Why some doctors get sued more than others

It depends as much on your interpersonal skills as on your clinical ability.

By Berkeley Rice
Senior Editor

Being an excellent clinician is no guarantee against malpractice claims. In fact, such simple interpersonal skills as listening to your patients and showing respect and empathy may be equally important in keeping you out of court.

In other words, nice doctors get sued less. Malpractice insurers and attorneys have long said this. And researchers from Vanderbilt University School of Medicine have proven it. They found a strong link between the number of patient complaints filed against doctors and the number of "risk management events" doctors were involved in.

The six-year study,* looked at the experiences of 645 physicians—two-thirds of them nonsurgeons—employed by a large medical center. The unsolicited complaints cited problems with communication, humaneness, clinical care, billing, access, and availability. The risk management events, or "RMEs," ranged from adverse incidents with the potential for legal action to those that involved actual expenses for documentation, expert witnesses, legal fees, settlements, and awards.

The researchers found that less than 10 percent of the physicians generated more than half the complaints, while 37 percent had no complaints lodged against them. Of the 135 events that resulted in malpractice claims, only 8 percent of the group accounted for nearly half the lawsuits.

Which doctors were responsible for the most patient complaints and RMEs? Not surprisingly, surgeons were named much more often. So were male doctors, which suggests that women doctors may be more sensitive to patient concerns. Busy doctors also topped the list, perhaps because they spent less time with patients, or were less attentive to their concerns. Two factors, however, didn't seem to make much difference: age and country of medical training.

In a previous study of 125 mothers (or other family members) who filed suits over childbirth injuries, the researchers found that many of them cited dissatisfaction with physician-patient communication when asked what had prompted them to initiate claims. Nearly half of these women felt their doctors had misled them—or had not been completely honest—about what happened. Nearly a third said their doctors had not talked enough with them, or answered their questions adequately. Thirteen percent said their doctors didn't listen to them.

In a subsequent study of nearly 900 maternity patients, a Vanderbilt team found that obstetricians who had the most lawsuits were more likely to be named in patient complaints elicited in a survey. Among the complaints: They didn't listen, didn't return phone calls, didn't show concern or respect, or were rude. (For tips on how to prevent such complaints, see "Common complaints, and how to prevent them".)

"I hope our findings remind doctors that their patients can be a valuable source of information about how we're doing, and how we can do better," says pediatrician Gerald Hickson, who led the Vanderbilt research teams. In a study currently underway at 10 hospitals and medical groups, Hickson's team is working with doctors who generate the highest number of patient complaints. "They're usually unaware of their high complaint status and how it's linked to malpractice suits," he says.

"We try to help them recognize the behavior that causes the complaints, and change it. They usually pick up quickly on doctor-patient communication, which is crucial, but it's not enough. Does the patient walk away from the encounter feeling that the doctor respects him as a human being? That's also a powerful predictor of whether they later file complaints and lawsuits."

Malpractice lawyers concur: People skills are crucial

Boston plaintiffs' attorney Alice Burkin has been representing injured patients for nearly 20 years. Over that time, it's become obvious to her that while many doctors make mistakes, only some get sued. "The most important factor in many cases—besides the injury itself—is the quality of the patient's relationship with the doctor," says Burkin. "People just don't sue doctors they really like. We've had people come in saying they want to sue some specialist, and we'll say, 'We don't think that doctor was negligent. We think it's your primary care doctor who's at fault.' And the client will say, 'I don't care what she did. I love her, and I'm not suing her.'

"On the other hand, I once had a breast cancer patient who wanted to sue her internist for delayed diagnosis, even though we felt the radiologist was clearly at fault," Burkin recounts. "But this patient had been going to the internist for five years, and in all that time, he'd never taken time to really talk to her. 'He never looked at me as a whole person,' the patient told me.

"All of our clients have had bad medical results," Burkin adds. "But when a patient has a bad result, the doctor has to take the time to explain what happened, and to answer the patient's questions—to treat him as a human being. The ones who don't are the ones who get sued."

"A lot of people come in because they want us to review their records and figure out why something went wrong," says Jeffrey P. Allen, a plaintiffs' attorney in Wellesley, MA. "They'll say, 'I asked the doctor, but he didn't explain anything.' Now the explanation may not be simple, but you can't just ignore your patient's questions, because sooner or later the truth will come out.

"In one case, the doctor had written a letter to the patient in response to her questions," Allen recalls. "He told her he couldn't tell her why her problems had occurred, and suggested she talk to someone else. Now that's sheer arrogance. He might as well have given her directions to the nearest plaintiffs' attorney."

What to say when you've made a mistake

If you do make a mistake in diagnosis or treatment, honesty is still the best policy, according to Grena Porto, director of risk management for VHA, an alliance of more than 2,200 community-owned hospitals. "Patients will often forgive honest mistakes when they're disclosed promptly, fully, and compassionately," says Porto. "But they become enraged when they suspect they're being stonewalled."

Don't try to pass off a mistake as unimportant. If you tell the patient, "Well, you're all right now, so let's not worry about it," you'll come across as flippant and insensitive. If patients think they aren't getting honest answers, that's when they're likely to turn to a lawyer for help.

If the error has caused an injury, an apology may be appropriate, but don't go overboard. There's no need to admit liability or attribute blame to others. Avoid using words like "mistake," "error," or "accident." Instead, you might say, "I'm very sorry this complication occurred," or "I'm sorry it turned out this way."

Some patients will interpret any apology as an admission of guilt. Remember, anything you tell the patient can be used against you in court. In fact, some malpractice policies prohibit insured physicians from admitting liability without the carrier's consent. As Mark Kadzielski, a health care attorney in Los Angeles, explains, "It's always appropriate to express sorrow and sympathy. But we must recognize that our tort system tends to punish people who make mistakes, not reward them for their honesty in admitting them."

Common complaints, and how to prevent them

Because there's such a strong link between patient complaints and malpractice claims, we asked several practice management consultants to list some of the most common gripes, and suggest how you can prevent them. Here are the top candidates:

No one likes to sit endlessly in your waiting room, but it helps if patients know how long they'll have to wait, and why. So when you're running behind, make sure your staff informs those in the waiting room. If possible, your receptionist should call patients with appointments and warn them of the delay. When you do see patients who've had to wait an extra 15 minutes or more, it helps to apologize.

When you're in the exam room with patients, they expect your full attention. Taking phone calls during the exam shows a lack of respect, particularly if they're from your spouse, your broker, or a golf buddy.

Respect personal privacy. If you have to leave a patient who's undressed, don't leave the door open.

Treat patients as human beings, not medical conditions. A cancer patient, for example, won't appreciate it if the nurse greets her—particularly within earshot of other patients—with a remark like, "So you're the ovarian, right?"

When a patient is telling you what's bothering her, don't interrupt. Hear her out, and really listen. Then when you decide on a course of tests or treatment, tell her what you plan to do, why you're doing it, and what your next steps will be.

When you order a test, don't make the patient wonder when he'll get the results. Tell him when the results should be ready, and whether your staff will call with the report or if he should call in.

One way to make your office more patient-friendly is to conduct a patient satisfaction survey. Or ask several trusted patients to tell you what they don't like about your practice. You may discover that they find some of your staff rude, or that they hate your efficient but impersonal voice-mail system.

If a patient does leave your office in a huff, or threatens to switch to another physician, have your office manager call to find out why she's upset. If possible, you should call also, to explain or apologize. It may not change her mind, but it might help prevent a lawsuit.

*See "Patient Complaints and Malpractice Risk," JAMA, June 12, 2002.

Berkeley Rice. Why some doctors get sued more than others. Medical Economics Jul. 11, 2003;80:73.