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Seven Ways to Succeed in Getting Sued (without Really Trying)
By Bruce David Janiak,MD, FACEP, FAAP, Professor of Emergency Medicine, Medical College of Georgia, Augusta.
(Executive Editor's note: Dr. Janiak has served as an emergency medicine medico-legal consultant for over 30 years, and has reviewed hundreds of malpractice cases. In the process, he has recognized common patterns and mistakes that emergency physicians make that set them up to be sued. This article takes a tongue-in-cheek approach to pointing out potential mistakes and ways that lawsuits might be avoided.)
• Don't communicate.
If you want to get sued, don't bother to explain your approach to the patient's problem or share decision making with the family. Patients would like to hear what you are thinking. This information and communication event gives them an opportunity to express their expectations. Remember that unmet expectations are a root cause of unhap- piness in all of life (even if it's too long a wait at McDonalds).
For example, "I am concerned about your grandfather's fever. We are going to do some labs and a chest x-ray. If these results are all negative, then I believe he will be able to go home, since he looks otherwise okay." Now the plan is set, the relatives have a chance for buy-in, and your pathway should be relatively smooth.
Contrast this approach with the more absolute comment, "The labs are okay, so he has a virus and can go home." If grandfather deteriorates in the next few hours at home, you want a family that shared in the decision making.
Another version of the same theme is the failure to recognize their need for communication. Have you ever purposely avoided the eyes of that relative or patient leaning on the doorway into the room? They often want reassurance that they have not been forgotten. Even if Mr. Smith in room 6 is not your patient (this refers to both physicians and nurses), take a second to ask, "May I help you"? This gesture may go a long way toward mitigating the building anger or frustration fueled by an unexpectedly long wait. And there is a side benefit when you confirm that you actually did put in a call "30 minutes ago" some of the building frustration can be shared with the party actually responsible (e.g. the slow consultant). Finally, offering the patient a blanket because he or she is in a frigid room says more than a thousand solicitous words and is an awesome way to communicate to your patients that you care.
• Don't do what the patient requests.
As emergency physicians, we frequently are told, "My doctor sent me in and said you should call her as soon as I arrive." Knowing that we have not yet done an evaluation, it is natural to assume that the primary care physician will want the benefit of our history, physical, and testing results. By following this natural assumption, you may find yourself in a "lose-lose" situation. Refusal to contact the requesting doctor gives the patient evidence of your lack of caring and concern. Furthermore, perhaps the primary care physician (PMD) did want early contact and will facilitate admission, consultation, or provide invaluable background information. If anything goes wrong, the patient will be upset and the PMD will stand by the patient.
This is especially true of the curmudgeonly consultant. (You know and dread him. Calls to him are unpleasant, and every time you speak with him he treats you like an intern.) This consultant will certainly claim, "I would have come in immediately if the emergency doc had only called. As it was, he waited for the CT result and it was too late to save your husband." Don't be afraid of conflict. After all, you must be the patient advocate.
• Be sure to over-test, since that will protect you from a successful suit.
This concept is all-pervasive, and we all practice some defensive medicine. The bottom line here is that overly defensive test-ordering makes your defense in a lawsuit more difficult. For example, a patient presents with fever and a negative history and physical examination. You are sure you are dealing with a virus, but order a complete blood count (CBC) just to be sure. The white blood cell count (WBC) is, unfortunately, 18,600 with a slight shift to the left. Because the patient looks great, he goes home only to return with something awful and infectious. You and your defense expert will be grilled on the CBC alone. In truth, these cases are much more defensible when labs are not done. You must ask yourself, "What will I do with abnormal results?" Your expert will have an easier time saying that the tests were not indicated than saying that grossly abnormal results were not a harbinger of the doom that is already evident at trial.
• Place little to no emphasis on the discharge process.
We who practice emergency medicine have done very well with the initial portions of the emergency department (ED) experience. Our triage and registration processes are streamlined, and the clinical evaluations of emergency specialists are light years ahead of what we did 20 years ago. Yet the end point, the discharge process, has changed little. I have seen the scribbled "F/U with PMD PRN" more times than I can count. (I often wonder what the average patient thinks "F/U" means.)
Discharge instructions need to be more specific. "See Dr. Hughes within 2 days, or sooner if worse" is more appropriate, especially if the patient deteriorates unexpectedly. The patient's failure to follow specific instructions will help should litigation ensue.
Conversely, open-ended instructions will weigh against the emergency physician in a similar circumstance. For example, a patient comes to the ED several times over several months with "pneumonia." All of his discharge instructions are vague regarding follow-up. His lung cancer remains undiagnosed and a lawsuit follows.
'Little things' foster connection with patients
What are the things that physicians who have successful and therapeutic relationships with their patients do more or less consistently? Churchill et al.1 interviewed 50 medical professionals judged by their peers to be especially good at sustaining excellent patient relationships. In their article published in the Annals of Internal Medicine in 2008, they summarize the themes that seem to correlate with a healing relationship with patients:
• Do the little things. Introduce yourself, greet everyone in the room, shake hands, smile, sit down, make eye contact, give undivided attention.
• Take time to listen. Be still, quiet, interested. and present.
• Be open. Be vulnerable and don't avoid the pain; look for the unspoken.
• Find something to like, to love. Think of your family, take the risk, stretch yourself.
• Remove barriers. Acknowledge power differentials, practice humility, create bridges, make welcoming spaces.
• Let the patient explain. Listen for fear and anger, listen for expectations and hopes.
• Share authority. Offer guidance, ask permission, enable the patient's autonomy.
• Be committed and trustworthy. Do not abandon; invest in trust, be faithful.
1. Churchill LR, Schenck D. Healing skills for medical practice. Ann Intern Med 2008; 149:720.
• Assume no one is listening (even the dead and dying).
After a prolonged resuscitation, I once pronounced a patient dead only to have her revive on her own shortly thereafter. Following her discharge from the hospital, she sought me out, declaring, "I heard everything you guys were saying." Although this is an extreme case and, thankfully, all staff members were professional, I was reminded of how vulnerable we can be to off-the-cuff comments.
Patients do not like listening to our vacation stories or comments about our favorite wines whey they are in distress. Keep personal comments and stories out of earshot. Bad results combined with comments about our behaviors are supportive of a jury's judgment about our credibility.
• Don't be afraid to mention the word "appendicitis."
We have all heard the relative ex-claim, "I know someone who had this same pain and later died of appendicitis." Take the time to address these concerns with an acknowledgment of the patient's impressions and concerns. Indicate that you, too, have thought about this diagnosis and why a particular diagnosis isn't or is included in your differential.
When appropriate, bring up other possible and reasonable scenarios and outcomes that might be associated with a patient's chief complaint and presentation. Counsel them that appendicitis is a potentially difficult diagnosis, and that time may have to pass for you to make a definitive diagnosis. Discuss with them the pros and cons of the computed tomography (CT) scan, including a significant radiation exposure. You may be surprised that some people will opt to return the next day for a repeat examination rather than have the CT scan.
These discussions can also serve to educate the patient's family that a return visit for a repeat evaluation is an acceptable diagnostic approach. In addition, simple reassurance may be another valuable outcome: "Thank you for asking the question. Yes, appendicitis is a possibility, but usually we find the pain associated with appendicitis in the right lower quadrant and not on the left side."
Nevertheless, in the event of a bad outcome, avoiding tough questions like the proverbial ostrich and refusing to acknowledge their fears or even the possibility that their family member might have a more serious condition can set one up for a lawsuit.
• Ignore complaining patients, and don't call them back.
Having called back many complainers over the years, I have learned much about how we are perceived. While often painful experiences, they are truly opportunities for improvement. The primary issue in almost every situation includes a communication failure. We tend to see a patient, order a test or two, and then return to discuss results. This is acceptable when the department is busy, but when you have the time, just sit (yes, sit) and chat for a few minutes. You may find that the true reason for the visit will be disclosed. It's possible that even though you are practicing good emergency medicine, you are not meeting the patient's expectations.
ED directors can miss an important opportunity to learn about operational problems or staff behaviors that need correcting. In reality, the astute management of a patient's complaint can sometimes turn an unhappy customer into an ardent fan of your service and a return customer.
Finally, patients may complain simply because they feel "no one cared," and by the physician not responding, that feeling is reinforced. Opportunities to defuse a potentially litigious situation or public relations boondoggle may be missed.
We all need to do more communicating and less testing. (See "Little things," page 31.) Don't be afraid to ask specifically, "What is your primary concern?" or "What did you expect me to do for you today?" In reality, the best way to get sued is to actively or passively treat patients contrary to how you would like to be treated if you were in their shoes. All the testing you can do will not overcome the combination of a bad outcome and a perceived bad attitude.