Bad things happen to good people, and not everybody sues; it’s the people who feel that they’re cared for that tend not to sue. The documentation for this is increasing daily.
“Patients who have good, communicative relationships with their doctors don’t sue,” says Professor Gaines. “We generally don’t sue people we love or who love us.” And that’s a good thing, she speculates. “But it is important for doctors to think about this: So your patients don’t sue you, but you do make mistakes, right? And sometimes you cause injury. So how does that work for you that you have malpractice insurance that covers you for injury that you cause, but your patients won’t sue you because they love you?” she asks. “How do we all sleep at night thinking it’s a good thing that between 92%-98% of people who are injured by our negligence don’t get compensated?”
The Value of Litigation
With respect to the issue of patient safety, says George J. Annas, JD, MPH, Edward R. Utley professor of health law and the chairman of the Department of Health Law, Bioethics, and Human Rights at Boston University School of Public Health, rather than doctors and lawyers viewing each other as “predator and prey,” it would be far more beneficial for them to see each other as “natural allies.”11 He suggests that we recall the intended purpose of litigation and its value for society.
Professor Gaines concurs: “We live in this world where on the medical side people are so litigation-phobic that we really aren’t able to see the value of litigation anymore.” Healthcare itself can be viewed as a patient that might be healthier if required to pay the price of unhealthy practices: namely, failing to engage in communication and safety practices that would reduce error and injury. Shaking up that system might lead to better healthcare.11
In fact, the claim that the malpractice system is fraught with frivolous litigation has been called “overblown” and not substantiated in the literature.12 The malpractice system is effective in separating claims without merit from those with merit and compensating the latter. In an analysis of outcomes and claims costs from 1,452 closed malpractice claims from five liability insurers, “three-quarters of the litigation outcomes were concordant with the merits of the claim.”12
“Some of the most excellent doctors I know have said to me on the QT, ‘I’m sure glad you lawyers are around because if you weren’t I don’t know how we’d ever get rid of the scary doctors.’ ” says Professor Gaines. “And if the rate of malpractice claims for merited negligence “is only 2%-8%,” she says, “we’re probably not doing a great job of it.”
What makes doctors scary to patients? Or, rather, what makes a good doctor? When patients and physicians were both asked this question (pertaining to outpatient physicians), more patients than doctors considered the exchange of health-related information to be an essential aspect of their healthcare. Physicians placed it far lower on their list.13 These kinds of differences in perception may influence the quality of interactions between physicians and patients, the study concluded.
Professor Gaines, who has consulted with hundreds of physicians and nurses in her role as director of the Center for Patient Partnerships at the University of Wisconsin, encourages them to spend time in meaningful communication with their patients. “Their argument usually is: I don’t have time.” she says. “My answer is: You don’t have time not to.”
Communication and Patient Safety Concerns
The needs for superb patient safety and optimal healthcare communication are intertwined. In research on quality of care, patient safety is now specifically named as a factor and is distinguished from effectiveness.4 Malpractice litigation is often pursued when patients experience an adverse outcome coupled with a lack of empathy from and a withholding of essential information by physicians.14 Senators Hillary Clinton (D-NY) and Barack Obama (D-IL) cite documentation for this when they advocate for patient safety to be the centerpiece of medical liability reform.