If You Can't Say Something Nice....

If You Can't Say Something Nice....

Physicians strive to receive the best result for their patients. But do they put the same effort into their bedside manner? Both are important in preventing medical malpractice claims.

By Benjamin J. Howard

Healthcare providers have long been told their bedside manner is important, but they have not been told a positive bedside manner may prevent lawsuits. In Malcolm Gladwell’s Blink, a small part of the book attempts to explain a causal relationship between physicians’ care and malpractice suits. He writes, “Patients file lawsuits because they’ve been harmed by shoddy medical care and something else happens to them.”1 Relying in part on a 1997 JAMA study involving primary care physicians2 and a 2002 Surgery study involving surgeons,3 Mr. Gladwell concludes the “something else” is a physician’s demeanor when dealing with their patients.

To examine the impact a physician’s communications had on a patient’s perceptions, the JAMA study coded phrases and words. In contrast, the Surgery study excluded the content of the communications by manipulating the modulation of the audio so there were no identifiable words. The latter study found the surgeons’ verbal tones, by themselves, accurately concluded whether the surgeon had been sued in the past. If this were not remarkable enough, the verbal tones were extracted from just forty seconds of the surgeon’s visit. Just two ten-second clips from the first minute of the visit and two ten-second clips from the last minute were enough for the researchers to determine with a 95% confidence interval whether a surgeon had been sued in the past.

Anecdotally, both studies’ conclusions make sense. One prominent plaintiffs’ attorney from Boston described it in this way: “In all the years I’ve been in this business, I’ve never had a potential client walk in and say, ‘I really like this doctor, and I feel terrible about doing it, but I want to sue him.’…[A]ll of our clients have had bad medical results. The big question is: Was it just an unfortunate result or was it malpractice? When a patient has a bad medical result, the doctor has to take the time to explain what happened…The doctors who don’t are the ones who get sued.”4  

A healthcare provider may not be able to artificially convince a patient to like him or her, but they can control in part how the patients perceive their care. Neither study offered recommendations for healthcare providers in order to decrease the likelihood of being sued, but the 1997 JAMA study noted the following four characteristics are common to no-claims physicians. 

1. Orientation. Educate patients about their treatment, as well as the expected course of their visit or hospital stay.

2. Laughter and humor. 
 
3. Facilitation. Ask for the patients’ opinions, check their understanding, and encourage the patients to talk.
 

4. Length of visit. A mean of 18.3 minutes for no-claims physicians versus 15.0 minutes for physicians with a prior claim.

Incorporating these characteristics into patient visits does not guarantee a physician will not be sued for malpractice, but there is no downside to doing so. The patient will still be receiving the same quality of care, but they will feel more positive about the experience.

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1Malcolm Gladwell, Blink 39-43 (2007).

2Wendy Levinson, M.D., et al., Physician-Patient Communication: The Relationship With Malpractice Claims Among Primary Care Physicians and Surgeons, JAMA 277:553-559 (1997).

3Nalini Ambady, M.D., et al., Surgeons’ Tone of Voice: A Clue to Malpractice History, Surgery 132:5-9 (2002).

4Berkeley Rice, Malpractice Briefing: How Plaintiffs’ Lawyers Pick Their Targets, Medical Economics, April 24, 2000.


Benjamin Howard is an associate at Neil Dymott. He concentrates his practice on professional liability and general civil litigation. For further information, Mr. Howard can be reached at bhoward@neildymott.com.

 

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