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Truthful Doctors May Prevent Malpractice Suits

 |  By jcantlupe@healthleadersmedia.com  
   February 16, 2012

When it comes to malpractice, it seems physicians have developed their own case of "white-coat syndrome."

Their worries about malpractice litigation might actually be making it worse, and hurting healthcare in the process. That's because doctors are keeping their mistakes under wraps, or performing too many tests or costly procedures to avoid a trip to the courthouse.

Instead, physicians should be opening lines of communication with patients, admitting when something goes wrong, and curtailing excessive treatments.  They can fight the tort war one step at a time from the moment they pick up that stethoscope.

Two recent reports express urgency about the need to change.

A recent HealthLeaders Media Industry 2012 survey  (PDF) shows that a whopping 58% of physician leaders said they ordered a test or procedure for primarily defensive medicine reasons in the past year.

That figure is all the more stunning because only 2% reported ordering a test or procedure for primarily revenue-related reasons.

"We order too much, (practice) too much defensive medicine, keep patients in hospitals too long," Douglas Garland, MD told HealthLeaders Media. He is medical director of the MemorialCare Joint Replacement Center, part of the 1,006-bed MemorialCare Health System in Long Beach, CA.

Results of a recent survey published in Health Affairs revealed that as many as 20% of physicians won't tell patients about errors because of doctors' fear of malpractice litigation.  As many as 55% exaggerated or failed to tell patients something about their health because, in part, the physicians didn't want to upset their patients. At least 1 in 10 physicians told patients something untrue in the past year.

"When we noted that 20% of physicians said in the last year they had not fully disclosed an error or a mistake to a patient because they were afraid of a lawsuit, it certainly could have been any error they were referring to," Lisa I. Iezzoni, MD, M.Sc, a professor of medicine at Harvard University and director of the Mongan Institute for Health Policy at Massachusetts General Hospital told HealthLeaders Media.

"We don't know from the survey results; we didn't ask that. But you can imagine the errors span a continuum of severity. Some errors may have caused minor discomfort or no discomfort whatsoever. Other errors can be life-threatening. It's hard to know exactly what that 20% remembered; they weren't asked that question," she says.

While physicians' statements are not always linked to malpractice concerns, doctors  are aware that the possibility of litigation is always a factor. Indeed, more than 60% of physicians aged 55 and older have been sued at least once, according to the American Medical Association.

Physicians also know how costly—financially and emotionally—la malpractice suit can be. In a policy report issued at the end of 2011, the American Medical Association stated that the average cost of defending a physician against a medical liability claim was $47,158 in 2010. That's an increase of 62.7% since 2001. Still, 63.7% of all closed claims against physicians were dropped, withdrawn, or dismissed.

For physicians, the local malpractice environment sometimes influences their "attitudes and behaviors," including how honest they are about errors, according to Iezzoni.

Her study showed that cardiologists and general surgeons were most likely to report never having told patients an untruth in the previous year, while pediatricians and psychiatrists were least likely to report never having told untruths. 

More physicians practicing in universities or medical centers, (78.1%) completely agreed with the need to report all serious medical errors than physicians in solo or two-person practices (60.5%).

The reason appears simple: small practices don't have as much legal leverage, so physicians from these practices with less clout are also less likely to be as forthcoming.

But many experts agree that concealing medical errors, being dishonest, or practicing overly defensive medicine isn't the way to thwart malpractice litigation.

Research shows that the more likely physicians are to discuss errors with patients, the less likely they will be sued, Iezzoni says. Perhaps it makes the doctors seem less god-like and more human, so patients can relate to them.

"Some physicians may wonder about revealing errors to certain patients if no serious harm resulted from them. I know a lot of physicians are reluctant to talk about medical errors. But the more open you are in talking about errors, the less likely patients are going to pursue litigation, and the more likely you are going to gain the trust of patients, and be able to move forward in a therapeutic way," Iezzoni said.

Among other things, informing patients about the errors can "reduce anger," she adds. "If you talk openly to patients in situations where errors happened, it makes patients understand better what happened, why it happened and makes them less likely to pursue litigation as a solution to it."

Iezzoni notes that academic literature stretching back to the 1990s has shown that  "openness" in communication between physicians and patients has potentially positive impacts on avoiding malpractice suits.

As for Iezzoni and her colleagues, their biggest concern wasn't simply the malpractice issue. It was the totality of honesty in communications between physicians and patients, for whatever the reason.

Why aren't doctors always upfront with patients? "I think there are probably as many reasons as there are doctors and patients," she says.

In our conversation, she listed some possibilities. "Maybe doctors don't want to upset patients. Maybe doctors feel if they tell patients the truth about their prognosis, it's going to cause the patient undue amount of stress. Maybe doctors aren't trained to talk to patients about different truths," Iezzoni says. "Maybe doctors don't feel they have enough time in 10 to 15 minutes to have a complete conversation about a patient's prognosis."

"Patients themselves are going to have different preferences for how open they want doctors to be," she adds. "There are certain patients who may say, ' I don't want to know everything, just tell me what to do, give me the highlights. Then there are those who want to be frank and open and have a complete discussion about what their prognosis is. They want to know everything."

Iezzoni noted the ABIM (American Board of Internal Medicine) Foundation's Charter on Medical Professionalism, published in 2002, urged doctors to be "open and honest" with patients and to disclose medical errors promptly. With this latest survey, it doesn't appear physicians are following the guidelines or standards of communication laid out by the foundation, she conceded.

With the high percentage of defensive medicine practiced, as well as physicians trying to hide potential errors to offset potential malpractice litigation, Iezzoni notes, "We need to do a lot more work from the patient and physician side to get to the point there is more openness and frank discussion about the patient's health and patient's prognosis."

"Patients need to feel comfortable going into the doctor's office, and saying, 'Look I want to have a conversation about how I want you to talk to me about my health.'"

Engaging in that conversation with complete honesty could be a first step toward avoiding a malpractice suit.

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Joe Cantlupe is a senior editor with HealthLeaders Media Online.
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