Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

The Physician’s Best Defense Against Malpractice

Alan G. Williams, JD President of Physicians MedicaLegal Prevention, LLC
5-2-1 When questioned regarding the most important challenges facing physicians today, one third of responding physicians cited medical malpractice insurance/claims, according to a study published in the New England Journal of Medicine. Unfortunately, malpractice is a topic never far from physicians’ and healthcare providers’ thoughts.  However, studies show that, subsequent to an adverse medical incident, physicians and healthcare providers are the ones who have the most control over whether a malpractice claim is ever filed. Believe it or not, it truly isn’t the lawyers, the risk managers or the insurance companies who determine whether a physician or healthcare provider is sued. A study published in the American Journal of Medicine concluded that physicians who were rated in the bottom third of patient satisfaction surveys had a 110% increased risk of having a malpractice claim filed against them compared to physicians rated in the top third. Another study published in the Journal of the American Medical Association found that physicians who never had a malpractice claim filed against them: laughed and used more humor, asked patients their opinions, encouraged patients to talk and interact, educated patients regarding expectations, and spent on average over three minutes longer per visit, compared with physicians who previously had multiple malpractice claims filed against them. Considering that a Harvard study reported that less than three percent (<3%) of hospitalized patients who suffered injuries or death directly attributable to medical negligence actually filed malpractice claims, something other than the quality of medical care rendered can be the determining factor whether a patient files a malpractice claim. Researchers at Harvard, M.I.T., and the University of Michigan have concluded that when physicians and healthcare providers fail to adequately communicate with their patients subsequent to a complication or adverse medical incident (e.g., failing to explain exactly what happened and why it happened), patients often file malpractice claims simply to determine if any medical negligence occurred; however, once the discovery process of the lawsuit reveals there was in fact no medical negligence, the patients tend to drop the case. Such research supports the theory that the manner in which physicians and healthcare providers communicate and interact with patients is the single greatest determinant of whether a patient files a malpractice claim, even in cases where the physician or healthcare provider may have rendered substandard care.   Studies published in the Archives of Internal Medicine, the New England Journal of Medicine, and the Journal of the American Medical Association have found that patients typically    file    medical malpractice claims subsequent to a complication or adverse medical incident because they felt their physician or healthcare provider:   ◆ deserted them ◆ ignored their views and concerns ◆ did not timely communicate important information ◆ did not provide answers regarding what actually happened   Prevent a Lawsuit, Before It Happens   With this information and these studies as a factual background, it is important to note what small but vital steps physicians and healthcare providers can take to reduce the chances of being sued, even in cases where there is a question whether proper care was rendered.  Consider some of the following suggestions as a means to reduce the chances of incurring a malpractice claim:   • Sit down: Patients believe a physician or healthcare provider who sits during a portion of the visit has spent more time with the patient, compared to those who stand throughout the visit, despite the fact that time spent was exactly the same.   • Listen to your patient: On average, physicians and healthcare providers interrupt a patient just 17 seconds into the patient’s description of her complaints, according to a study published in JAMA. Interrupting a patient so soon communicates that you do not value her and that you are not interested in hearing what she has to say.   • Face the patient: Rotate your body to fully engage the patient when speaking with her, as studies show that when physicians or healthcare providers face more than 45 degrees away from a patient the patient has a negative impression of the visit.   • Look at the patient: Studies show that when speaking to a patient, she must be looking at you 80% of the time and you must be looking at her 90% of the time for her to fully comprehend what you are saying. Other studies show that only one in six American adults understand rudimentary medical discussions (i.e., most Americans don’t know a “negative” test result is good, that “malignancy” means cancerous, etc.).   • Review the chart before entering the room: When two people meet for the first time, each judges the other within the first ten seconds and that judgment will most likely be permanent; don’t let the first impression the patient has of you be the top of your head as you walk into the room hurriedly skimming the chart.   • The Physical Examination: From the patient’s perspective, the P/E is the most awkward and potentially embarrassing aspect of receiving medical care. Do all you can to ensure as much privacy and dignity as possible when performing what could become an intensely negative and degrading patient experience, one that convinces her to file a malpractice claim if she subsequently experiences an adverse medical incident.   It’s Still the Golden Rule: Do Unto Others   Some studies indicate that as few as 17% of all malpractice claims actually involve injuries caused by negligent medical treatment.  If this percentage is even close to accurate, physicians and healthcare providers must realize that their relationship with the patient is the single most effective tool to preventing malpractice claims from being filed. If a patient does not want to sue her physician or healthcare provider—despite the quality of care she received—she won’t. Physicians and healthcare providers must attempt to ensure open, positive relationships with their patients, not only to provide the best medical care they can, but to reduce the chances of turning those patients into medical malpractice plaintiffs.       Alan G. Williams, JD, is the author of the best-selling medical malpractice prevention book “Physician, Protect Thyself: 7 Simple Ways NOT to Get Sued for Medical Malpractice” To contact him please e-mail AlanGWilliams@PhysiciansMedicaLegalPrevention.com