One Dozen Things
America is a Litigious Society
Scenario Analysis
In this scenario, a couple is awaiting news regarding the wife’s mother’s surgery. The surgeon arrives, sits down, and informs them that the patient has just left the operating room. In response to the daughter’s anxious questions, the physician gradually indicates that there were adverse events during the surgery and that the patient may have suffered some anoxic brain damage. When the daughter asks if this means a stroke, the doctor is a bit evasive and uses the term “residual deficits.” This term is clearly unintelligible to the daughter, and she reacts angrily, demanding that the doctor “stop with the double talk!” The doctor finally explains that the patient may suffer from some speech loss.
One of the principles of delivering bad news is that it be given gradually. This is what the doctor is doing in this scenario. However, when bad news relates to a probable medical error, the family members may perceive a prolonged explanation as being indirect. The doctor should have avoided medical jargon like “residual deficits” and been more forthright in explaining the complications and the potential outcomes.
Adverse outcomes and complications will occur at some point in any medical practice, especially those involving procedures or surgery, and do not necessarily represent medical error. Nonetheless, American patients and their families are probably more inclined than those in other countries to sue physicians and hospitals when outcomes are bad.
Recent experience has shown that when complications occur, whether due to error or not, the honest presentation of accurate information to the patient or family in a timely manner is not only appreciated but often prevents legal action. This practice demonstrates professionalism and good communication, factors that have been shown to decrease the incidence of lawsuits brought against physicians.
This scenario ends somewhat abruptly, and it is expected that there would be additional conversation between the physician and the patient’s family. During that time, the physician would hopefully express regret and offer sympathy for the patient and her family. Too often, regret and sympathy are withheld in the belief that to offer them acknowledges responsibility for a medical error and that such statements could be used subsequently as part of litigation. Again, recent experience indicates that this is not necessarily true. In fact, legal provisions are being developed to prevent expressions of sympathy and regret from being used against physicians.
Whenever bad outcomes occur, senior medical and administrative staff, particularly risk managers, should be notified, and all related events and conversations should be meticulously documented. This includes cases in which patients or their families simply express dissatisfaction with outcomes.
