The odds

The title of our newsletter delves into a nuanced question: Why do some patients sue while others refrain? Remarkably, only a small fraction—between 1-3%—of patients with adverse outcomes opt to pursue legal action against their physicians. While part of this can be attributed to chance, such as encountering a naturally litigious patient, it's not entirely a matter of luck.

3 things to focus on

In our most recent pod, medical malpractice expert and emergency physician Mark Brown, MD, JD, opined about approaches to reduce the risk of being sued. When it comes to the act of doctoring, he had three recommendations:

Practice good medicine

Follow up with patients

Be nice

But doesn't 'be nice' actually harm patients?

The evidence that patients with higher satisfaction scores have worse outcomes (1,2) could make one think, “Well, maybe I should just be a callous wanker and all of my patients will do great!”

I doubt anyone went into medicine hoping to embrace that mindset.

Being nice involves clear communication, listening, and having genuine compassion.

I don’t think that those things are going to worsen patient outcomes, but they can reduce med mal risk.

The evidence on this is robust.

To wit.

Emergency Physicians

Clinical and procedural competence are critical. Meyers et al. found that ‘malpractice claims in EM are often diagnosis or procedure related’. (7)

We know that chest pain, abdominal pain, and retained foreign body are still big players in med mal.

But it’s not just the clinical side that matters.

Ferguson et al. found that communication issues often play a more significant role in leading to malpractice litigation than the actual occurrence of an injury. (5)

Surgeons

In a 2002 study, surgeons perceived as less concerned and more dominant in their speech were more likely to have been sued.

The idea of ‘dominance’ is interesting. The authors defined it as - deep, loud, moderately fast, unaccented, and clear speech. Not that any one of those things is bad, but the combination can be offputting.

Gregory House, MD. Not a surgeon but a dominant speaker nonetheless.

Here he is in full glory.

In addition, a common quality amongst those who had been sued was a patient’s perception of indifference. (4)

Primary Care

Levinson et al. found that primary care physicians without malpractice claims were observed to use more explanatory statements, employ humor, and engage in greater facilitation by seeking patients' opinions and ensuring understanding. They also spent more time on average in routine visits compared to those with claims. The duration of the visit independently influenced the likelihood of facing malpractice claims. (12)

Taking more time can be a big ask during an emergency department shift, but enhancing the perception that you’re taking time, now there’s some real magic. Keep reading.

OB/GYN

Patients treated by physicians with frequent malpractice claims were more likely to feel rushed, ignored, and report not receiving explanations for tests. (3)

When there’s a communication issue, the claim might have more bite

Up to half of malpractice claims involve communication failures, and here’s the kicker:

“Claims with communication failures were significantly less likely to be dropped, denied, or dismissed than claims without.” (6)

How do I take more time in a patient encounter when I don’t have more time?

The data on sitting down are compelling.

Post-spine surgery patients: Patients felt that the physician was at their bedside for longer when sitting despite no significant change in the actual time spent, whether sitting or standing. Those interactions where the physician sat were perceived more positively by patients, who reported a better understanding of their condition. (8)

Oncology consults: Sitting was associated with more caring, encouraging patient questions, and increased compassion. This study didn’t show a perceived time distortion with sitting or standing, but sitting came out smelling like a rose and standing less so. (9)

A fascinating side note is that not every patient preferred a sitting doctor! Though most did.

What to do with all of this?

Sit down. It's a win for them and for you.

Slow down. If you're feeling rushed, take a breath and check your tone. Are you starting to speak like Dr. House?

Pause. When you ask a question, sit there and listen for the answer before pouncing on the next question (are you listening, or are you reloading for your next salvo of questions?)

Circle back at the end of a visit. Patient experience expert Justin Bright scripts it this way, “Did we cover everything that you felt needed to be covered today?”

Compassion over empathy. Empathy involves emotionally standing in another person's shoes. While generally beneficial, excessive empathy can lead to burnout and create problems in healthcare. Barry Kerzin, the Dalai Lama's doctor, recommends shifting to compassion. One way to think of it is 'a half step back from empathy.’

Keep on rocking,

Robbie O

All references at the end of the newsletter

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References for main article

1. Fenton, Joshua J., et al. "The cost of satisfaction: a national study of patient satisfaction, health care utilization, expenditures, and mortality." Archives of Internal Medicine 172.5 (2012): 405-411.
2. Zgierska, Aleksandra, David Rabago, and Michael M. Miller. "Impact of patient satisfaction ratings on physicians and clinical care." Patient preference and adherence (2014): 437-446.
3. Hickson, Gerald B., et al. "Obstetricians' prior malpractice experience and patients' satisfaction with care." Jama 272.20 (1994): 1583-1587 Full text
4. Ambady, Nalini, et al. "Surgeons' tone of voice: a clue to malpractice history." Surgery 132.1 (2002): 5-9. Full text
5. Ferguson, Brian, et al. "Malpractice in emergency medicine—a review of risk and mitigation practices for the emergency medicine provider." The Journal of Emergency Medicine 55.5 (2018): 659-665.
6. Humphrey, Kate E., et al. "Frequency and nature of communication and handoff failures in medical malpractice claims." Journal of Patient Safety 18.2 (2022): 130-137
7. Myers, Laura C., et al. "Characteristics of medical malpractice claims involving emergency medicine physicians." Journal of Healthcare Risk Management 41.1 (2021): 9-15
8. Swayden, Kelli J., et al. "Effect of sitting vs. standing on perception of provider time at bedside: a pilot study." Patient education and counseling 86.2 (2012): 166-171. Full text
9. Strasser, Florian, et al. "Impact of physician sitting versus standing during inpatient oncology consultations: patients' preference and perception of compassion and duration. A randomized controlled trial." Journal of pain and symptom management 29.5 (2005): 489-497. Full text
10. Murphy, Alexandra. "To sit or not to sit: a question of cultural performance." Annals of Emergency Medicine 51.2 (2008): 194-196.
11. Standing up for effective communication: why we should sit. Link
12. Levinson, Wendy, et al. "Physician-patient communication: the relationship with malpractice claims among primary care physicians and surgeons." Jama 277.7 (1997): 553-559