Perceived Negligence: Why Patients Sue?

Abstract

Let me share with you my thoughts on why patients sue despite rendering your best professional care to them. My past 10 years in law practice, dealing mainly with medical malpractice cases, have been a professional journey for me both as a lawyer and a physician. The opportunity to hear first hand patients and family members alike articulate their opinions, observations and feelings as to why they are filing a complaint or has filed a complaint has heightened my awareness on the unique nature of medical practice. I am pretty sure that as actively practicing physicians, and for an alleged medical negligence, you have already confronted peer reviews, disciplinary proceedings, complaints and actual medical malpractice suits. Perhaps, it is true that complaints are badges of burgeoning practice – more patients, more complaints. In my experience one observation remains the same and certain; if you commit negligence you will be sued. If the patient or family members did not sue, then your case is the exception. Do not take comfort that you did not intend to harm a patient or commit negligence. Understand that it is the very nature of negligence, there is no malice or intent involved; otherwise it is no longer negligence but physical injuries or homicide or maybe murder. What I want to address specifically is why do patients sue in the absence of negligence? Why did the patient or family member perceive your conduct as negligent in the absence of actual negligence? Remember that majority of medical malpractice cases are based only on “perceived negligence” and eventually will be dismissed. However, what matters is not in winning cases but in avoiding cases based on perceived negligence. It is best to remember that once you are sued, you have already lost. It is useless to taste your victory because the public nature of the case and the protracted course of litigation have already robbed you of your appetite to celebrate not to mention the adverse financial impact of facing a lawsuit. The first question to ask is “Why was it perceived as negligence in the first place?” In the absence of good communications with the patient or family members, any sudden occurrence of adverse events or complications can be interpreted by some as “physician-made.” The unfair expectation “to guarantee good results” has further expose physicians as “fair game” for lawsuits once something bad happens to a patient. In this scenario, I believed that the main culprit is “failed communications.” The often cited maxim “Physician’s communication skills are as important as clinical skills” should always be underscored every time a physician attends to a patient. All the more that this maxim gains significance if you are dealing with in-patients (admitted patients). Take note that majority of medical negligence cases are filed by in-patients. Ask yourself – Do I spend enough time, in a 24-hour period, explaining all aspects of the disease to a patient? Do I have the patience to answer every question my patient asks, no matter how trivial the question is? Do I appear genuinely interested? If your answer to these questions is “No”, then it is time to learn the art of good communication. It does not matter how good you are, it is the face to face encounter your patient remembers. Your chart rounds, continuing updates and review of previous cases will never be recalled by your patients for obvious reason – such activities are not seen by your patients. Such activities are not plus points. Often times, the line of good communications can be jeopardized by an adverse event. In this instance, the real strength of your resolve to maintain an open line of communication will be tested. Unfortunately, I often hear complainants saying, “We barely saw Dr. X after the incident” or “It was the resident who explained to us everything” or “Dr. X was vague in his explanations.” Comments like these are brought about by lack or poor communications. In some cases of perceived negligence, respondent physician can either explain the facts in front of the family or explain it in open court. Good communication skills can both neutralize the desire to file a lawsuit and defuse a confrontational situation. Communicating well with your patients can prevent an unfounded lawsuit. If your patient can hear you and likewise hear him too, then there is no reason why your patient should go to court to tell his complaint.