My father, although retired, is a general and thoracic surgeon, triple boarded in critical care, who ran a trauma unit.  My brother is a pretty successful lawyer.  Whenever I visit them, inevitably at least one night ends with the three of us around a table, and the two of them going at it about who is to blame for the malpractice system.

My father, of course, blames the lawyers; my brother blames the doctors.  I sit quietly, sip my drink, and try not to get noticed.

But questions like these are answerable.  And I am tired of the arguments.  So I decided to do some work in the area.  We’ve published a paper in Pediatrics trying to give more details on suits in pediatrics, and I have a grant to look at some of the more ignored specialties with respect to malpractice.

In general, I think there’s plenty of blame to go around when it comes to malpractice.  Yes, many claims are filed which have no merit.  But many more are never brought to trial that have a lot of merit.  But somehow, no one wants to take responsibility.

I bring this up, because a journalist with whom I correspond tweeted an article recently.  Briefly:

In 2001, University of Michigan Health System launched a program encouraging health workers to report medical mistakes. The program included a procedure for telling patients and their families about errors; explaining who made the error, how it occurred and what steps were taken to prevent a similar mistake in the future; making a sincere apology to the patient or their family; and offering fair compensation for harm when at fault.

The result was a reduction in the number of lawsuits and other compensation claims, a faster resolution of disputes and lowered legal costs overall.

My only amazement at this is that this is news.  I mean, duh.

We have known for so long that there is likely no greater predictor of a lawsuit than the relationship between the doctor and his patient.  Granted, we are never going to have a randomized, controlled trial on this issue to prove causation (can you imagine randomizing docs to be nasty?), but there is a ton of evidence that that this is true.  Here’s a sample:

A JAMA study in 2004, entitled, “Obstetricians’ prior malpractice experience and patients’ satisfaction with care“, reported on interviews with almost 1000 women who had varying experiences in childbirth:

RESULTS: Even though none of the women actually filed a claim, a consistent pattern of differences emerged when comparing women’s perceptions of care received. Patients seeing physicians with the most frequent numbers of claims but without high payments were significantly more likely to complain that they felt rushed, never received explanations for tests, and were ignored. In response to the open-ended question, “What part of your care were you least satisfied with?” women seeing physicians in the High Frequency malpractice risk group offered twice as many complaints as those seeing physicians who had never been sued. Problems with physician-patient communication were the most commonly offered complaints.

CONCLUSION: Physicians who have been sued frequently are more often the objects of complaints about the interpersonal care they provide even by their patients who do not sue.

Another JAMA paper from 2002, entitled, “Patient complaints and malpractice risk“, examined the association between physicians’ patient complaint records and their risk management experiences through a retrospective longitudinal cohort study of 645 general and specialist physicians in a large US medical group:

RESULTS: Both patient complaints and risk management events were higher for surgeons than nonsurgeons. Specifically, 137 (32%) of the 426 nonsurgeons had at least 1 risk management file compared with nearly two thirds (137 [63%] of 219) of all surgeons (chi2(1)= 54.7, P<.001). Both complaint and risk management data were positively correlated with physicians’ volume of clinical activity. Logistic regression revealed that risk management file openings, file openings with expenditures, and lawsuits were significantly related to total numbers of patient complaints, even when data were adjusted for clinical activity. Predictive concordance of specialty group, complaint count, clinical activity, and sex for risk management file openings was 84%; file openings with expenditures, 83%; lawsuits, 81%; and multiple lawsuits, 87%.

CONCLUSIONS: Unsolicited patient complaints captured and recorded by a medical group are positively associated with physicians’ risk management experiences.

Here’s a paper from the American Journal of Medicine in 2005, entitled, “The relation of patient satisfaction with complaints against physicians and malpractice lawsuits“, which looked at 353 physicians, divided them into 3 groups according to satisfaction on a commercial survey instrument administered to recently discharged patients, and then analyzed their complaints and risk management episodes after adjusting for the physician’s specialty and panel characteristics of the physician’s patients:

RESULTS: Decreases in physicians’ patient satisfaction survey scores from the highest to the lowest tertile were associated with increased rates of unsolicited complaints from patients (200 vs 243 vs 492 complaints per 100,000 patient discharges; P <0.0001) and risk management episodes (29 vs 43 vs 56 risk management episodes per 100,000 patient discharges; P = 0.007). Compared with physicians with the top satisfaction survey ratings, physicians in the middle tertile had malpractice lawsuit rates that were 26% higher (rate ratio [RR] = 1.26; 95% confidence interval [CI]: 0.72 to 2.18; P = 0.41), and physicians in the bottom tertile had malpractice lawsuit rates that were 110% higher (RR = 2.10; 95% CI: 1.13 to 3.90; P = 0.019).

CONCLUSION: Patient satisfaction survey ratings of inpatient physicians’ performance are associated with complaints from patients and with risk management episodes. Commonly distributed patient satisfaction surveys may be useful quality improvement tools, but identifying physicians at high risk of complaints from patients and of malpractice lawsuits remains challenging.

Finally, here’s a systematic review that was published in Psychiatric Services in 2002, entitled, “Research on the influence that communication in psychiatric encounters has on treatment“.  The authors examined nearly all published studies from 1950 to 2001 that examined the communication skills of psychiatrists and other physicians and their impact on outcomes (emphasis mine):

RESULTS AND CONCLUSIONS: Twenty-five articles in medicine and 34 articles in psychiatry were selected. Medical communication researchers have observed associations between physicians’ communicative skills and patients’ satisfaction, patients’ adherence to treatment recommendations, treatment outputs, and patients’ willingness to file malpractice claims. The research has also shown that primary care physicians can be more responsive to patients’ concerns without lengthening visits. In psychiatry, the literature can be organized into four discrete categories of research: negotiated treatment and the customer approach, therapeutic alliance, Gottschalk-Gleser content analysis of patients’ speech, and content analysis of psychiatric interviews.

I could go on, but I imagine you get the point.

When I responded to my journalist friend that I wished this was news, she replied, “So why don’t they do it?”  Except it was Twitter, so it read “So Y don’t they do it?”

My answer was that I have built a career on docs not doing what they should.  That’s flippant, but it really is hard – very hard, in fact – to change what doctors do.  There are guidelines and papers and continuing medical education and still it’s glacial work.

But you would hope that this message – that being better people, even more than being better doctors, would reduce malpractice suits – would be an easy one to implement.

Aaron E. Carroll is an associate professor of Pediatrics at Indiana University School of Medicine who blogs at The Incidental Economist.

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