Facing the Difficult Issue of Potentially Litigious Patients
2007; Wolters Kluwer; Volume: 29; Issue: 3 Linguagem: Inglês
10.1097/01.cot.0000266377.98956.9c
ISSN1548-4688
Autores Tópico(s)Medical Malpractice and Liability Issues
ResumoBALTIMORE—Health care professionals can take certain steps to prevent potential litigation from difficult patients, such as learning why patients may sue, establishing patient expectations about care, maintaining open communication, and ensuring health literacy. Knowing what to do when a patient becomes difficult and when legal allegations arise is also crucial, agreed the experts interviewed for this article. Learning how to manage difficult and potentially litigious patients is an important part of medical care, said Maureen Burke, RN, MSN, Clinical Risk-Management Consultant at Riggs, Counselman, Michaels & Downes, an insurance and risk-management firm in Towson, Maryland, speaking here at a symposium on gynecologic health presented by the Weinberg Center for Women's Health & Medicine at Mercy Medical Center. “Difficult patients can be the bane of many physicians' professional existence. They can try your patience, test your limits, and challenge your ability to provide care.” Patients are not inherently litigious, of course, commented Emerson Smith, PhD, a medical sociologist with Metromark Market Research, in Columbia, SC. Understanding Why Patients May Sue To help avoid litigation, physicians need to be cognizant of the many reasons patients and/or their families may pursue legal action, said Roberta Carroll, Senior Vice President for Aon Healthcare, a risk-management and insurance brokerage firm headquartered in Chicago. Reasons include being concerned or angry about the quality of care, wanting someone to be held accountable for medical errors, the need for monetary compensation, and not wanting the same medical errors harming someone else in the future. Additionally, many patients pursue litigation because they simply want an explanation for poor medical outcomes. “Sometimes patients feel the need to sue simply to get someone to talk to them,” Ms. Carroll said. Studies show that about 32% of patients who sue do so because they perceive that the doctor deserted them, Ms. Burke said. Another 29% pursue legal action because of patient or family influence, 26% because of poor communication or bad delivery of information, and 13% because of a negative bedside manner. Patients may also simply feel the need for an explanation or an apology, she said. 4 Categories While overall, litigation in oncology tends to be rare, physicians should be aware of four broad categories of legal allegations, according to a study presented at the 2005 ASCO Annual Meeting (Abstract 8172): Unexpectedly severe toxicity secondary to chemotherapy, or toxicity about which the patient was not properly informed or forewarned. Treatment based on a misdiagnosis. Treatment that appears to be unduly delayed. Cases where the patient claims the diagnosis of metastatic cancer was delayed. Another recent study (Eur J Radiol 2006;57:428–435) found that mammography and delayed diagnosis of breast cancer is one of the most common causes of legal action against physicians. Establishing Patient Expectations Establishing patient expectations is crucial for preventing litigation against oncologists, said Paul Liu, MD, Director of Gynecologic Oncology and Medical Director of the Cancer Program at South Nassau Communities Hospital, who prior to entering medicine was an attorney specializing in medical malpractice. “In oncology, it is important to establish expectations at the outset,” he said. “If expectations are unrealistic, a bad outcome in the patient's eyes is more likely.” Open and full disclosure of disease prognosis and treatment is an important part of establishing patient expectations. Patients need to be given facts about the disease as well as the benefits and side effects of treatment, he said. “If the patient has advanced cancer, you can tell him that he has an uphill battle and that you are responsible for giving him all the facts and statistics about the disease and survival. But you also need to let him know that you're not going to give up on him and will do all you can for him.” While establishing patient expectations and open disclosure are critical, Ms. Burke advises to never guarantee the outcome of a treatment: “There's nothing exact about a patient. You need to remain objective and humble.”Figure: Paul Liu, MD, a medical malpractice attorney before entering medicine, notes that in oncology, it is important to establish expectations at the outset: “If expectations are unrealistic, a bad outcome in the patient's eyes is more likely. Open and full disclosure of disease prognosis and treatment is key. If the patient has advanced cancer, you can say it is an uphill battle and that you are responsible for giving all the facts and statistics about the disease and survival. But you also need to let the patient know that you're not going to give up and will do all you can.”Expectations about screening also need to be managed. The authors of the study on mammography litigation, from the University of Crete, noted that, “radiology and public interest organizations as well as physicians should consider undertaking efforts that would educate the public to the fact that mammography may not be as accurate as initially thought.” In addition, patients need to be informed that early diagnosis of breast cancer does not necessarily guarantee a cure and that failure to diagnose breast cancer earlier does not necessarily result in a poorer prognosis, the researchers wrote. Maintaining Open Communication Once patient expectations are established, a policy of open communication needs to continue throughout the course of care, Dr. Liu said. Oncologists can run into potential problems when they don't have a good relationship with the patient based on open communication. When tests results aren't discussed and phone calls aren't returned, feelings of neglect and discontent can arise, he said. “A series of seemingly small oversights can collectively make for a very angry patient.” Answering patients' questions is also an important component of open communication. Doctors who take the time to answer patients' questions get sued less often than do physicians who just give patients exams and instructions and rush off to the next appointment, Dr. Smith noted. “Always ask, ‘Is there anything you want to tell me or to ask me?’” He recommends following up by asking, “Anything else?” until the patient says, “No, that's all.” When talking to patients, making frequent eye contact, being attentive to the patient's non-verbal cues, and offering encouraging feedback also help, Ms. Burke said. Determining what the family's role is in caring for the patient and having family members present at appointments if possible is also useful. Ensuring Health Literacy Another communication issue that may contribute to litigation and is often overlooked is low health literacy, Ms. Carroll said. “If patients don't comprehend what you're telling them or cannot read the instructional or educational materials given to them, they will be unable to comply with instructions and are less able to manage their health. This can lead to medication or treatment errors, failure to seek preventive care, higher health care costs, and more frequent hospitalizations with longer lengths of stay.” Patients are clever at hiding their inability to understand medical information because they are often embarrassed, Ms. Carroll added. However, hospital and office administration staff can be taught to look for clues to uncover the problem. For example, if patients have low health literacy their registration forms may be incomplete or contain obvious errors. Physicians also need to look for any indications of lack of comprehension. Asking patients to repeat back information or instructions as they would tell them to a friend is an easy way to verify that they understand what they have been told, Ms. Carroll said. Another way to ensure health literacy is to provide easy-to-read educational and instructional materials, generally at the 5th grade level, she said. Creating a Respectful Office Environment A work environment that fosters respect for patients and colleagues can also minimize litigation, Ms. Burke noted. For example, ensuring that the office staff and the answering service are courteous can prevent unnecessary patient dissatisfaction with the clinician's practice. Additionally, being on time for appointments can also keep patient annoyance at bay. Ms. Burke also advises physicians to avoid criticizing another practitioner's management of the patient. “You don't know what went on between the [other] doctor and patient,” she said, adding that people will file lawsuits based on what one clinician said about another. When multiple clinicians are involved, clearly delineating their roles and conveying these roles to the patient will facilitate coordination of care. When Patients Become Difficult If despite all the physician's and office staff's efforts, the patient becomes difficult, the issue should be addressed immediately, Ms. Burke said. “Set firm limits with the patient and provide consistency with the rules and expectations. Clarify the patient's perception of the problem and his or her role in the treatment plan.” Foster the patient's sense of control by offering choices, she added. Trying to take care of at least one of the patient's concerns can also be helpful. “Say, ‘This is what I can help you with today,’ and the patient may feel that some of the problem has been somewhat mediated.” If all else fails, dismissal of the difficult patient from the practice may be necessary as a last resort, Ms. Burke said. She suggests providing a written notice of care for another 30 days and a referral to another doctor. When Legal Disputes Arise Whether or not a patient is difficult, legal allegations can arise. Anecdotal evidence shows that if an institution takes responsibility for medical errors, offers an explanation as to what occurred, identifies what preventive efforts have been taken to minimize reoccurrence, offers compensation and apologizes, then litigation is often avoided, Ms. Carroll said. The incentives and pressures for full disclosure and apology are growing, she added. For example, to combat reluctance by physicians to apologize to patients, many states now protect apologies, as well as statements of sympathy and condolence. Thirty-two states currently have apology statutes that protect the medical provider, Ms. Carroll said. “If physicians apologize for an error, it's not allowed to be used in a court of law against them as an admission of wrong-doing or liability.” Another five states currently mandate the disclosure of adverse events to patients. The list of states with apology laws and those that require mandatory disclosure to patients is constantly being updated as more states embrace reporting and disclosure, she said. Nonprofit organizations created to encourage health care quality are also advocating transparency and apology, she said. For example, the Leapfrog Group, which represents many corporations and public agencies that buy health benefits on behalf of their employees, dependants, and retirees, will give hospitals the opportunity to receive positive public recognition this year if they agree to apologize to the patient and/or family affected by a serious medical error—also termed a “never event,” defined by the Centers for Medicare & Medicaid Services (CMS) as a serious and costly error in the provision of health care services that should never have happened. A newly revised list of 28 never events was released at the end of last year by the National Quality Forum, a nonprofit membership organization created to develop and implement a national strategy for health care quality measurement and reporting. Such events include surgery performed on the wrong body part or on the wrong patient and leaving a foreign object inside a patient after surgery. The hospital must also report the event to at least one of the following agencies: the Joint Commission on Accreditation of Healthcare Organizations, a state reporting program for medical errors, or a patient safety organization. The facility must agree to perform a root cause analysis, consistent with instructions from the chosen reporting agency and waive all costs directly related to a serious reportable adverse event. CMS aims to eliminate payments for never events, according to testimony last year before the Senate Committee on Finance by the agency's then Administrator, Mark McClellan, MD, PhD. Finally, apologies and investigations of events aside, if compensation is in order, the hospital/provider needs to step up to the plate and offer it, Ms. Carroll said. Fair, equitable, and timely compensation offered to patients who have experienced an avoidable adverse event is an important part of an overall early intervention program to avoid litigation. If the doctor did not perform within the standards of care and this resulted in a poor outcome or harm to the patient, Dr. Liu said, the doctor “needs to get out the checkbook.” Useful Resources Full List of Never Events, National Quality Forum www.qualityforum.org/pdf/news/prSeriousReportableEvents10-15-06.pdf Medical Malpractice Tort Reform, National Conference of State Legislators www.ncsl.org/standcomm/sclaw/medmaloverview.htm The Sorry Works! Coalition—a nationwide group of doctors, patient advocates, lawyers, and insurers that promotes full disclosure as a middle-ground solution to the medical malpractice crisis in the belief that full disclosure reduces lawsuits and liability costs for doctors while providing swift justice to more victims and reducing medical errors. www.sorryworks.net
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