EXECUTIVE SUMMARY
A decision to file a medical malpractice lawsuit often is driven by how the patient and family feel they were treated by physicians and staff. Efforts to convey a sense of caring can reduce the likelihood of a lawsuit.
- Severity and permanency of injury are other significant factors in deciding to sue.
- Patients may conclude a physician does not care after overhearing comments about a busy schedule and other concerns.
- Thoroughly prepare for meetings with patients and family to answer questions effectively.
Much of risk management is focused on avoiding liability and discouraging lawsuits, but what really makes a patient or family decide to sue? Much of the motivation comes from how they feel after interactions with physicians and staff — or the lack thereof.
The biggest factor in a patient or family filing a medical malpractice lawsuit is the patient-physician relationship, says Savera Sandhu, JD, partner with Newmeyer Dillion in Las Vegas. A physician may have done everything right, but if he or she is not communicating efficiently, respectfully, and honestly with a patient, that patient tends to sue.
“I represented a pulmonologist in the defense of a medical malpractice case where the patient lost several limbs, including amputation of legs and various fingers after emergent cardiac surgery due to ischemia. The patient had comorbidities that prevented any functional recovery,” Sandhu recalls. “She sued the entire hospital, from administration to nursing staff. My client, who provided subsequent care during her ICU stay, had nothing to do with her surgery or wound care.”
Sandhu asked the plaintiff to explain why her client was part of the lawsuit. “She explained that she did not even know my client but that the overall feeling was that the staff did not listen to her, nor cared about her condition,” Sandhu says. “Luckily, I was able to get her to dismiss my client from the lawsuit altogether.”
In mediations, Sandhu says she consistently hears patients and their families say, “The doctor didn’t seem to care about me and what I was saying,” or “The hospital staff did not take care of me.” Relationships are key to enhancing trust and encouraging correlated care for the well-being of the patient.
“Even if the patient or the family doesn’t know the medicine, they just want to be heard. In return, they want the physician to keep them apprised of the situation,” she says.
Patients Feel Rushed
Various actions, statements, or omissions can lead patients to the conclusion their doctor does not care. Sandhu says often it is the perception that care was not immediate, communication from the overseeing physician was delayed, or medical advice was short and without room for questions. The lack of dialogue makes patients feel unheard and uncared for.
“Medical schools and residency programs talk about bedside manner, but they should offer experience that is more practical. Unfortunately, the strain on healthcare resources and availability of physicians and medical staff as a whole prevents these professionals from hosting longer dialogues with patients,” she says. “I always encourage my healthcare clients to ask the patient if they have any questions or concerns, and then listen intently with key words said back to the patient to acknowledge an understanding of their fear, concern, or hesitation.”
In addition, always let the patient know the potential risks and harms of their overall condition and treatment, Sandhu advises. Do not hold back because the information is discouraging.
“Give room for the patients’ families to communicate their concerns for their loved one, because ultimately they are searching for comfort,” she says.
Sandhu notes most medical malpractice lawsuits that involve hospital staff are included under a vicarious liability theory requiring the hospital to show established policies and procedures to properly document patients’ conditions and course of treatment, including any potential risk or harm.
In the same lawsuit and mediation Sandhu referenced, the hospital and staff were sued for failure to provide adequate postsurgical treatment. The plaintiff said they left her requests for new sheets, gown, food, and pain management unanswered, even though the charts showed consistent care for her throughout her stay at the hospital, which amounted to several weeks.
“It was just her ‘feeling’ that they did not care,” Sandhu says. Still, documentation of even the most routine care is essential.
Severity and Permanency of Injury
Each plaintiff’s case is highly fact-specific, but the severity and permanency of the claimed injury are big factors in deciding to sue, says Jeffery Randolph Saxby, JD, partner with Hall Booth Smith in Atlanta. (See the story in this issue for more on how outcomes can affect the decision to sue.) These factors can be used as a reasonable evaluator of whether a malpractice claim will be filed, regardless of whether the injury resulted from a known risk of the care or procedure.
“Unfortunate medical care results that are correctable have little value in the eyes of plaintiffs’ lawyers, particularly when a healthcare provider will cover the costs of additional care,” Saxby explains. “Conversely, things like sensory injury, loss of appendage or limb, and inadvertent death are viewed as high-value claims to plaintiffs’ lawyers, and they are more likely to take on the risks of pursuing such a claim, even when it’s questionable whether a deviation from the standard of care occurred.”
Generally, the current motivations usually are compensation for losses, pain, suffering, and future care; the need for an explanation as to how and why an injury occurred; recognition of the severity of the injury and trauma suffered; and a desire to hold someone accountable — be it staff or an organization — as a means of ensuring lessons have been learned and that future care will be improved.
“Sometimes, the facts of the case and the alleged injury make the motivating factors behind the litigation quite clear,” Saxby says. “Other times, you can glean a great deal of insight from conversations with the patient or their family, frustrations they express, and things they say about how someone needs to pay for the mistakes they made.”
While it is common for patients to claim their physicians did not care about them, Saxby says very few patients truly believe that a physician simply did not care.
“What is more common is that a physician says something in earshot of a patient, family member, or other healthcare provider that the patient might overhear. When other members of a medical team are deposed during litigation, that’s often when things surface about inappropriate comments that were made about a patient’s weight, age, health, or other procedures a physician has to perform next,” he explains. “When a patient learns that their physician was concerned about his busy schedule while performing their own procedure, it is easy to conclude that the physician was not providing his full attention if an unfortunate result occurs.”
Or perhaps a physician does not exhibit a good bedside manner, Saxby says, or simply does not take enough time to really listen to what the patient is saying or express enough empathy for how the person feels. When a patient is in pain or scared, the smallest perceived slight can turn into the perception that their doctor does not care enough.
“Make ample time to talk with a patient and/or their family before any non-acute procedure or treatment. That doesn’t mean chatting with them for a few minutes immediately before a procedure,” Saxby says. “That means making enough time to really talk with them about what’s going to happen, why it’s necessary, the potential risks or side effects, what recovery is going to be like, and what the long-term outcomes may be.”
How to Explain Risks
The lack of informed consent often is raised not because a doctor did not explain a potential risk per se, but because the doctor did not take the time to explain the risks in a manner that a lay person would understand, Saxby notes.
For inpatients, a physician going above and beyond the usual once-a-day visit while in active care of a patient can go a long way toward showing the physician cares. A second visit by a doctor (not his or her nurse practitioner or other associate) to say, “I just wanted to check in on you and see how you’re feeling,” or, “We are still awaiting the results of ...” can greatly improve a patient’s perception of the care they received, Saxby says.
Hospitals are increasingly subject to claims of corporate negligence in conjunction with many malpractice claims. Their roles in helping prevent malpractice claims and mitigate risk cannot be overemphasized. Hospitals must show they are fulfilling their responsibilities on peer review, credentialing, and privileging procedures, ensuring compliance with Joint Commission standards and procedures, updating hospital policies and procedures annually, and ensuring doctors do not perform new procedures without demonstrating the required training. These best practices can help prevent malpractice claims and strengthen the defense’s case should litigation occur.
“One common issue we face in defending claims against doctors and nurses is when a hospital has a specific policy and procedure on a subject, and the doctor or nurse who is being sued has never seen the policy, or saw the policy years ago when they were hired but hadn’t seen it since,” Saxby says. “While policies and procedures are not standard of care, they are a major factor that jurors may consider in determining whether the standard of care has been met. Providing an annual review, continuing education, and other regular training on hospital policies and procedures with all care providers, including contract physicians, can be pivotal in litigation.”
No single action by a hospital will ultimately persuade or dissuade a patient from deciding whether to commence a malpractice lawsuit, short of pre-suit settlement of a known claim, Saxby says. But there are a lot of things administrators can do to reduce the likelihood of litigation, particularly if an unfortunate outcome within the known risks of a procedure occurred.
Consider Meeting with Patient and Family
Determine whether a meeting with the patient and family and the hospital’s risk management and legal teams is the best course of action. Often, it can be beneficial in demonstrating the hospital cares about what transpired and helps the patient feel heard.
“It’s an opportunity to answer their questions objectively and matter-of-factly while referring back to the patient record about medications, dosage, details of a procedure, and other factors,” Saxby says. “Sometimes, meetings with the patient and family should be avoided because it may lead them to believe that a hospital is worried about possible litigation or trying to talk them out of certain choices. Carefully consider the facts of each situation before deciding.”
Patients sue because their feelings were ignored or attitudes they perceive from the staff, but if a patient feels as though their concerns were directly acknowledged and addressed, they are less likely to resort to litigation, says William H. Chamblee, JD, managing partner of Chamblee Ryan in Dallas.
“Patients are also less likely to sue a long-time care provider if they have an established rapport and strong physician-patient relationship,” he says. “Being forthcoming and honest with patients can go a long way.”
Obviously, an adverse event or missed diagnosis contribute the most to patients filing a malpractice lawsuit, Chamblee says. But the already negative feelings are fueled by anger or resentment over perceived failures in communication, lack of empathy, or lack of follow-up from a physician or the office.
“From the beginning, a patient’s interaction with front desk and office personnel can lead to this perception that the doctor doesn’t care before the doctor has even seen the patient. There may be difficulty in scheduling, or the staff may fail to follow up or return calls,” Chamblee says. “This can lead to medical board complaints, or even a lawsuit, given the right fact scenario. Following a visit, there may be billing issues that are entirely an issue with the patient’s insurance provider, but since the physician and the office visit are the basis for the charge, the blame usually falls on them.”
Physician Blamed for Negative Encounters
When a patient leaves the physician’s office after a negative interaction, he or she is much more likely to scrutinize the visit and conclude the negative encounter is attributable to the physician or a lack of supervision of the staff, Chamblee says.
In addition, patients want to feel heard and understood. If a patient asks a question regarding a medication option that has worked well in the past, directing a physician to take the time to explain the risks, benefits, and then actually listening is all the patient needs to feel assured. That approach works much better than simply ignoring their request and prescribing a different medication.
Another issue is follow-up with test results. This can fall to the physician or the staff. “If a patient undergoes a procedure to treat or diagnose a particular longstanding problem, they will likely want a face-to-face visit to discuss the results, not just a generic upload of the results to the electronic chart,” Chamblee says. “While most of these items are more likely to result in a formal complaint because they are smaller issues, if amplified in the wrong scenario, they could result in a lawsuit. For example, what if the delay in discussing results of a test [causes] a delayed diagnosis and worsening of disease?”
Patients want to feel heard and understood. Sometimes, asking patients about their lives lends a bit more to diagnosing their condition. For example, certain careers are prone to more stress, or perhaps the headaches are caused by a lack of sleep or negative trigger in the patient’s personal life.
“Discussing those kinds of issues can improve the diagnostic outcome of the visit, and can improve the physician-patient relationship,” Chamblee explains. “Basic etiquette, such as responsiveness, maintaining eye contact, speaking directly to the patient, and including patients in basic decisions, such as scheduling, have been shown to influence positive perceptions.”
Unrealistic Expectations
Medical malpractice lawsuits often are caused by a combination of poor communications and unrealistic expectations, says Janice L. Merrill, JD, shareholder with Marshall Dennehey Warner Coleman & Goggin in Orlando. Timely communication with the patient and family after an adverse or unexpected outcome can prevent a malpractice claim.
Relentless advertising by plaintiffs’ attorneys has caused an uptick in medical malpractice claims. But by addressing the family’s concerns in a timely and sensitive manner, lawsuits often can be avoided.
Medical negligence claims are expensive for plaintiffs to prosecute and for the healthcare provider to defend. As a result, most cases involve a death or serious injury. In those cases, but perhaps more frequently in the unexpected death cases, even the best relationship with the patient can quickly deteriorate and result in a lawsuit.
In medical malpractice cases, the quality and timeliness of the documentation can make all the difference. The electronic medical record can be both a blessing and a curse.
“The volume of the record has increased dramatically, and a healthcare provider’s note is now populated with repetitive information, some of which may be inaccurate. A template or one-size-fits-all approach is not going to work,” Merrill explains. “The note needs to be personalized to the patient and reflect what actually took place and was discussed with the patient. This starts with the informed consent and applies all the way through the discharge summary.”
Do not be afraid to meet with the patient or family if they are unhappy with an outcome or ask questions, Merrill says. Be prepared for the meeting and invite people who can answer the family’s questions. Often, these meetings will prevent the family from going to an attorney.
Plan carefully for the meeting. Bring the organized and complete clinical record to respond to questions, and let the patient or family see the record, Merrill advises. Answer the questions truthfully and accurately. If you do not know the answer to the question, find out and get back to the family. Listen empathetically to what the family has to say.
Make Records Available
Ensure the hospital’s process for releasing medical records is not overly difficult and that records are released in a timely manner. Often, delays in obtaining records result in a patient or family contacting an attorney.
If you cannot release records to the person requesting them because they are not legally entitled to receive them, explain why and offer advice as to who can request the records on their behalf, Merrill says.
Recently, Merrill attended a pre-suit mediation in an action involving the death of a nursing home resident. The facts of the case were difficult and presented numerous defense challenges.
“In advance of pre-suit mediation, I had met with many frontline staff who provided day-to-day care to the resident, and I listened to their stories as they recalled the well-loved resident. At the mediation, I related how sorry the facility was for the loss of their father, and how they missed the resident, sharing many of their stories with the family,” she recalls. “The son and daughter responded to the stories, the tension in the room dissipated, and we were able to demonstrate that the staff and facility knew and cared about their father. This made an enormous difference to the outcome of the case.”
SOURCES
- William H. Chamblee, JD, Managing Partner, Chamblee Ryan, Dallas. Phone: (214) 905-2003.
- Janice L. Merrill, JD, Shareholder, Marshall Dennehey Warner Coleman & Goggin, Orlando. Phone: (407) 420-4411. Email: [email protected].
- Savera Sandhu, JD, Partner, Newmeyer Dillion, Las Vegas.Phone: (702) 777-7513. Email: [email protected].
- Jeffery Randolph Saxby, JD, Partner, Hall Booth Smith, Atlanta. Phone: (404) 954-6931. Email: [email protected].
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