Why do patients and families sue their physicians? It's such a basic question, but still one worth exploring. Fundamentally, I believe that emotions – hurt, anger, and disappointment – often drive the process of litigation.
These emotions are a human response to loss, and are natural for patients who experience unwanted outcomes. After all, what greater loss is there than an unanticipated death, disease, or disability for someone you love? When that loss is linked to treatment that a patient or family member hoped would be beneficial, it isn't surprising that those wounded emotions drive at least some people to seek out a scapegoat.
Especially where it concerns the unexpected loss of a child, I think people simply may not know how else to process the loss. If it comes down to blaming the doctor, blaming God, or blaming themselves, the impulse to survive emotionally can drive people to take the path of least resistance and blame us.
A sense of loss is not the sole driver of many lawsuits alleging malpractice, however. While there are patients or families who sue solely because the outcome of care was not what they expected, in many cases, other factors have come into play.
Like catalysts in a chemical reaction, these other factors reduce the activation energy required to put the reaction of malpractice litigation into motion. They ramp up the hurt, anger, and disappointment, and they augment the risk that those feelings will be pointed toward us. By their very presence, they increase the probability that an adversarial process will move forward.
Awareness of these catalysts from the outset can diminish the likelihood that our alliance with a patient and family shifts into an adversarial mode, resulting in a lawsuit and the heartache it brings to everyone.
I've had the privilege of doing some teaching with Dirk Riemenschneider, an experienced malpractice defense lawyer in Cleveland, Ohio. In the course of our work together, he has taught me that these catalysts tend to congregate in three interrelated clusters:
Three Reasons Why People Sue
1. Mishaps in Communication
With all of the pressures inherent to medical practice right now, it can be easy to forget that patients and families need first and foremost to be understood and to understand.
Grasping their concerns does more than simply inform our care, though. It establishes a necessary sense of trust that we have what it takes to give them the care they need.
Insight into our thought processes; our level of worry; and risks, benefits, and alternatives perpetuates the trust. This is true even when all we have to offer is, “I don't know.” It's amazing how a few extra minutes spent reviewing what we're doing and why – in language that makes sense to our patient – can go such a long way to establish a sense that we, in fact, are present and we have the goods. I think it can happen so rapidly because their sense of need creates fertile ground for trust to grow in.
And here's the deal: If, for any reason, things don't unfold as optimally as we had all hoped, that early trust will be crucial. The more robust it is, the greater its potential to protect against things devolving into antagonism.
In the hectic environment of modern medicine, it can also happen that patients get the feeling that the various parties involved in their care aren't communicating well with each other. Sometimes their perception is right, sometimes it's not. What matters is what the patient sees.
What could be more disquieting than wondering whether the right hand knows what the left is doing? That experience sows seeds of anxiety. And certainly anxiety, with all of its accompanying stress hormones, never furthers the healing process.
Furthermore, if that sensation happens to precede an unexpected outcome, the patient or family member will feel justified in blaming the negative outcome on the caregivers.
I practice full-time, and I know how hard it is to find the time for cultivating relationships and communicating clearly with patients and our team. This has become the not-so-hidden challenge of modern medicine. Every little bit counts, though. In the long run, the pay-off is real.
2. An Uncaring Attitude
Nothing undermines the alliance between a healer and a patient faster than a perceived lack of compassion. By acknowledging our common humanity, small gestures – a smile, a handshake, sitting down – go a very long way. Failure on our part to cultivate relationships with patients and families, on the other hand, can frustrate and infuriate them.
One of the cornerstones of physician professionalism is the fundamental belief that every human life is of equal value. Our patients expect that we will adhere to that belief, and when we appear to deviate from it – for any reason whatsoever, including but not limited to their ability to pay – they lose faith with us as their healers.
We are all human and will have our rough days, but recurrent patterns of interaction which come across as impatient or condescending will ultimately get us burned. Whether we intend to appear arrogant or not really doesn't matter much. To the recipient, it represents a failure of humility.
It is also immaterial whether the arrogance is directed at patients, colleagues, or co-workers. Either way, it leaves people silent, angry, or worse yet, both. Anything you can do to keep anger out of the patient's room is worth your while.
It's true that we cannot forestall every negative outcome. But still, toss silence and anger in with a negative outcome and you've got double trouble for everybody.
3. Failure to Assume Responsibility
In recent decades, the physician-patient relationship has evolved dramatically in the direction of a more equitable partnership with innumerable benefits and new challenges on both sides. Even so, many patients expect a physician to take the lead, especially when the chips are down in the hospital environment. The view of physicians as captain of the ship is alive and well, and many of us would not want it any other way.
Failure to assume responsibility appears in many guises. Not conforming to hospital rules, policies, or procedures without a truly compelling, patient-centered reason to do so creates a big risk here. Under the unforgiving light of hindsight, this may come off as a lack of diligence, even to you.
Remember always that patients, families, judges, and juries respect integrity and conscientiousness in physicians and other healers. Plus, you yourself will process a significant adverse event better if you believe that you did the best you could.
Laying blame on others or appearing to hide details after things go wrong also will almost certainly backfire. Throwing others under the bus signals weakness and guilt, regardless of what actually occurred, and a lack of transparency conflicts with society's rightful expectations of the physician as a trustworthy leader.
Our position of strength resides exactly where it always has. It lies in feeling and conveying real empathy for the patient or family's loss, while simultaneously addressing that loss medically and being transparent to whatever degree we can without dabbling in speculation.
This strategy is far from easy at times and it offers no guarantees. Still, it is the one most likely to keep the space open for the alliance to recover. It's simply the right thing to do.
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