Two kids were trying to figure out what game to play. 

One suggested, "Let's play doctor."

"Good idea." said the other. "You operate, and I'll sue."

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A Philadelphia OBGYN: “I never thought it would come to this. I no longer have a private practice. I had to sell out to the hospital once the malpractice insurance premiums got too expensive. Now they have midwives doing the deliveries, and I only come in for complications. They know they are going to get sued for just about everything that goes wrong, so they go with the flow and reduced costs with the midwives. The obstetricians are leaving this town left and right, and they are relocating to

 friendlier cities.”

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This post is an introdcution to professional liability and malpractice claims. For a detailed book on the subject, I refer you to, From Waiting Room to Courtroom - How Doctors Can avoid Getting Sued. 

https://www.amazon.com/Waiting-Room-Courtroom-Doctors-Getting/dp/9385891510

Since many malpractice cases are not based on medical mistakes, even the best doctors can, and most likely will, get sued. The doctors with the best bedside manner, who learn to practice defensively, are the ones less likely to end up in court.

A TALE OF TWO DOCTORS

Doctor 1 – One surgeon did a routine I&D (incision and drainage) on a patient who presented with some numbness in the surrounding tissues. After the procedure, the patient sued the surgeon claiming the numbness was caused by the I&D. This particular doctor acts pleasant to his patients but utilizes none of the skills associated with bedside manner. He doesn’t exhibit any compassion or humor and his communication skills are lacking. He explains options, risks, and consequences minimally. During treatment he makes no effort to interact with the patients. The patient was successful in winning the case on a settlement as the insurance company told him they couldn’t mount any type of defense due to his lack of informed consent.

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Doctor 2 – This endodontist experienced the misfortune of having a fifty-pound 

x-ray unit fall off the wall mount onto a patient causing a corneal injury. Fortunately, it was a glancing blow and didn’t do extensive damage. The doctor, skilled in all aspects of bedside manner, had formed an immediate bond with this first-time patient before the accident. The night of the accident he made a trip to the patient’s home and sat with her and her husband to tell them how sorry he was for her injury. The patient returned to this doctor for follow-up treatment, and she told him how all of her friends and family told her she should sue him. She further explained how she liked him so much and that the visit to her home precluded any chance of her taking any legal action.

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Patients sue for the most unforeseen reasons, quite often due to financial considerations, unexpected outcomes, and sometimes because there are personality conflicts. Naturally, claims have to have merit, or they will be dismissed, but that doesn’t mean patients can’t institute legal action. Once you go through the nightmarish process of a lawsuit, you will understand why it is better to have patients that love you. They will almost never want to sue you, even when things go wrong.

Some doctors believe patients come to them solely for their expertise. Of course, they come for their expertise, but they would actually like to have a friendly doctor who explains things to them and shows some compassion. So, like it or not, you may have to make some major adjustments to the way you greet and treat your patients. Yes, you are going to have to say good morning with a smile on your face. It’s a good beginning.

The February 19, 1997, issue of the JAMA offers a better understanding of the way bedside manner can help reduce lawsuits. Specific conversational behaviors were noted in doctors who were never sued compared to those with a history of malpractice claims.

The manner in which doctors spoke with patients was a big factor in the way they were perceived. The tone of voice, explaining what the patient could expect and making sure the patient understood information or instructions, helped. It was also found that primary care physicians who used humor were less likely to be sued.

Physicians who had not been sued also spent more time with their patients (18.3 versus 15 minutes). Having patients talk about their concerns and express their opinions went a long way toward connecting with doctors in a positive manner.

Patients don’t want to be rushed, ignored, or treated rudely. It is imperative to take time to answer patients’ questions, especially when things may have not gone well. It never fails; the patient with complications shows up in the middle of a hectic day. While the tendency is to rush the patient, this is the time to pay special attention to their needs. Make sure you explain what went wrong and when you are done ask if they have any questions. If they interrupt in the middle of your explanation, you can politely say, “I want to answer all of you questions as soon as I’ve finished explaining things to you.” 

THE INFORMED CONSENT

The informed consent is a matter of professional necessity and offers the best way to communicate with your patients in a manner that helps prevent lawsuits and defend against them if you end up in court. A common problem with informed consents that leads to the courtroom relates to making light of, or neglecting to mention, the potential for complications. When there is a good chance the patient will miss several weeks of work after a procedure, you have an obligation to mention the possibility to the patient. Most everyone I know would be rather perturbed to have an unexpectedly long recovery. It always pays to make the case for more difficulty than less.

It is common for doctors to downplay expected postoperative sequelae to sell the case. I suspect there are many people out there who might reconsider elective plastic surgery if they knew how difficult some of the healing might be for them.

It is your job to educate the patient and give them a realistic understanding of the procedures. Explain things clearly and use terms that are understandable. Try to present your explanations with the proper balance between what is expected and what could go wrong. You must warn the patient about the very worst-case scenario without scaring them away from the preferred treatment:

·      Begin by explaining that the procedure is not usually a worrisome event if that is the case.

·      With risky procedures that have many problems associated with them, be forthright.

·      Explain any and all adverse possibilities that could occur. Even if the occurrence is one in a thousand, the complication is one hundred percent when it happens to your patient. 

Here is an example of a thorough explanation with an element of humor. It can help you formulate a script for all of the procedures you perform:

DOCTOR

“Root canal therapy is not usually a big deal. As a matter of fact, most of my patients tell me it’s the greatest thing they ever experienced.”

Pause:

The patient will usually smile, laugh, or make comment. You smile back and continue.

DOCTOR

“Of course, I’m just kidding. The reality is that you could have some discomfort or pain afterward and this is completely normal. A small percent of the cases could experience pain for a few days. It’s usually handled well with some Tylenol or Advil and it settles down. In rare cases you could have a flare-up, whereby you have pain and swelling that could get so bad you’d want the tooth pulled. 

This is rare and almost never happens.”

If this patient has a severe flare-up, they have been forewarned and are less likely to assume the practitioner did something wrong.

I saw a minor male patient for a postoperative complication of pain and swelling. As soon as I entered the room, the mother was on attack mode. “In all my experience with root canals, I never saw anything like this,” she asserted. I asked her, “How much is all your experience?” She told me that she had two root canals. I almost laughed but refrained and just let a friendly smile show. “It’s interesting that in all your experience you may not have seen anything like this, but I’ve treated around a thousand cases each year for the past thirty years, and I’ve seen this a few times.”

I looked into my notes and saw the specific entry warning the possibility of a flare-up notated because this particular case was the type that has an increased chance of complications. I looked up from the chart and said, “Mrs. Smith, I see a note here that indicates we discussed the possibility that this tooth could flare-up. Do you remember that discussion?” She went on to apologize for attacking me, and I told her I’m sure I’d react the same way (you have to lie sometimes). I, again, explained how the dormant infection could act up, that the antibiotic wasn’t doing the trick, that we would increase the dose, and, if necessary, switch to something stronger. I took all the time necessary to explain and answer the mother’s questions while knowing the next patient was probably getting annoyed waiting for me as I went further behind schedule. That’s bedside manner. That’s avoiding lawsuits when things go wrong.

Even the best-loved doctor may get sued if the damages are large enough. A death after a routine procedure will surely see some legal discovery to determine if the doctor could be at fault. By arming yourself with all the proper documentation, and by being there for the patient and family in times of trouble, you provide the comfort your patients deserve, and keep yourself safe.