June 01, 2011
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Better communication with patients may help avoid medical malpractice suits

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No provisions for statutory liability were included in the Patient Protection and Affordable Care Act, enacted in March 2011, but $50 million was earmarked for states and health care systems to tackle high medical malpractice costs using other approaches, including those focused on mitigating nonmedical errors.

In addition, President Obama’s proposed budget for 2012 includes $250 million in Department of Justice grants to states seeking to curb medical malpractice costs through prevention. Among the noted grant-worthy innovations suggested in the president’s budget is the training of health care personnel in disclosure and apology protocols and in conducting mediation programs.

Meanwhile, the Agency for Healthcare Research and Quality is already conducting several demonstration projects, three of which feature improved patient-provider communication regarding clinical care plans designed to avoid injury or claim. Other projects include forums for apologies from providers to patients and their families, when necessary.

Despite this, a study published in a 2006 issue of The New England Journal of Medicine found that they amounted to only 13% to 16% of all medical malpractice costs. “Moves to curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation,” the researchers concluded.

However, Allen Kachalia, MD, JD, and Michelle M. Mello, JD, PhD, concluded in a recent NEJM Health Policy Report that, “The launching of the federal demonstration projects may reduce the impetus for federal statutory reform in the immediate future, but it may reap longer-term gains.”

‘Bringing humanity back’

Mediation and opportunities for patients and providers to speak about undesired outcomes offer something court trials do not, according to a panelist on a medical liability roundtable discussion held in April, at the Philadelphia Hyatt Regency.

Deborah Lorber
Deborah Lorber

“Patients and doctors start off acting very human with one another. Then something happens; lawyers get involved — and boom. Everyone is angry and everyone is mean, and everyone is saying things against each other,” said panelist Deborah Lorber, assistant vice president for risk management at the Drexel College of Medicine in Philadelphia, who oversees the college’s mediation program. “But with mediation, we’re in a room together, and we’re not carrying on and we’re not intimidating. What’s happened is that we’ve brought humanity back into a situation that had lost it.”

Contrary to this, however, is that many doctors “who don’t fully understand the mediation process don’t show up because they think that it’s a settlement conference and they’re going to have to pay money anyway,” Lorber noted. “Mediation works very differently.”

Joseph S. Alpert, MD
Joseph S. Alpert

The fear of frivolous lawsuits has changed the way doctors practice medicine, resulting in a heavy emotional cost, according to Joseph S. Alpert, MD, professor of medicine at the University of Arizona College of Medicine in Tucson, and a Cardiology Today Editorial Board member. Practicing “defensive medicine” means physicians are forced to violate an “important aphorism of good patient care: ‘Don’t order any test or intervention (medical or surgical) that has little or no chance of improving the patient’s quality or length of life,’” Alpert wrote earlier this year in The American Journal of Medicine. “This, combined with the psychological burden placed on physicians involved in cases of alleged negligence, often creates a very unhealthy emotional environment for physicians and patients in our health care system.”

“I’ve had colleagues who have gone through the entire malpractice process and not told anybody in their practice about it. They have to disclose it on forms, but they don’t talk about it,” Cardiology Today Editorial Board member Peter R. Kowey, MD, said in an interview.

In cases in which error has occurred, however, it may still be difficult for physicians to face patients. “An apology may be viewed by some physicians as an unnecessary demonstration of vulnerability and exposure of emotions.” Patrice M. Weiss, MD, department chair of obstetrics and gynecology at the Carilion Clinic in Roanoke, Va., and Francine Miranda, RN, wrote in a 2008 issue of Obstetrics and Gynecology Clinics of North America.

Peter R. Kowey, MD
Peter R. Kowey

“We go through this complicated, arduous training process, but [we] don’t go around complaining about it,” Kowey said. “Doctors have this sort of strong, silent mentality: ‘Get your job done, suck it up, and do what you have to do.’ And they’re not terribly interested in having other people know that they’ve failed.”

But Lorber said: “I have always felt on a personal level that the patient or their family member is waiting to get over something, and they can’t because this issue is hanging over them. So, how do we get the doctor involved in bringing them closure?”

Often times, doctors come around to seeing the value in the process, according to Lorber. “If they have an active part in the mediation and in the settlement number, they walk away feeling OK about it.”

No time to care

“Less studied, but now receiving greater attention, are measures of how the liability system affects clinical care,” Kachalia and Mello wrote in the NEJM policy report. “Today, the pressing need to improve quality and efficiency in health care mandates that any liability reform also be evaluated on the basis of clinically relevant metrics.”

Evidence suggests that one way to achieve this is by providers showing more empathy to patients. Investigators at Jefferson Medical College in Philadelphia studied how medical outcomes of diabetics treated on an outpatient basis were affected by empathy, defined as “a predominately cognitive attribute that involves an understanding and an intention to help.” The investigators found that physicians with high empathy scores had patients with higher rates of favorable clinical outcomes than those with lower empathy scores.

“Empathetic engagement in patient care can contribute to patient satisfaction, trust and compliance,” the researchers concluded in a recent issue of Academic Medicine. “Malpractice claims against physicians are more likely when the physician fails to establish a trusting relationship with the patient,” Mohammadreza Hojat, PhD, lead investigator on the empathy study and author of the textbook Empathy in Patient Care, said in an email to Cardiology Today.

Hojat’s findings underscore those of a 1997 study published in The Journal of the American Medical Association, which stated that, “Primary care physicians who used more statements of orientation (educating patients about what to expect and the flow of a visit), laughed and used humor more, and tended to use more facilitation (soliciting patient opinions, checking understanding, and encouraging patients to talk) experienced less medical claims than those who were less engaged.”

The physicians in the JAMA study who had no claims against them, also tended to spend approximately 3 more minutes speaking with patients than physicians who were sued. However, a lack of time spent with patients is not necessarily due to a lack of interest on behalf of the provider.

Researchers studying the amount of time internal medicine residents spend on paperwork found that nearly 68% of residents (n=16,402) surveyed by investigators reported that they spent more than 4 hours per day on documentation; just less than 40% reported that they spent that much time in direct contact with patients. The study was published in a 2010 issue of Archives of Internal Medicine.

This administrative load placed on providers can translate into lack of clarity for patients. “Only about one in 20 patients who come to see me have a viable malpractice action,” Nancy Fullam, Esq., a plaintiff’s attorney in Philadelphia, said at the roundtable discussion, which she co-directed with Kowey. “I pay hundreds of thousands of dollars a year to have experts review medical records and protocols to decide if a case has merit. My office ends up telling the patient what the doctor didn’t have time to tell them.” – by Whitney McKnight

For more information:

  • Alpert J. Am J Med. 2011;124:187-188.
  • Hojat M. Acad Med. 2011;86:359-364.
  • Kachalia A. N Engl J Med. 2011;364:1564-1572.
  • Levinson W. JAMA.1997; 277:553-559.
  • Oxentenko A. Arch Intern Med. 2010;170:377-380.
  • Studdert D. N Engl J Med. 2006;354:2024-2033.
  • Weiss P. Obstet Gynecol Clin North Am. 2008;35:53-62.