Communication gaffes: cause of malpractice claims

Communication gaffes: a root cause of malpractice claims | Proc (Bayl Univ Med Cent). 2003 Apr | Free full text PMC article

In this age of phenomenal technological innovations and highly successful treatments and cures, why is it that our customers, the patients, are dissatisfied with their health care to such a degree that they feel compelled to file a lawsuit?

The 4 predominant reasons prompting patients to file a lawsuit included:

1) a desire to prevent a similar (bad) incident from happening again;

2) a need for an explanation as to how and why an injury happened;

3) a desire for financial compensation to make up for actual losses, pain, and suffering or to provide future care for the injured patient; and

4) a desire to hold doctors accountable for their actions.  

Overwhelmingly, the dominant theme in these studies’ findings was a breakdown in the patient-physician relationship, most often manifested as unsatisfactory patient-physician communication.

Study participants described the perceived communication problems as follows:

  • physicians would not listen,
  • would not talk openly,
  • attempted to mislead them, or
  • did not warn them of long-term neurodevelopmental problems.

Other communication problems cited included

  • perceptions that doctors deserted patients or were otherwise unavailable,
  • devalued patient or family views,
  • delivered information poorly, or
  • failed to understand the patient’s perspective.

As the authors have often observed, and as is well documented in the literature, patients are not likely to sue physicians with whom they have developed a trusting and mutually respectful relationship.

Simply put, patients do not sue doctors they like and trust. This observation tends to hold true even when patients have experienced considerable injury as a result of a “medical mistake” or misjudgment.

Do physicians have influence over the circumstances that cause patients to file lawsuits?

While physicians cannot control all the stated reasons for patients’ seeking legal redress, they are able to influence the quality of their relationships with patients.

And, as already noted, the foundation for a good patient-physician relationship is communication.

This article discusses the “art” of communication as it occurs in everyday patient encounters, the important dialogue that occurs when giving informed consent, the challenge of encountering an angry patient, and the new trend of disclosing unexpected outcomes and medical errors.


The American Association of Orthopaedic Surgeons (AAOS) strongly endorsed the communication aspect of the patient-physician relationship in its advisory statement “The Importance of Good Communication in the Physician-Patient Relationship” 

According to the AAOS, physicians who practice patient-focused communication

  • show empathy and respect,
  • listen attentively,
  • elicit patients’ concerns and calm fears,
  • answer questions honestly,
  • inform and educate patients about treatment options,
  • involve patients in medical care decisions, and
  • demonstrate sensitivity to patients’ cultural and ethnic diversity

All too often, when physicians do not communicate caring concern, especially when the care is painful, difficult, or results in less-than-optimal outcomes, an inevitable cycle of miscommunication occurs among patient, family, and physician.

Under these circumstances, patients who express their anger and frustration may cause the physician to react defensively in a way that may be perceived as hostile or arrogant.

Most often it is this response that causes the patient to seek the advice of an attorney, because poor communication between a physician and patient can lead an already angry, dissatisfied patient to believe the care was poor even when it was entirely appropriate

The critical communication behaviors that differentiated the “no claims” from the “claims” primary care physicians were the following:

1) greater use of orientation statements that served to educate patients on what to expect,

2) greater use of laughter and humor, and

3) greater tendency to solicit patients’ opinions, check their understanding, and encourage them to talk.

What this all boils down to is that the physicians who had no claims established better rapport with their patients and evoked greater patient satisfaction.

A crucial point in the encounter is the physician’s first greeting of the patient. Does the physician show personal concern by offering a handshake and a warm smile? This action instantly puts the patient at ease in what could otherwise be an unfamiliar, if not frightening, environment.

An explanation of the agenda for the visit sets the patient’s expectations and aligns them with the physician’s.

Maintaining eye contact rather than staring off into space, out the window, or at notes indicates that the physician cares about the patient. Additionally, maintaining eye contact cues the physician on the patient’s reactions as conveyed by body positioning, eye movement, or other body language.

The bottom line is this:

patients who enjoy a positive therapeutic rapport with their physicians do so because mutual expectations are in line and there is good communication flow from patient to physician and physician to patient.

A model developed by the Bayer Institute for Health Care Communication illustrates this dynamic well. The “4E” model uses the approach of

  1. engage,
  2. empathize,
  3. educate, and
  4. enlist

for obtaining information and furthering the relationship


Patients want to be told the treatment options available and why a particular option is recommended.

The very act of disclosure lessens patients’ anxiety, increases their trust in the physician, often results in a smooth clinical course, improves patient understanding, and decreases the unpleasant “surprise factor” should anything go awry

The objective of informed consent should be to replace some of the patient’s anxiety by providing a sense of participation in and control over his or her care

Remember that the informed consent process is the physician’s opportunity to allay patient anxiety, bridge the gap between patient ignorance and supposed physician omnipotence, and dispel uncertainty.

This is one of those moments in the patient-physician relationship when the patient is most vulnerable. Thus, it is important to prepare patients without sabotaging their confidence.


Few encounters are more challenging than confronting the angry patient.

The patient who is angry—with his doctor, about the care he is or is not receiving, or about an outcome of care—is a lawsuit waiting to happen. The physician, not the lawyer, is in the best position to defuse the patient’s anger

I was a very angry patient by the time I saw an excellent neurologist to investigate my long-standing pain.

I’ll be forever grateful that he actually took the time and explained to me privately that my anger was a problem because “angry patients are litigious patients”.

His words have undoubtedly had a great influence on how I interacted with all my following physicians. If I had continued expressing my anger, I would not have received anything useful but found only rejection.

Remember, anger is the way people respond to unmet needs or expectations. Most of the time the anger (rightly or wrongly) is directed toward the physician because he or she is the most convenient and visible target.

As difficult and unpleasant as it may be, the most effective way to defuse anger is to listen, empathize, and apologize that things did not turn out the way the patient expected or hoped.

When faced with someone who is upset or angry, it may be prudent to remain silent and allow that person to talk about the problem

While the easiest and most natural reaction is to strike back, the better practice is to

  • avoid fighting words,
  • listen without interruption,
  • avoid becoming defensive,
  • express empathy,
  • ask questions,
  • determine what the patient wants,
  • explain what can and cannot be done, and
  • discuss alternatives.


One of the most difficult aspects of medical practice is dealing with adverse outcomes. A complication that occurs during medical care or treatment is distressing to the physician, the patient, and the patient’s family.

When the patient experiences an adverse outcome, it is always better to have a forthright conversation with the patient, explaining what happened and why.

The best reason for disclosure is that it is the one sure way of assuring that the patient will continue to trust the physician.

Nothing defuses patient anger better and faster than a sympathetic, open-minded physician who is willing to discuss not just the successful outcomes of care but the glitches and problems that arise as well.

Studies have shown that what patients want from their physicians following an error is an apology and the assurance that what happened to them will not happen to someone else

Not every error is the result of negligent behavior.

“The principal argument in favor of disclosing medical errors to patients is based on the ethical duty that physicians have to patients.

Physician-patient relationships are based on a bond of trust that develops when one person relies upon another’s judgment for his or her well-being.

Physicians are required to act in the best interests of the patient, putting aside one’s own interests” 

Most patients who experience iatrogenic injuries or are dissatisfied with their care ignore the problem or find other ways to resolve the problem, including changing physicians

On the flip side, several studies have shown that failure to be honest with patients is a frequent cause of litigation

Many physicians are unsure about how to disclose a medical error and when to do it. The short answer is as soon as possible. Timing is crucial, and once it is clear that a medical error leading to a complication has occurred, the physician should disclose all relevant information to the patient as soon as possible after verifying the facts.

First and foremost, express empathy for the patient’s pain and suffering.

Second, do not hesitate to provide the patient with all known facts.

Most importantly, a frank discussion without speculation or blame will begin the process of restoring a patient’s faith and trust, which will enable the physician to give the best possible care going forward

To summarize, when an adverse or less-than-optimum outcome occurs, it is recommended that the physician implement the following plan of action:

  1. Recognize the patient’s frustration and possible fear
  2. Recognize your own feelings of disappointment and anxiety
  3. Don’t panic—keep lines of communication open
  4. Express regret that the adverse result occurred but avoid finding fault or blaming others
  5. Explain what happened and the proposed plan of action in terms the patient can understand
  6. Keep the patient and family informed and involved in subsequent treatment plans and discussions; document the discussion in the medical record

In any situation, good physician-patient communication is the mainstay of a therapeutic, mutually respectful, and trusting relationship.

The advice of treating each patient as you would want a close family member treated will give a physician all the guidance needed.  

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