Bedside manner – some got it, some don’t. A recent article in the New York Times, however, makes the point that a physician’s willingness to communicate with his or her patients after a medical mistake can mean not getting sued for malpractice. Likable physicians are simply less likely to be sued, or so says the research. The victims of medical negligence and their lawyers are often portrayed as money-grubbing filers of frivolous lawsuits. Numerous studies, however, have concluded that money is not the biggest motivator when it comes to medical negligence claims, even though the cost of the harms caused by medical errors can be astronomical. (And, as I have written on this blog, the studies also show most lawsuits are not frivolous).
A doctor’s refusal to talk openly to a patient about an adverse result; the belief that a physician is misleading to hide bad conduct; failing to explain the long-term consequences of harms suffered; failing to explain a proposed course of treatment. All of these increase the likelihood of a lawsuit. In fact, doctors who were sued most often had twice as many patient complaints – poor communication like that described above being the most common.
This should come as no surprise to doctors or patients when studies have shown that they both generally agree improved communication would reduce the number of lawsuits filed. This concept was actually demonstrated at the University of Michigan where a program encouraging open and honest communication by physicians after a medical error occurred, including an apology and an offer of compensation, resulted in a 65% decrease in lawsuits and legal costs over a 10 year period.
Here in Arizona, we have what is known as the I’m sorry statute. It is A.R.S. § 12-2605. Many other states have adopted similar statutes and I have written about them before on this blog. It allows health care providers to have frank and compassionate communication with their patients after making a mistake that studies have shown reduce malpractice lawsuits without fear that their statements may be used against them. Unfortunately, in my practice, I rarely have clients tell me their doctor has expressed regret or compassion after making a medical error. That’s probably because as human beings we don’t want to admit that we are fallible. It’s also because doctors appear to remain focused on tort reform, which, as I have frequently written, has been shown time and again by the doctors’ own studies to have failed, rather then reforming their patient interactions.
