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Why patients sue... and how to try and avoid it

Dr Mark Dinwoodie, Head of Member Education at MPS, offers some advice on avoiding litigation

Any doctor who has received a letter of claim from a solicitor alleging negligent care will know that sinking feeling.

The protracted and challenging process of responding to a litigation claim can make it a distressing experience. The paradox is that, in general, outcomes from healthcare in Ireland have never been better, and yet doctors have never been more likely to receive a complaint, claim or be referred to the Medical Council. While there are factors and influences beyond our control, it is perhaps timely to consider this issue and what we as individuals can do to reduce our risk of being sued.

Understanding why patients sue their doctor is an important first step. I suspect that many of us left medical school with a traditional view of the causation of litigation, namely that if we treated a patient, for whom we were responsible, outside acceptable standards of care and as a consequence they came to harm, then we might be sued. A number of studies undertaken over the last 25 years, starting with the seminal Harvard Medical Practice Study published in 1991,1 suggest that the aetiology may be a little more complex.

Interactional skills and litigation

Analysis of claims tends to revolve around the precipitating clinical factors, such as a delay in diagnosis, incorrect surgical technique or medication error. However, the risk of complaint and litigation appears to have much more to do with predisposing factors such as our communication skills, sensitivity to patient needs and management of expectations, than the complexity of the patient’s condition, patient characteristics or technical and clinical skills.2-6

Perhaps not surprisingly, negative communication behaviour increases litigious intent.7,8 A number of claims are instigated even though there is no evidence of medical negligence,6 suggesting other drivers make patients take action.

Research findings suggest that precipitating factors alone in the absence of predisposing factors are unlikely to lead to a claim.5,9 So for two doctors who have been involved in identical adverse outcomes, their individual risk of litigation will be strongly influenced by the relative quality of their interactions with the patient.

Patient expectations and disappointment

Patients embark on any sort of healthcare episode with expectations such as wanting reassurance, the amount of pain they will experience or what ‘success’ will look like. Patients also have increasing expectations about the quality of the interaction they will experience. We often don’t ask patients what their expectations are and instead make assumptions. It is important to think about why the patient has come to see us and what they are hoping for, and not just what is wrong with the patient and what we need to do to fix it.

If the patient has an experience that is very different from what they are expecting, these unmet expectations lead to a disappointment gap (Box 2) which can be a powerful ‘predisposing factor’ in a decision to take some sort of action. The patient’s perception of the outcome or experience may be very different from ours or even reality, but it is the patient’s perception that matters in terms of dissatisfaction. In commercial terms this is equivalent to “over-promising and under-delivering”.

We are more likely to meet a patient’s realistic expectations and avoid disappointment if we know what they are, and hence the importance of asking
Some patients will have unrealistic expectations as to what we can achieve and these should be sensitively corrected in advance rather than retrospectively saying: “It was unrealistic to expect that.” We are more likely to meet a patient’s realistic expectations and avoid disappointment if we know what they are, and hence the importance of asking. Any patient disappointment following an episode of healthcare can turn to anger, which can then lead to blame and then possibly a claim. There is a strong relationship between patient dissatisfaction and subsequent complaint or claim.2,10

Communication with colleagues

Poor inter-professional communication and teamworking is associated with patient harm.11,12 In one study, around 50% of litigation was initiated following comments made by another healthcare professional.Poor communication with patients by our staff can act as a predisposing factor for litigation against us.

Consent and shared decision-making

If a patient has an adverse outcome from their treatment they may question the validity of the consent process. Many patients want to be involved in decisions that affect them, offered choices and warned of risks and benefits of any treatment, including the risk of doing nothing.5 A decision that doesn’t reflect the preferences, values and expectations of a patient may leave them disappointed.

After an adverse outcome

Contrary to popular belief, obtaining compensation is reported by patients as being their primary goal in only around 20% of litigation claims.5,13,14 Other outcomes desired by patients following an adverse outcome are shown in Box 3. Attention to the first five reduces the desire for compensation.

Reducing the risk of being sued

In contemporary medical practice, patients are seeking not only technical competence but also interactional competence. In fact, patients will often use the quality of the interaction as a proxy marker for the quality of care. Effective communication will build trust, increase patient satisfaction, and help ensure that patients receive the care that they both want and need. Patients want to know that you care.5

1. High quality and safe care, professionally delivered

A commitment to safety and quality is a good starting point. Providing high quality care as an individual and ensuring that the systems within the organisation in which you work are reliable, effective and safe will help reduce the likelihood of a precipitating adverse event. Reducing errors and harm is entirely appropriate, but on its own may not significantly impact on rates of litigation without also addressing any predisposing factors highlighted above. Important issues such as clinical governance and risk management are beyond the scope of this article.

2. High quality interactional skills with every patient every time

  • Patient-centred consulting through active listening and empathy. Establishing patient ideas and concerns will show that you care for and respect your patient.
  • Building trust. Every time you interact with a patient you have the opportunity to build rapport, show compassion and develop trust.
  • Establishing and managing patient expectations.
  • Checking patient understanding.
  • Appropriate non-verbal communication.
Ensuring that the systems within the organisation in which you work are reliable, effective and safe will help reduce the likelihood of a precipitating adverse event

3. A rigorous consent and shared decision-making process, reflecting patient preferences and values

4. Effective handling of an adverse outcome and patient disappointment

Undertake open and honest discussions with patients following adverse outcomes, showing compassion and concern. The HSE and SCA published Open Disclosure National Guidelines in November 2013.15 Evidence suggests that effective handling of adverse outcomes, whether we are responsible or not, may reduce the risk of litigation.16

5. Effective communication with colleagues 

  • Use of standardised and reliable techniques for clinical communication with colleagues.
  • Avoid passing comment about the qualfity of care provided by a colleague.
  • A good working relationship with colleagues is likely to lead to support for the patient and ourselves, should an adverse outcome occur.
  • Model the communication skills you wish your staff to adopt.

6. Keep good documentation

So that you are able to respond effectively to any challenge to your professional practice, as well as contribute to clinical care.

Summary

By making healthcare safer while paying attention to the quality of our interactional skills, we have the opportunity to reduce the risk of distress to patients, and complaints and claims for doctors.

References
  1. Brennan T et al, Incidence of adverse events and negligence in hospitalized patients, NEJM 324(6):370–376 (1991)
  2. Cydulka R et al, Association of Patient Satisfaction with Complaints and Risk Management among Emergency Physicians, J Emerg Med, In Press, Corrected Proof (2011)
  3. Reid R et al, Associations Between Physician Characteristics and Quality of Care, Arch Intern Med 170(16):1442–1449 (2010)
  4. Beckman, HB, Markakis KM, Suchman, AL & Frankel, RM ‘The doctor-patient relationship and malpractice: Lessons from plaintiff epositions’. Arch Int Med154:1365-1370 (1994)
  5. Stephen F et al, A Study of Medical Negligence Claiming in Scotland, Scottish Government (2012)
  6. Studdert D et al, Claims, errors, and compensation payments in medical malpractice litigation, NEJM 354(19):2024–2033 (2006)
  7. White AA, Pichert JW et al, Cause and Effect Analysis of Closed Claims in Obstetrics and Gynecology, Obstet Gynecol 105:1031-8 (2005)
  8. Moore PJ, Adler NE et al, Medical Malpractice: The effect of Doctor-Patient relations on medical perceptions and malpractice intentions, West J Med173(4):244-250 (2000)
  9. Bunting R et al, Practical Risk Management for Physicians, J Healthc Risk Manag 18(4):29-53 (1998)
  10. Fullam F et al, The Use of Patient Satisfaction Surveys and Alternative Coding Procedures to Predict Malpractice Risk, Med Care 47(5):553–559 (2009)
  11. Mazzocco K, Surgical team behaviours and patient outcomes, The American J Surgery 197:678-685 (2009) 
  12. Leonard M et al, The human factor: the critical importance of effective teamwork and communication in providing safe care, Qual Saf Health Care 13:85-90 (2004)
  13. Vincent C et al, Why do people sue doctors? A study of patients and relatives taking legal action, The Lancet 343(8913):1609–1613 (1994)
  14. Friele R & Sluijs E, Patient expectations of fair complaint handling in hospitals: empirical data, BMC Health Serv Res 6:106 (2006)
  15. Health Service Executive and State Claims Agency, Open Disclosure National Guidelines (2013)
  16. Rodriguez H et al, Relation of patients’ experiences with individual physicians to malpractice risk, Int J Qual Health Care 20(1):5–12 (2008)
  17. Scherger JE, What patients want, Journal Fam Prac 50 (2):137 (2001)
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