The common denominator of all malpractice claims is a combination of surprise, disappointment, and anger. Anger is by far the most common factor in stimulating further action by the patient. Regardless of the actual cause, anger will be focused on the most convenient and visible target—the physician.
A bad outcome can be anything from a known risk or complication to an unanticipated result. When there has been an unfavorable outcome, the common response is for patients to feel a sense of bewilderment and anxiety. The line between anxiety and anger is very tenuous, with fear of the unknown as the critical factor.
The common response to a bad outcome is for the patient to blame another person. This serves to place responsibility elsewhere and gives the patient a sense of control that, however inappropriate, is easier to manage psychologically. A patient who is frightened by a postoperative complication and is uncertain about the future can gain a distorted sense of security by blaming the physician. The logic of this distortion is: “If it is the doctor’s fault, it is the doctor’s responsibility to correct it.” Thus, the patient lashes out at the physician with the subconscious perception that such action will get matters under control and force the doctor to produce a favorable result.
When the patient blames the physician, it can create defensiveness in the physician. An unfavorable outcome also produces anxiety in the physician. Inevitably, patient complaints are interpreted as personal affronts that strike at the physician’s sense of professionalism, pride, and competence.
When a complaint is perceived by the physician as unwarranted, such as with a known risk or complication, communication with the patient can quickly degenerate into mutual hostility. A vicious cycle is then established—which causes escalation of all emotions. In such a climate, the possibility of a lawsuit quickly becomes a probability. At this critically delicate juncture, how the physician responds can either set into motion or prevent a chain reaction of increasing hostilities.
It is very difficult, if not impossible, to be objective when you are a party to an incipient lawsuit. Therefore, controlling the course of events prior to the onset of mutual hostility is key to avoiding malpractice actions. The pretreatment or preoperative consultations during which informed consent is obtained can provide an excellent opportunity for the doctor-patient relationship to be firmly established through the sharing of information about the treatment, including its uncertainty.
Much has been written on the therapeutic effects of informed consent. These include less anxiety, increased trust in the integrity of the physician, a smoother clinical course, and better patient understanding should anything go awry. Experience has shown, however, that unless the doctor and the patient fully understand the significance of the interaction, both can be lulled into a false sense of security.
Ideally, the informed-consent process should be viewed as an opportunity to dispel uncertainty, allay anxiety, and help fill the gap between the patient’s lack of information and the physician’s knowledge. By sharing the information, the physician can transform a potentially adversarial relationship into a therapeutic alliance.
Consider, for example, the following statements:
By using the second statement, the implication is clear: “We—you and I—are going to jointly cooperate in doing something to your body that will make you better, but there are no guarantees on how your body will respond.”
Be cautious. In an effort to ease anxiety, your reassurance to the patient may overreach and create unwarranted expectations and an implied guarantee. You may also scare the patient out of essential treatment. Note the difference in the following statements:
Again, by using the second statement, you will project a sense of realistic expectations while remaining reassuring and helping the patient to accept reality.
When dealing with a frightened patient who is using anger to gain control of the situation, as difficult as it is, make a supreme effort to put aside natural feelings of disappointment, anxiety, defensiveness, and hostility. Consider these communication techniques:
Listen well and remain calm. For the patient who is upset or angry, it is best to remain silent until the outburst subsides and the patient has calmed down. This technique of attentive silence often defuses angry people. Communication techniques are a learned skill but a critically important one.
Assess the patient’s level of understanding. This technique is of particular importance when a complicated medical treatment plan is implemented. Tailor your responses to each patient’s level of comprehension. Use graphics if appropriate.
Apologize for the situation. A sincere expression of concern for the patient and regret for the outcome and saying “I’m sorry this has happened” can go a long way in opening lines of communication with the patient. Such an apology, even for the patient experiencing a known risk and complication, can send a message of concern from the physician to the patient without being seen as an admission of fault. Many jurisdictions have statutes that, to varying degrees, permit healthcare providers to offer patients or family members statements of compassion that may not subsequently be used in court as an admission of liability against the physician. It is recommended that you acquaint yourself with the scope of what is permitted in your state.
Be patient with questions. Repeat information when necessary without registering impatience. Suggest that the patient bring a list of questions to the next interview.
Include the patient as a team member. Communicating to the patient the importance of involvement in the treatment plan sets the tone for shared responsibility in the outcome.
Under no circumstances lose your temper. Showing anger is the best way to guarantee a visit to the plaintiff’s attorney.
Remain accessible. One of the worst errors you can make in dealing with angry or dissatisfied patients is to avoid them. Although such a reaction is understandable, avoidance is the surest way to hasten a patient’s visit to an attorney. Hiding from a bad outcome will not make it disappear. As difficult as it may be, the more you talk with and listen to an angry patient, the more likely you are to avoid converting an incident into a claim. Take the initiative. Call the patient often. Make special arrangements for interface time without interruptions.
Establish a two-way rapport with all patients. If it is not possible to establish rapport, suggest that the patient seek another healthcare provider. Offer to make such an arrangement. It helps if you can assure that it is done at no additional charge to the patient.
By creating an atmosphere of trust and partnership, you can relieve your patients’ anxieties and defuse their anger. Without anger or hostility, you and your patients can work together as partners to decide their medical care plans.
By Mark Gorney, MD, FACS, Governor Emeritus, and Richard Cahill, JD, Vice President and Associate General Counsel.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.