Be careful what you promise

January 4, 2008

You can't always prevent undesirable outcomes, but you can help create realistic expectations

Key Points

"This won't hurt a bit." We first heard that when we were very young and our pediatrician was about to give us a shot. Many of us have had a slight, but lingering, distrust of physicians ever since. Yet, it's an example of how the natural inclination of doctors to comfort patients and relieve their anxiety might do medical professionals more harm than good.

Simple assurances like, "This is a straightforward procedure and you have absolutely nothing to worry about," or "If you stay on this medication, everything will clear up in a couple of days," don't always yield the promised result. And when that happens, you'll have an unhappy patient-or perhaps even a malpractice claim-on your hands.

Keep in mind that only two things are required to generate a lawsuit. The first is a patient with unrealistic expectations and the second is a less-than-optimal outcome. Physicians can't always prevent undesirable outcomes, even when they do everything right. However, they can do a great deal to create realistic expectations.

In some situations, optimistic promises about outcomes, or statements in which risks are downplayed, can trigger a lawsuit for lack of informed consent or "breach of warranty." Such a claim doesn't require the patient to prove the usual elements of a malpractice case-most notably, that the physician failed to act as a reasonably prudent practitioner under similar circumstances. It only requires that the patient establish that he or she wasn't informed of the risks and alternatives that a reasonable person would have considered to be important in deciding whether to undergo the proposed treatment.

Similarly, to establish a claim for breach of warranty, the plaintiff doesn't have to prove that the physician was negligent. The patient only has to show that he relied on the doctor's representations ("you have nothing to worry about") in consenting to the procedure, and those representations turned out to be wrong. So even if you exceed the standard of care, you'll have a problem if the outcome isn't consistent with the representations and warranties-or the patient wasn't told about common risks and complications.

In talking with patients about proposed procedures or treatments, you're not required to identify every possible hazard and potential adverse outcome, just the major ones. It's more important to help the patient understand that while things usually go as planned, each person is different and there are no guarantees. Don't try so hard to calm your patients' anxieties that you end up leaving the impression that you and the proposed treatment are infallible. If you do, you'll only create unreasonable expectations and, should there be an adverse outcome, your patient could become your plaintiff.

The author is a health law attorney with Adelman, Sheff & Smith in Annapolis, MD, and Washington, DC. He can be reached by e-mail at aadelman@hospitallaw.com
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