The common denominator of all malpractice claims is a combination of surprise, disappointment, and anger. Anger is by far the most common factor in stimulating further action by the patient. Regardless of the actual cause, anger will be focused on the most convenient and visible target—the physician.

The average physician spends over 10% of his or her career consumed in defense of an open malpractice claim. And the majority of those claims close with no payment to the plaintiff.

A bad outcome can be anything from a known risk or complication to an unanticipated result. When there has been an unfavorable outcome, the common response is for patients to feel a sense of bewilderment and anxiety. The line between anxiety and anger is very tenuous, with fear of the unknown as the critical factor.

 

The normal response

The common response to a bad outcome is for the patient to blame another person. This serves to place responsibility elsewhere and gives the patient a sense of control that, however inappropriate, is easier to manage psychologically. A patient who is frightened by a postoperative complication and is uncertain about the future can gain a distorted sense of security by blaming the physician. The logic of this distortion is: “If it is the doctor’s fault, it is the doctor’s responsibility to correct it.” Thus, the patient lashes out at the physician with the subconscious perception that such action will get matters under control and force the doctor to produce a favorable result.

 

Physician reaction

When the patient blames the physician, it can create defensiveness in the physician. An unfavorable outcome also produces anxiety in the physician. Inevitably, patient complaints are interpreted as personal affronts that strike at the physician’s sense of professionalism, pride, and competence.

When a complaint is perceived by the physician as unwarranted, such as with a known risk or complication, communication with the patient can quickly degenerate into mutual hostility. A vicious cycle is then established—which causes an escalation of all emotions. In such a climate, the possibility of a lawsuit quickly becomes a probability. At this critically delicate juncture, how the physician responds can either set into motion or prevent a chain reaction of increasing hostilities.

It is very difficult, if not impossible, to be objective when you are a party to an incipient lawsuit. Therefore, controlling the course of events prior to the onset of mutual hostility is key to avoiding malpractice actions. The pretreatment or preoperative consultations during which informed consent is obtained can provide an excellent opportunity for the doctor-patient relationship to be firmly established through the sharing of information about the treatment, including its uncertainty.

 

The informed-consent process

Much has been written on the therapeutic effects of informed consent. These include less anxiety, increased trust in the integrity of the physician, a smoother clinical course, and better patient understanding should anything go awry. Experience has shown, however, that unless the doctor and the patient fully understand the significance of the interaction, both can be lulled into a false sense of security.

Ideally, the informed-consent process should be viewed as an opportunity to dispel uncertainty, allay anxiety, and help fill the gap between the patient’s lack of information and the physician’s knowledge. By sharing the information, the physician can transform a potentially adversarial relationship into a therapeutic alliance.

Consider, for example, the following statements:

  • Here is a list of complications that could occur during your treatment or operation. Please read the list carefully and sign it. If you don’t understand something, please ask me.”
  • I wish I could guarantee that there will be no problems during your treatment or operation, but that wouldn’t be realistic. Sometimes, there are problems that cannot be foreseen, and you need to know about them. Please read about them and let’s talk about it.”

By using the second statement, the implication is clear: “We—you and I—are going to jointly cooperate in doing something to your body that will make you better, but there are no guarantees on how your body will respond.”

Be cautious. In an effort to ease anxiety, your reassurance to the patient may overreach and create unwarranted expectations and an implied guarantee. You may also scare the patient out of essential treatment. Note the difference in the following statements:

  • Don’t worry about a thing. I’ve taken care of hundreds of cases like yours. You’ll do just fine.”
  • Barring any unforeseen problems, I see no reason why you shouldn’t do very well. I’ll certainly do everything I can to help you.”

Again, by using the second statement, you will project a sense of realistic expectations while remaining reassuring and helping the patient to accept reality.

 

Communication techniques

When dealing with a frightened patient who is using anger to gain control of the situation, as difficult as it is, make a supreme effort to put aside natural feelings of disappointment, anxiety, defensiveness, and hostility. Consider these communication techniques:

  • Listen well and remain calm. For the patient who is upset or angry, it is best to remain silent until the outburst subsides and the patient has calmed down. This technique of attentive silence often defuses angry people. Communication techniques are a learned skill but a critically important one.
  • Assess the patient’s level of understanding. This technique is of particular importance when a complicated medical treatment plan is implemented. Tailor your responses to each patient’s level of comprehension. Use graphics if appropriate.
  • Apologize for the situation. A sincere expression of concern for the patient and regret for the outcome and saying “I’m sorry this has happened” can go a long way in opening lines of communication with the patient. Such an apology—even for the patient experiencing a known risk and complication—can send a message of concern from the physician to the patient without being seen as an admission of fault. Many jurisdictions have statutes that, to varying degrees, permit healthcare providers to offer patients or family members statements of compassion that may not subsequently be used in court as an admission of liability against the physician. It is recommended that you acquaint yourself with the scope of what is permitted in your state.
  • Be patient with questions. Repeat information when necessary without registering impatience. Suggest that the patient bring a list of questions to the next interview.
  • Include the patient as a team member. Communicating to the patient the importance of involvement in the treatment plan sets the tone for shared responsibility in the outcome.
  • Under no circumstances lose your temper. Showing anger is the best way to guarantee a visit to the plaintiff’s attorney.
  • Remain accessible. One of the worst errors you can make in dealing with angry or dissatisfied patients is to avoid them. Although such a reaction is understandable, avoidance is the surest way to hasten a patient’s visit to an attorney. Hiding from a bad outcome will not make it disappear. As difficult as it may be, the more you talk with and listen to an angry patient, the more likely you are to avoid converting an incident into a claim. Take the initiative. Call the patient often. Make special arrangements for interface time without interruptions.
  • Establish a two-way rapport with all patients. If it is not possible to establish rapport, suggest that the patient seek another healthcare provider. Offer to make such an arrangement. It helps if you can assure that it is done at no additional charge to the patient.

By creating an atmosphere of trust and partnership, you can relieve your patients’ anxieties and defuse their anger. Without anger or hostility, you and your patients can work together as partners to decide their medical care plans.

Learn more about how the entire healthcare team can work together to improve patient satisfaction.


This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.

Richard Cahill, JD
Richard Cahill is Vice President and Associate General Counsel for The Doctors Company. Mr. Cahill provides legal support to the Claims and Patient Safety Departments. He has specialized in various facets of healthcare litigation for more than 25 years, including the defense of hospital and physician professional liability claims, managed care contract disputes, and related business torts. His principal clients have included Cigna, Kaiser Permanente, and Tenet Health Systems. Mr. Cahill has completed in excess of 175 trials and binding arbitrations during his career and has been appointed as an arbitrator in more than 350 cases involving healthcare issues. Mr. Cahill received his undergraduate degree summa cum laude from UCLA in 1975 and his juris doctor from Notre Dame Law School in 1978. He lectures frequently around the country on topics related to the healthcare industry. He has an AV Preeminent Rating from Martindale-Hubbell.

7 COMMENTS

  1. My Husband had Aortic valve replacement. He was told that this Tavr procedure was less of a risk than the Cabbage procedure (opening of the chest). My Husband suffers from diabetes, elevated kidney levels. The surgery left him, unable to walk, lost of language skills. He cannot take care of his self. He has been in & out of ER at least twice a month for the pass year. My Husband is Funeral Director. We have operated a successful business for over 36 yrs. Now he is wheelchair bound. Cannot operate or even involve himself with a business that he gave his all for. He has developed every imaginable complication from this surgery, which changed our lives completely. He had a stroke, I am told, during this surgery. He had every pre-operative test, to detect plaque. There was plaque behind the valve, which I am was told went to his Frontal Lobe & caused tremendous damage. My Husband is a very knowledgeable man. A college graduate. Now with home care & therapy can remember his name sometimes. He is depressed and angry. He is fed thru a feed tube & urinates thru a foley catharal. He cannot use the bedpan or bathe himself. This care is costing us a small fortune. We are not a family that try to achieve wealth thru lawsuits. We have always earned our own by the sweat of our brow and very hard work. My Daughter moved out of her home to care for her father. I could not give this care without her. Should we have to bear all of this expense for his care, from the mistake that a surgical team made thru using this procedure on a person that was not a candidate for it. I feel that the Hospital just started using this procedure. They should have used their medical knowledge & refused this procedure on my Husband.

  2. Clear communication is key, because without it there is no double check on both patient and physician expectations of “deliverables”. A doctor isn’t being kind or compassionate when telling a patient not to worry about a procedure or surgery. However as the article states, being candid about potential complications or risks and declaring that they- patient and physician are a team- focused together on the common goal of the most successful outcome can be reassuring. Hospitals and healthcare organizations need to step up and better train and support physicians in this process of patient communication, disclosure and apology. I have seen doctors blaming patients defensively hoping to ward off legal suits, (misguided advice from hospital administrators who are not progressive in their management of patient centered care or medical error/accident or complications). Ultimately, this does not further the physician’s cause or their patients.
    We need a healthcare system that fosters partnership and communication between doctor and patient and does not promote adversarial positions.

  3. My wife’s Dr left gauze in her back, only discovered it because of equipment count, so it caused him to open her back up and while retrieving the said gauze fractured her healthy verabra. He acted like it happens all the time. Now 4 years later he has NEVER told her what really happened. We had to read about it in her medical files. His response to it all was to garnish her wages because it was taking too long to pay her extra bill in which he caused us to have.
    She shoud have just sued him.

  4. Anger helps nothing, in any situation. Anger is unchecked emotion, and in its throes, a person cannot think logically or respond well. A professional would always do well to avoid anger at work in any case. I was a high school teacher, and when I had an out of control student who clearly needed a time out or chat with an administrator, I might have been starting to boil inside, but did my level best to always keep a game face. I had students ask me several times, “Why didn’t you yell at him? Why aren’t you mad?” (Kids love it when the teacher loses control with another student, and there is drama in the classroom.) I would always tell them that yelling and responding angrily, in my opinion, were wastes of productive time. And if I yelled, along with the student, then coming back to the classroom was going to be a lot more awkward for that kid. I would tell the student when he/she came back that I understood that everybody has a bad day, and that I don’t hold grudges, and that we were going to start over and forget the other day. Never did I have a kid respond to that in a sullen or disrespectful way.

    In education, despite our best efforts, there will be students who fail. Students and parents are often angry, and the teacher is frequently blamed. Even when the teacher, parents, and student sit down and come up with a plan, in a lot of cases, the student does not stick to the plan, or the parents don’t complete the follow up. The teacher might have explained that the student has to make up a certain amount of work, or come in for tutoring, and that without adherence, a guaranteed passing result won’t happen. It’s hard to keep tempers in check when a difficult student and his/her parents are hurling all kinds of insults and going to administration, but the teacher must remain professional and calm. An angry, defensive teacher does nothing but inflame the whole situation. A key thing to remember is that this person isn’t angry at YOU personally, but at the TEACHER, and actually is also mad at himself or at his/her child. Of course, bad results in medicine are a lot more serious than failing grades, but the principle here is the same: don’t lose your cool, because it puts you at a disadvantage, and you won’t be able to get it back. Stick to the high road.

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