The Executive Suite: Doctor-patient communication’s role in mitigating medical malpractice claims

As an independent medical malpractice insurance broker, medical malpractice claims are a common topic of conversation with my physician clients. I have heard many stories from doctors dealing with the threat of a lawsuit, ranging from the comically baseless to the likely merited. From all the stories I have heard, I’ve been able to discern a common theme: communication matters. And poor communication may be perceived or actual. From lack of follow-up to inadequate bedside manner, time and again some type of poor communication is the root cause of my clients’ malpractice woes, while the clients who prioritize correspondence with their patients enjoy better outcomes. Their anecdotal experiences coupled with study data has shown that physicians who practice thorough, almost relentless patient communication reduce their chances of being hit with a medical malpractice claim.

In some ways, communication with patients needs to be unyielding, even if they’re ignoring you. Take the case of one of my surgeon clients: a year ago, one of her patients received a general surgical procedure which resulted in a good outcome. The patient reported some pain afterwards but skipped the follow-up appointment and communication ceased. A year passed, then out of nowhere my client’s practice received a bad review on Google from the same patient who missed her follow-up appointment. In her review, she complained that the pain she reported hadn’t been taken seriously and described my client as a terrible surgeon with such shoddy surgical skills that she had to seek out a neurosurgeon. A day later, the review was deleted, leading my client to believe she would soon be facing a medical malpractice suit.

The truth was that that patient’s surgical plan called for a second round of surgery from a neurosurgeon all along; in fact, my client was the person who referred the patient to the neurosurgeon. And even though it was the patient who missed the follow-up appointment, my client was now dealing with the aftermath of the perceived neglect.

Could my client have done anything to avoid this?

Unfair as it might seem, had my client reached out when the patient missed her follow-up appointment, it could have avoided the threat of this lawsuit.

One of my orthopedic surgeon clients had a claim that cost nearly $100,000 to defend, and it could have been avoided with better communication. After a total knee replacement (TKR) with no complication, the patient went home and healing began. The surgeon’s nurse called to check on the patient the next week but couldn’t reach anyone, and the patient never came back for a follow-up. Meanwhile, the patient was experiencing an infection from the incision which worsened. The patient ended up going to the ER and eventually filed a lawsuit against the surgeon. Had the patient answered the calls post-op, this infection could have been prevented, and a malpractice insurance claim avoided. What more could the surgeon and nurse have done? Had the surgeon’s practice collected multiple points of contact for the patient, such as a friend, family member, or caretaker, then contact might have been made. If he had stressed to the patient the importance of the follow-up then it’s possible the patient would have made it a priority.

Studies have found that certain doctors are sued more than others. Physicians that have a history of medical malpractice claims share these common characteristics, as reported by patients: long waits to be seen, but the appointment was rushed; the doctor did not fully explain their care to them; and they did not feel heard or treated with respect. Poor overall communication is the most common complaint against doctors that are sued the most often.

According to the New York Times, a plethora of studies over the last thirty years have shown that physicians who use humor in their care spend more time educating patients about their health and “try to get their patients to talk and express their opinions” are sued less often.

When you consider my clients’ stories in light of this information, it becomes apparent that if they had done just a bit more follow-up, made one more phone call to check in on the patient, spent a little more time discussing the diagnosis, or made the patient feel heard, then a medical malpractice claim may have been avoided.

Medical malpractice data shows us that bad patient-provider communication correlates with medical malpractice claims. Data compiled from the National Practitioner's Data Bank (NPDB) in the chart below shows the most common medical malpractice allegations made against doctors in 2019. Two reasons that appear in the top 10 are Delay in Diagnosis and Failure to Monitor, both of which can be the result of poor doctor-patient communication.

The NPDB reports that in 2019, 491 Delay in Diagnosis claims resulted in a total payout of $254,685,400 and 220 Failure to Monitor claims received a total payout of $88,793,500.

It’s probably obvious that good communication is important for a “bedside manner” that makes patients feel at ease, cared for, and unlikely to sue you, but it's not always easy for physicians to achieve, especially those in private practice. Paperwork, packed schedules and compliance requirements leave many offices and doctors overwhelmed and with little time for extraneous patient follow-ups.

Still, improving communication might be the difference that prevents a doctor from being sued, even in cases after a medical error has occurred. A study in the Western Journal of Medicine found that when doctors took the time to explain why a medical error occurred, took time to listen to their patient’s feelings about it, validate them, and discuss what efforts would be made to improve safety going forward, patients reported higher rates of satisfaction and trust. In cases of hospital care, they were also more likely to leave the physician out of the lawsuit.

One practical thing a physician can do right now to improve their communication and mitigate the risk of a malpractice claim is to increase their practice’s follow-up efforts with patients and other healthcare providers. In the case of my client, the general surgeon, if she would have reached out to the patient again after the missed follow-up appointment, she may have been able to explain that attending the follow-up was the best course of action to help her solve her pain issue.

A great example of robust follow-up comes from one of my neurosurgeon clients. He has a practice protocol in place to follow all of his major surgical patients for seven years post-procedure, touching base at least once a year to make sure they're not experiencing any new pain or to schedule a follow up if they are. And while not a regulation or requirement of any kind, this follow-up process plays a large part in helping his practice manage malpractice risk.

Yes, there is a cost associated with creating a comprehensive follow-up communication policy, even if you are paying a nurse or practice assistant to perform the outreach for you. It saves your practice money in the long run by reducing your malpractice risk and increasing patient satisfaction. This level of care can also help you get outstanding reviews on Google, Yelp, and physician-centered platforms. Additionally, physicians that collaborate with other health care providers can develop professional relationships and increase natural referrals, bringing even more financial gains to the practice.

The threat of a medical malpractice claim can loom large and impact every aspect of your life. Though many claims made against physicians are unfounded and go nowhere, avoiding one altogether will help your peace of mind and bottom line. By employing a communication style that consists of adamant follow-ups, thorough explanations, and making sure your patients feel heard, you will reduce your likelihood of a medical malpractice lawsuit and provide a healthier, happier experience for everyone involved.

References

Carroll, Aaron. “To Be Sued Less, Doctors Should Consider Talking to Patients More” New York Times, 25 Sept. 2014, www.nytimes.com/2015/06/02/upshot/to-be-sued-less-doctors-should-talk-to-patients-more.html.

“Physician bedside manner linked to malpractice suit” Relias Media, 1 May. 1997, www.reliasmedia.com/articles/48843-physician-bedside-manner-linked-to-malpractice-suit
Levinson, Wendy et al. “Physician-Patient Communication:

The Relationship With Malpractice Claims Among Primary Care Physicians and Surgeons” Journal of American Medicine, vol. 277, no. 7, 19 Feb. 1997, pp. 553-559. JAMA Network, doi:10.1001/jama.1997.03540310051034. Accessed 19 Jan. 2021.

Sloan, Frank et al. “Medical Malpractice Experience of Physicians:

Predictable or Haphazard?” Journal of American Medicine, vol. 262, no. 23, 15 Dec. 1989, pp. 3291-3297. JAMA Network, doi:10.1001/jama.1989.03430230076029. Accessed 19 Jan. 2021.

Bovbjerg, Randall et al. “The Relationship Between Physicians' Malpractice Claims History and Later Claims

Does the Past Predict the Future?” Journal of American Medicine, vol. 272, no. 18, 9 Nov. 1994, pp. 1421-1426. JAMA Network, doi:10.1001/jama.1994.03520180045033. Accessed 19 Jan. 2021.
Moore, Phillip et al. Medical Malpractice

The Effect of Doctor-Patient Relations on Medical Patient Perceptions and Malpractice Intentions” Western Journal of Medicine, vol. 173, no. 4, Oct. 2000, pp. 244-250. PubMed Central, doi: 10.1136/ewjm.173.4.244. Accessed 19 Jan. 2021.

Hickson, Gerald et al. Physician Practice Behavior and Litigation Risk: Evidence and Opportunity” Clinical Obstetrics and Gynecology, vol. 51, no. 4, Dec. 2008, pp. 688-699. doi: 10.1097/GRF.0b013e3181899c2c. Accessed 19 Jan. 2021.