explanatory model. Patients may be hesitant to reveal their

beliefs and fears, but this hesitation can of-ten be overcome through respectful ques-tioning and reassurance. Consider asking: “What do you think is causing your prob-lem or making it worse?” “How is it affect-ing your life?” “What can I do to help you with your problem?” “What is most impor-tant for you?” “Have you seen anyone else about this problem besides a physician?” 60

2. Determine the patient’s social context.The physiologic and emotional symp-

toms that characterize each patient’s dis-ease are closely tied to factors that make up his or her social environment. These fac-tors include socioeconomic status, migra-tion history, social networks, literacy, and religious affiliations. To obtain this type of information from patients, consider asking patients where they are from, if they have a social support system in place, or if finan-cial concerns may be an issue. 60

3. Negotiate across cultures.The information and insight gained from

exploring the patient’s explanatory model and social context can be used to facilitate the process of cross-cultural negotiation between physician, patient, and family to reach a mutually acceptable treatment plan. Cross-cultural negotiation involves the fol-lowing.

• Negotiate the explanatory model — acknowledge the differences in belief sys-tems. Determine how the patient’s explana-tory model differs from the medical model and how strongly the patient adheres to it. Describe the medical explanatory model in understandable terms, using the patient’s terminology and conceptualizations, and determine the patient’s degree of under-standing and acceptance of the medical model. 59

• Negotiate management options — de-scribe specific management options in cul-turally understandable terms. Determine the patient’s priorities, present a reason-able management plan, and determine the patient’s level of acceptance of this plan. 60

There are numerous programs available that provide training in cultural competen-cy and resources online including: Diversi-ty Rx, available at http://www.diversityrx.org; the Office of Minority Affairs, available at http://www.hrsa.gov/OMH; and the National Hispanic Medical Association, available at http://www.nhmamd.org.

Communicating with non-English speaking patients

Physicians have a legal obligation to provide linguistically appropriate care under Title VI of the Civil Rights Act of 1964. 62 This law applies to any physician who treats Medicaid or Medicare patients, as well as hospitals that receive federal funds. Several Medicaid provisions require Med-icaid agencies and providers to eliminate language barriers. The Hill-Burton Act requires hospitals to address the needs of non-English-speaking patients. Physicians are also required to communicate with their patients and obtain informed consent. 62

Providing foreign language or Ameri-can Sign Language interpreter services is an obvious and common way to improve communication with patients who speak different languages or who do not voice. In-terpretation services include on-site profes-sional interpreters; ad hoc interpreters (e.g., untrained bilingual staff, family members, friends); and simultaneous remote interpre-tations by off-site professional interpreters using earphones and microphones. 22

Recent studies have shown that ad hoc interpreters are much more likely than pro-fessional interpreters to commit errors that have adverse clinical consequences. Ad hoc interpreters are unlikely to have had train-ing in medical terminology and confidenti-ality. Their priorities may conflict with those of patients and their presence may inhibit discussions about sensitive issues, such as domestic violence. 20 It is especially prob-lematic to use children as interpreters, since they are unlikely to have a full command of

both languages, and frequently make errors that have clinical consequences. 20

Since the physician is ultimately respon-sible for communication with patients, the best option is to use trained medical inter-preters — either on site or by phone — who are skilled in cultural sensitivity and medi-cal and colloquial terminology. It should be noted that patients may prefer to use friends or family members, and this preference should be respected. 62 Using an interpreter may help build a closer physician-patient relationship by facilitating patient educa-tion about unfamiliar diagnostic techniques and increasing understanding about disease processes and treatment options. Interpret-ers also allow physicians and patients to communicate more clearly and can lead to more appropriate testing and screening. 22 The presence of a language barrier is associ-ated with higher rates of diagnostic testing that may be due to physicians’ attempts to compensate for difficulties in communica-tion. More accurate medical histories and clearer descriptions of symptoms can result from using an interpreter. 20 In addition, interpreters can help physicians discover if patients are taking home/folk remedies, thus helping to avoid dangerous interac-tions and informing the physician of folk beliefs that can affect compliance. 22

Communicating in the electronic agePhysicians need to convey a great deal

of information to patients, usually during short, infrequent office visits. One way physicians have enhanced their interac-tions with patients and freed up time dur-ing personal encounters to share this infor-mation is by using e-mail to communicate with patients.

In two surveys of family practice pa-tients, 68% of patients used e-mail, 80% of those patients were interested in using it to communicate with the clinic, and 42% were willing to pay a small fee to have e-mail ac-cess to their physicians. 63 A recent Harris poll of adult Internet users indicated that 90% wanted e-mail access to their physi-cians 1 and that a substantial number would actually choose their physician based on whether he or she used e-mail to communi-cate with patients. 64



Patients like e-mail because they can send messages at their convenience, avoid phone tag with staff, carefully review their physi-cians’ messages at their convenience, and have a written record to help them remem-ber critical information. 64

E-mail is most commonly used by physi-cians for routine administrative tasks, such as reminding patients about appointments. Types of communication that are appropri-ate for e-mail include:

• scheduling inquiries;• non-urgent medical advice;• billing or insurance questions;• test and lab results;• home health monitoring reports;• prescription refill requests (per practice

policy); and • educational materials. 65

Studies of e-mail between physicians and patients in primary care settings show that the additional work in establishing in-formed consent, maintaining e-mail, and educating office staff to use e-mail appro-priately may be “worth the effort.” 63 E-mail can help lessen the administrative burden, especially when treating long-time patients who have a variety of medical problems. 64

When setting up electronic physician-patient communication, practical, legal, and ethical considerations must be taken into account to ensure that e-mail mes-sages are managed efficiently and staff are compliant with privacy regulations. The AMA has issued guidelines to assist physi-cians in communicating electronically with patients. These guidelines are available at http://www.ama-assn.org/ama/pub/cat-egory/2386.html. The TMLT risk manage-ment department can also provide phy-sicians with a sample e-mail policy and a sample e-mail consent form.

Physician-patient e-mail is one of the most rapidly evolving areas of legal-medi-cal concern. Medical offices using e-mail to communicate with patients must stay in-formed about legal requirements and deci-sions. 64 Physicians should make decisions regarding the use of e-mail judiciously, and evaluate the positive and negative aspects before proceeding.

When setting up e-mail communication with patients, it is recommended that phy-sicians establish the following protocols:

• Determine the type of transactions that will occur via e-mail.• Set limits for the use of e-mail with patients (i.e., not for urgent concerns, abnormal or confusing test results, bad news, new diagnoses requiring complex discussion).• Establish a response time for messages.• Communicate e-mail policies and procedures to patients who want to use e-mail.• Remind patients when they do not comply with the practice’s e-mail guidelines. Terminate the use of e-mail with patients who repeatedly fail to comply with the guidelines.• Discuss privacy issues with patients. Make sure patients understand that e-mail may not always be private on the receiving end (such as when families have access to each other’s email or when employers have access to their employees’ email). Obtain patient’s consent to this in writing. • Instruct each patient in writing to do the following:

• put the type of inquiry in the subject line of the message (e.g., ap-pointment);• put their name and birth date (or other identification number) in the body of the message;• use the auto-reply feature to ac-knowledge that the patient read the message; and• make messages concise. 64, 66, 67

Web sitesThe Internet has dramatically influenced

how and where patients obtain health in-formation. In a 2003 survey, 64% of adults who went online sought health information at least once in the previous 12 months. 68 A recent literature review determined that the majority of health-related Internet searches by patients are related to specific medical conditions. 69 These searches are conducted before an office visit to obtain information to self-manage their health care or to de-cide whether they need professional help. They are also conducted after the medical encounter for reassurance about their diag-nosis or treatment or because they are dis-satisfied with the information provided by their physician. 69

However, physicians understandably have a number of concerns about patients obtaining online medical information. These include whether access to this information will improve patients’ health, whether pa-tients will be able to access relevant infor-mation easily, the reliability of the informa-tion, and how the information will affect the physician-patient relationship and the use of medical resources. 70

In a large, population-based survey, 75% of people who searched the Internet found health information that was relevant and 81% found the information easily, perceived the information to be of high quality, and were overwhelmingly positive about their experience.70 The majority also believed that the information they found:

• made them more confident in talking to their physicians;• improved their understanding of their condition;• encouraged them to follow their phy-sicians’ advice; and • having access to such information challenged physicians to be more up-to-date with treatments. 70

In addition, about 74% said that the use of online medical information had been beneficial to their decision-making ability; 62% said it had improved communication with their physician; and 71% who took the information to their physician stated that they wanted the physician’s opinion about the information, rather than wanting some-thing specific, such as a test, medication, or a referral. Thirty percent of patients who brought this information to physicians said their relationship with the physician had improved. 70

Current data does not support the con-cern that seeking health information on-line causes patients to request inappropri-ate care. Most patients appear to accept a physician’s judgment about inappropriate requests. However, data does suggest that discussing online health information may significantly affect physicians’ time. 70 On some web sites, patients are finding lists of questions to ask their physicians. For exam-ple, the American Heart Association’s web site has a list of more than 150 questions that patients should ask their physicians about heart disease. 71 It may be necessary



to schedule additional appointments for pa-tients who want to discuss online health in-formation. Physicians who collaborate with patients — by guiding them to reliable and accurate health web sites and helping them analyze the information they find — will re-main trusted sources of information. 69

ConclusionObviously physicians cannot conduct

clinical interviews with patients without communicating with them. However, more effective communication can help physi-cians build an empathic partnership with patients, exchange information to deter-mine the nature of the problem, and reach a mutually agreed upon treatment plan.

Extensive research on physician-patient communication has shown that physicians who provide more information on the di-agnosis and treatment options, share con-trol during the medical encounter, and are responsive to patients’ emotional state can improve patient satisfaction, compliance, and ultimately physical and mental health outcomes. Using more nonverbal commu-nication — such as smiling and maintain-ing eye contact — has been correlated with increased patient satisfaction and physical and cognitive functioning.

Several studies have clearly demonstrat-ed that how and what a physician commu-nicates has a significant effect on whether a patient decides to initiate a malpractice suit following an adverse event. Patients and families who feel dissatisfied because their physicians would not listen or talk openly or did not warn them about long-term side effects associated with their treatment are more likely to sue. Physicians who have a “negative” manner (e.g., use a harsh or im-patient tone of voice) may encourage more thoughts of litigation after an adverse out-come, whereas a physician with a “positive” manner may not. Physicians who educate patients about what to expect from the visit and how it will proceed, laugh and use hu-mor more, solicit patients’ opinions, check for patient understanding, and encourage patients to talk are less likely to have claims filed against them than physicians who do not use these communication behaviors.

The first step in improving communica-tion is evaluating how you are communi-cating with your patients. Ask yourself:

• Do I greet a patient warmly and en-gage in some social exchanges or is my facial expression serious and I get right down to business? • Do I make eye contact quickly and maintain it throughout the interview or do I look away and consult my chart fre-quently?• Do I know anything about my patient’s personal life?• Do I encourage patients to express all the reasons for their visits, expectations of me, and concerns and fears or do I interrupt after the patient has expressed an initial concern?• Do I listen for verbal and nonverbal expressions of emotion and respond promptly to them or do I quickly change the subject back to medical questioning? • Do I ask more closed-ended questions than open-ended ones? • Do I encourage patients to ask ques-tions? • Do I observe the patient’s body lan-guage and nonverbal communication during the interview?• Is my nonverbal communication con-sistent with my verbal communication? • Do I provide enough information for the patient to understand his or her dis-ease, diagnosis, treatment options and to participate in treatment decisions? Do I present this information in a man-ner consistent with the patient’s level of health literacy?• Do I present treatment options, if ap-propriate, or just make a treatment rec-ommendation?• Do I close the visit by summarizing clinical findings, diagnosis, plan of ac-tion and follow-up instructions? Do I as-sess the patient’s understanding of my recommendations?

Answering these questions candidly and making a genuine commitment to improve the quality of physician-patient communi-cation may lay the foundation for increased patient satisfaction and decreased exposure to claims.

Peggy Seeger can be reached at [email protected].

Closed claim study — alleged failure to recognize prescription drug abuse

by Laura Brockway and Barbara Rose

This closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust. This case illustrates how action or inac-tion on the part of physicians led to allegations of professional liability, and how risk manage-ment techniques may have either prevented the outcome or increased the physicians’ defensibil-ity. The ultimate goal in presenting this case is to help physicians practice safe medicine. An at-tempt has been made to make the material more difficult to identify. If you recognize your own claim, please be assured it is presented solely to emphasize the issues of the case.

In the following closed claim study, the allegations were related to failure to recog-nize prescription drug abuse by a patient. While these allegations did not specifically include “failure to communicate with the patient,” communication issues occurred throughout this claim. As you read this claim study, keep in mind one of the objectives of this article — “explain how to conduct an effective clinical interview based on build-ing a partnership with patients, exchanging information, and sharing decision making.” Presentation

A 35-year-old woman came to a family practice clinic on July 31 with complaints of right arm and finger numbness and neck pain. She had a history of lumbar surgery six years ago and lumbar fusion five years ago. The patient also reported that she was seeing a psychiatrist for anxiety, depres-sion, and mood swings. She was currently taking Paxil 40 mg and Thorazine 150 mg. The patient stated that her neck felt like her back did before the fusion.

Physician actionA physician’s assistant (PA) examined

the patient and found that she was tender on palpation of the cervical vertebrae and shoulder with a tight trapezius muscle. She was noted to have decreased range of mo-tion of the neck and decreased right arm strength. The initial assessment was neck pain, shoulder pain, neuropathy, and mus-cle weakness to the right arm. She was pre-



scribed a Medrol dose pack, Darvocet for pain, and Soma for muscle spasms. The office scheduled an MRI of the cervical spine on August 5.

On August 1, the patient called the of-fice complaining of pain. Another PA, with the approval of the supervising physician, called in a prescription for Lortab 10/500 #20 for the patient. The patient did not keep her appointment for the MRI that was scheduled on August 5. On August 6, the patient was prescribed Phenergan, Soma, and Lortab, but Family Physician A denied the request for Darvocet. The patient again called and obtained refills for Phenergan, Soma, and Lortab on August 9.

On August 12, the patient called for re-fills — Lortab, Soma, Restoril, and Paxil were prescribed with the understanding that no more prescriptions would be pre-scribed until her MRI was completed. Of-fice staff then contacted the patient’s psy-chiatrist to determine what medication he was prescribing for the patient. The psy-chiatrist would not respond to their call or fill out the medication form that was sent. The psychiatrist noted that the patient had signed a form that would not allow him to release any information about her care and treatment.

The patient failed to show for the MRI that was scheduled for August 19. When she called on August 23 seeking a refill for Soma, Family Physician B denied the re-quest because the patient had not obtained the MRI.

On August 23, the MRI scan of the cer-vical spine showed a large right parame-dian disc protrusion at C6-7 with a mild impression on the anterolateral aspect of the spinal cord. There was also a large para-median disc protrusion at C5-6 producing mild neuroforamenal stenosis and impress-ing upon the right anterolateral aspect of the cord. The MRI results showed changes that would explain the patient’s pain. On August 26, Family Physician B called the pharmacy to approve another 5-day supply of Phenergan, Lortab, and Soma.

The patient called the office on August 28 stating that her pain medications were not strong enough. Family Physician B re-quested that she return to the clinic for a follow-up visit. The patient came that day and complained of neck pain and numb-

ness in the right arm. Family Physician B performed a complete physical exam. He noted that her right arm was weaker than her left, and the right trapezius muscle was tender to palpation. The patient mentioned that Darvocet had not helped her in the past; but Oxycontin had provided relief. The physician diagnosed cervical disc disease, hypertension, and fatigue. He prescribed 40 mg of Oxycontin to be taken twice daily; one Soma every six to eight hours; and for her to keep a log of her blood pressure. Ad-ditionally, he noted that he would schedule an appointment with the neurosurgeon for September 26. He ordered a follow-up visit in two to three weeks for blood pressure.

At this visit, Family Physician B specifi-cally remembered telling the patient not to take other medication when she took Oxy-contin. He also remembered telling her to begin by taking only one pill per day though he wrote the prescription for two pills per day. He recalled providing specific patient education about the risks of Oxycontin.

On September 1, the patient called the clinic complaining of pain. The prescrip-tion for Darvocet was refilled to treat the patient’s breakthrough pain. The patient’s psychiatrist prescribed a 30-day supply of Restoril to the patient on September 2.

The following day, the patient’s hus-band found his wife in the garage passed out and covered in urine. He explained that since he found her at 2 a.m., he thought her condition was a side effect of drowsiness. Neither the patient nor her husband noti-fied any medical providers of this incident.

On September 5, the patient was found dead by her minor children on their return home from school. The medical examiner found that the cause of death was an acci-dental mixed-drug overdose from Oxycon-tin and Darvocet. The pathologist stated that he believed the patient consumed Oxycontin and Darvocet well in excess of the instructions in the prescription, and that this was not a case of accidentally taking an extra pill or two. He did not believe it was a suicide because the patient did not con-sume all the pills from the bottle or leave a note. The cause of death was also not a homicide or natural, so he was left with ac-cident as the only choice when completing the death certificate. Based on the toxicol-ogy results, the patient took at least 8 to 10

Oxycontin and at least 6 to 8 Darvocet on the morning of her death.

AllegationsLawsuits were filed against Family

Physician A, Family Physician B, and their practice. The plaintiffs alleged that the phy-sicians failed to realize that the patient was a drug abuser and should have taken steps to place the patient under long-term pain management care.

Lawsuits were also filed against the psychiatrist, the pharmacy and pharmacist who filled the patient’s prescriptions, and the physician’s assistant at the family prac-tice clinic.

Legal implicationsDefense experts fully supported the ac-

tions of the family physicians in this case. The patient suffered from physiologic pain brought on by injuries to her cervical and lumbar nerves and her spinal cord. When faced with a patient with clear-cut MRI evidence of a lesion that is capable of caus-ing severe pain, it was appropriate for the family physicians to rely on what the pa-tient said would relieve her pain. The pa-tient required strong pain medication, such as Oxycontin, because other medications failed to relieve her pain. The physicians made a good faith effort to treat the patient and did meet the standard of care in trying to manage a difficult situation.

Regarding causation, the defense argued that the patient took a huge dose of medica-tion, well in excess of that prescribed by the defendants. If she had taken the drugs as prescribed, she would not have died.

During the investigation of this case, it was discovered that the patient had a histo-ry of prescription drug misuse dating back more than five years. Her medical records clearly showed that she would manipulate physicians into giving her pain medication and when they finally refused, she would go to another physician. About one month before the patient came to the defendants’ clinic, she was dismissed by a neurosurgeon for lying about medications and abusing her medications. Unfortunately, the family physician defendants did not know about the patient’s history because she purpose-fully failed to disclose her previous three treating physicians. She also told her psy-



chiatrist that he could not disclose anything to other medical professionals.

The plaintiffs retained an expert in pain management who supported their allega-tions. He argued that the family physician defendants should have diagnosed the pa-tient as an addict and initiated an involun-tary commitment. However, he could not explain why involuntary commitment was warranted or point to any evidence that the family physicians should have been aware of her addiction. This expert also stated that the results from the MRI mandated an emergency referral to a neurosurgeon. Defense counsel pointed out that the radi-ologist who read the study did not describe her condition as an emergency or note spi-nal cord involvement.

The plaintiff’s pharmacology expert testified that his primary concern was not with the prescriptions that were given, but with the number of pills that patient was al-lowed to receive. He stated that she should not have been permitted to obtain a 30-day supply of Oxycontin. This expert agreed that the patient’s early refill requests could easily be explained by “misuse” of the med-ication and not “abuse.” He conceded that the family physicians appropriately used the “carrot and stick” approach by deny-ing the patient refills when she did not ob-tain the MRI and making sure refills were on time and not early. Further, he agreed that the patient’s conduct was noncompli-ant, unreasonable, and a component that caused her death.

Another weakness in the plaintiff’s case involved the actions of the patient’s hus-band (a plaintiff in the case) when he found the patient passed out in the garage. He did not take her to the emergency department or notify any of her treating physicians. The plaintiff’s own expert described this as negligence on the part of the husband and agreed that health care professionals would likely have intervened had this episode been brought to their attention.

DispositionAt the conclusion of the plaintiff’s pre-

sentation of evidence during the trial, the defense attorney made a motion for direct-ed verdict. The judge granted the motion, concluding that the plaintiffs did not meet their burden of proof that malpractice oc-

curred in this case. (A directed verdict is an order from the judge that one side or the other wins the case. After a directed verdict, there is no longer any need for the jury to decide the case. Motions for a directed ver-dict are rarely granted as judges tend to let the jury make the decision on whether or not the standard of care was violated.)

At the end of trial, defense counsel inter-viewed jury members. Those interviewed indicated that they felt the patient’s death was an unpredictable suicide and was not due to any fault of the defendants.

Risk management considerationsDocumentation was a weakness in this

case. There was no mention in the medical records that the patient was warned not to mix Oxycontin with other substances nor were there notations for her to stop pre-viously prescribed medications. Family Physician B testified that he remembered appropriately educating the patient about the dangers of Oxycontin, but he did not document this education in the medical re-cord. Two expert reviewers also noted that though the patient had a clear history of depression, there was no documentation by Family Physician A about her depression history or whether she was at risk for inten-tional overdose. Thorough documentation would have greatly benefited the physi-cians in this case.

When viewed retrospectively, the pa-tient’s actions — requesting early refills, delaying the MRI, requesting stronger pain medication, asking for a specific pain medi-cation — could be viewed as “red flags” for drug misuse or abuse. Conversely, these actions could also be justified because the patient had significant pain, according to objective, diagnostic evidence. The defen-dants appropriately provided the patient with pain medication to support her until she could see a neurosurgeon. Physicians in similar situations can have patients sign a contract consenting to the pain manage-ment therapy as directed by the physician. The agreement is intended to protect the patient’s access to appropriate controlled substances and to protect the physician’s ability to prescribe for the patient in pain.

The relevance of this claim to this article can be found within several of the objec-tives and the description of effective phy-

sician-patient communication. The patient reported her mental health status, including medications prescribed by a psychiatrist. Had the physicians’ clinical interview skills been based on building a partnership, ex-changing information, and shared decision making, this patient’s fragile status may have been recognized. Active listening, try-ing to get to the patient’s perspective, fo-cusing on her emotions with empathy may have identified the need to intervene more assertively in the management of her pain. This type of conjecture after the outcome provides an opportunity to reflect on one’s communication skills and identify areas for improvement.

Laura Brockway can be reached at laura-brock [email protected]. Barbara Rose can be reached at [email protected].

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et al. Decision aids for people facing health treatment or screening decisions. Cochrane Database Syst Rev. 2003; 2:CD001431.46. Barry MJ. Involving patients in medical decisions. How can physicians do better? JAMA. 1999;282:2356-2357.47. Murray E, Burns J, See TS, Lai R, Naza-reth I. Interactive Health Communication Applications for people with chronic dis-ease. Cochrane Database Syst Rev. 2005;4:CD004274.48. Wantland DJ , Portillo CJ, Holzemer WL, Slaughter R, McGhee EM. The effectiveness of web-based vs. non-web-based interven-tions: a meta-analysis of behavioral change outcomes. J Med Internet Res. 2004; 6: e40. Published online 2004 November 10. doi: 10.2196/jmir.6.4.e40.http://www.pubmedcentral.nih.gov/arti-clerender.fcgi?tool=pubmed&pubmedid=15631964. Accessed March 3, 2007.49. Epstein RM, Alper Bs, Quill TE. Com-municating evidence for participatory deci-sion making. JAMA.2004;291:2359-2366. 50. Roter DL. How effective is your non-verbal communication. Web-book: Chapter 2. Available at: http://www.coversation-sincare.com/web_book/printerfriendly/chapter1pf.html. Accessed April 27, 2007.51. Beck RS, Daughtridge R, Sloane PD. Physician-patient communication in the primary care office: a systematic review. J Am Board Fam Pract. 2002;15:25-38.52. Radziewicz, RM. Communication in Crisis. Web Book: Chapt 3. http://www.conversationsincare.com/web_book/printerfriendly/chapter3pf.html. Accessed April 27, 2007.53. Baile WF. The importance of physician:patient communication. Web-book: Chapter 1. Available at: http://www.coversation-sincare.com/web_book/printerfriendly/chapter1pf.html. Accessed April 27, 2007 54. von Gunten CF, Ferris FD, Emanuel LL. Ensuring competency in end-of-life care: Communication and relational skills. JAMA. 2000;284:3051-3057. 55. Gallagher TH, Waterman AD, Ebers EG , Fraser VJ; Levinson W. Patients’ and physi-cians’ attitudes regarding the disclosure of medical errors. JAMA. 2003;289:1001-1007. 56. Lazare A. Apology in medical prac-tice: an emerging clinical skill. JAMA. 2006;296:1401-1404. 57. Kaldjian LC, Jones EW, Rosenthal GE,

Tripp-Reimer T, Hillis SL. An empirically derived taxonomy of factors affecting phy-sicians’ willingness to disclose medical er-rors. J Gen Intern Med. 2006;21:942-948.58. Virgo Publishing. Studies examine dis-closure of medical errors. Infection Control Today. August 3, 2006. Available at infec-tioncontroltoday.com. Accessed November 12, 2007. 59. Roman KM. Not so fast with I’m sorry. Medical Liability Monitor. Issues at Risk. 2005;30:8-9. 60. Carrillo, JE, Green AR; Betancourt JR. Cross-cultural primary care: a patient-based approach. Ann Intern Med. 1999;130:829-834.61. Office of Minority Health (OMH). US Department of Health and Human Servic-es. National Standards on Culturally and Linguistically Appropriate Services (CLAS) National Standards on Culturally and Lin-guistically Appropriate Services (CLAS) Available at http://www.omhrc.gov/tem-plates/search.aspx?SearchQuery=CLAS&Search=Search. Accessed April 12, 2007.62. Romero CM. Curbside consultation. Case scenario: Using medical interpret-ers. Am Fam Phys. June 1, 2004. Available at http://www.aafp.org/afp/20040601/curbside.html. Accessed April 17, 2007.63. Virji A, Yarnall KS, Krause KM, Pollak KI, et al. Use of email in a family practice setting: opportunities and challenges in pa-tient- and physician-initiated communica-tion. BMC Med. 2006;154:158.64. Biermann Sybil, Golladay GJ, Peterson RN. Using the Internet to enhance physi-cian-patient communication. J Am Acad Or-thoped Surg. 2006;14:136-144.65. Texas Medical Liability Trust. Patient guidelines and consent for use of e-mail communications. 2007.66. American Medical Association. Guide-lines for physician-patient electronic com-munications. Available at http://www.ama-assn .org/ama/pub/category/print/2386.html. Accessed April 27, 2007.67. Goodyear F, Wearn A, Everts H, Hug-gard P, Halliwell J. Pandora’s electronic box: GPs reflect upon e-mail communica-tion with their patients. Informatics in Pri-mary Care. 2005;13:195-202.68. Hesse BW, Nelson DE, et al. Trust and sources of health information: the impact of the Internet and its implications for health

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Pre-sorted StandardU.S. Postage

PAIDPermit No. 90 Austin, Texas

Reporterthe

P.O. Box 160140 Austin, TX 78716-0140 800-580-8658 or 512-425-5800 E-mail: [email protected] www.tmlt.org

Editorial committeeBob Fields, President and CEOJill McLain, Senior Vice President, Claim OperationsDon Chow, Senior Vice President, MarketingJane Holeman, Vice President, Risk ManagementDana Leidig, Vice President, Communications & Advertising

Editor Laura Brockway, ELS

Contributing EditorBarbara Rose

Staff William Malamon

the Reporter is published by Texas Medical Liability Trust as an information and educational service to TMLT policy-holders. The information and opinions in this publication should not be used or referred to as primary legal sources or construed as establishing medical standards of care for the purposes of litigation, including expert testimony. The standard of care is dependent upon the particular facts and circumstances of each individual case and no generaliza-tions can be made that would apply to all cases. The information presented should be used as a resource, selected and adapted with the advice of your attorney. It is distributed with the understanding that neither Texas Medical Liability Trust nor Texas Medical Insurance Company are engaged in rendering legal services. © 2007 TMLT.

TEXAS MEDICAL LIABILITY TRUST


TMLT policies covering individual physicians include a Medefense Endorsement, which provides legal expense re-imbursement to a physician who is subject to a disciplinary proceeding. Covered disciplinary proceedings include:

• actions by the Texas Medical Board alleging unprofes-sional conduct; • a hospital action regarding clinical privileges;• actions by the Texas Department of State Health Services or the U.S. Department of Health and Human Services;• proceedings alleging fraud or noncompliance with Medicare or Medicaid regulations; and• individual federal tax audits.

Medefense will reimburse the physician up to $25,000 each claim/each policy period. Medefense claims are sub-ject to a $1,000 deductible, with a 10% coinsurance provi-sion (the physician will pay 10% of the legal expenses after application of the deductible). The coverage for tax audits is limited to a $5,000 maximum reimbursement.

To take advantage of Medefense coverage, policyholders should:

1. Notify TMLT as soon as you receive the initial letter from the TMB or other disciplinary authority. The policy states that a policyholder has 60 days to report an event or letter in order to receive reimbursement for covered expenses.

2. Consider retaining an attorney to help draft a narra-tive and to respond to the disciplinary authority. Upon request, TMLT can provide policyholders with a list of attorneys who have experience handling disciplinary proceedings.

To learn more about Medefense, please contact John Southrey at 800-580-8658 or (512) 425-5800.

TMLT policies provide coverage for TMB, other disciplinary actions

Documents

November-December 2007 Reporter - TMLT: Medical Liability Coverage