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Enhanced communication to reduce liability

By James W. Saxton, Esq. & Maggie M. Finkelstein, Esq.

With the continuing pressures of obtaining professional liability insurance, it is appropriate to re-examine what is causing both the frequency of claims and more importantly the severity of claims. Many would say it is the latter (how much claims cost either in settlement or verdict) which is driving the professional liability premiums up. There is one strategy which can significantly reduce both and can be a practice enhancer as well: strong active communication. Not the everyday, “I’ll try to be nice today” communication, but real focus on practice-wide communication strategies.

Studies reveal a distinct correlation between communication issues and malpractice claims. For instance, Gerald Hickson, M.D., has shown that the quality of physician-patient communication was a primary factor which led patients to sue following perinatal injuries. In addition, in a study conducted by Wendy Levinson, M.D., certain communication behaviors of physicians were associated with fewer malpractice claims.

Accordingly, enhanced communication and service excellence practices can act to reduce physicians’ liability exposure. Active communication with patients will bring patient expectations in line with reality, reduce patient anxiety and result in a reduction in both the frequency and the severity of professional liability claims. Good physician-patient communication also enhances patient autonomy, promotes a better exchange of information, helps to build trust and to avoid medical errors and litigation, involves a patient in his or her own care, and enhances patient health outcomes.

At a minimum, this raises the question, if good communication habits have such profound effects on patient health and physician liability, why are we not forming and committing to good communication skills? No one chooses to be a poor communicator with patients, their family and friends, or staff. However, practicing good communication skills is not as easy as it seems. It is extraordinarily difficult, as good communication involves personalities, styles, habits, body language and patience. Better communication involves being aware of both verbal and non-verbal communication in your day-to-day activities. It is about habits and can be an overwhelming task, but with an organization-wide commitment by staff and physicians, you can break old habits and form and maintain good communication habits and skills that lead to a reduction in liability exposure, while, at the same time, enhancing your practice and the health of your patients.

It is time to make good communication part of your culture. Discuss good communication skills and customer service excellence when hiring staff. At orientation, continue to reinforce the importance of good communication and service excellence and provide training on the same. Evaluate communication issues and provide staff and physicians with solutions to commonly faced communication problems. Use communication as an evaluator in your analysis of staff compensation, providing staff with an incentive to communicate effectively with patients and other staff members and physicians. Communication must be evaluated and attacked at all levels: managers to staff; staff to staff; managers, staff, and physicians to patients and family; physicians to physicians and staff. These levels are all connected. Poor communication is contagious. In this respect, physicians, as leaders, should serve as examples. Set a high threshold, never lowering your standards. We must discard the “busy card” and all other excuses for not taking the time to communicate effectively and respectfully.

Good physician-patient communication involves evaluating and forming habits in several verbal and non-verbal ways: posture, body language, tone, word choice and pace. Such verbal behaviors as empathy, reassurance and support, patient-centered questioning, explanations, positive reinforcement, humor, friendliness, summarization and clarification have all been linked to positive health outcomes as explained by Beck and others in a recent article titled “Physician-Patient Communication in the Primary Care Office: A Systematic Review.” The same article explains the link of nonverbal behaviors to positive health outcomes such as head nodding, leaning forward and uncrossed legs and arms. Even a physician’s appearance can affect physician-patient communication. Other tips for improving physician-patient communication include using plain language, eliciting information with questions, and silence when appropriate.

Once we have managed to develop good communication habits, we must continue to do so and keep the commitment alive. Besides the expected on-going education and training, incorporate reminders to staff with appreciation days and consider incorporating communication and service excellence commitments into a practice motto or mission statement. Signs can be effective as well. An effective tool to help with communication efforts is scripting. For example, when a staff member answers a telephone, instead of “Hold please,” a script similar to the following would initiate a pleasant conversation with the caller-patient: “Good Morning, Dr. Smith’s office. Pam speaking, may I help you?” Such scripts reinforce the commitment to good communication and service excellence on a consistent basis.

Sometimes situations do develop where communicating with a patient can be rather stressful and more difficult than the average situation. If we anticipate situations, such as diffusing an angry patient or disclosing a medical error, and develop appropriate communication skills and behaviors now, we will be prepared to effectively manage both situations. By communicating effectively and managing these situations, it can help to reduce liability exposure.

Diffusing the Angry Patient or Family

Malpractice claims are often initiated because a patient is angry or they are angry and their anger is not resolved. We can reduce the number of times that an angry patient visits a lawyer and files a malpractice claim if we effectively manage this type of situation. It is import to let the angry patient vent. Be mindful of your demeanor and body language at this time. You need to be empathetic. You also need to hear what the angry patient is saying to you – be a good, active listener. This will allow you to respond to the angry patient with an effective plan to resolve an angry patient’s problem.

Disclosure of an Adverse Event

When an event occurs, whether adverse or not, we must consider what we can learn from the event. Addressing and analyzing events can help us to reduce liability exposure by implementing corrective measures and habits.

When an adverse event occurs, it raises the issue of disclosure, whether a medical error has resulted or not. Patients want to be informed of medical errors and we can use medical errors and even near misses to prevent future similar occurrences. It is important to understand that, as the Institute of Medicine reported in 1999, often medical errors are not due to the actions of incompetent physicians or staff, but rather are the result of the structure and organization of the health care industry. For this reason, the dynamics of our organizations may need to be continuously re-examined. We need to see that providing the right amount and type of information in the right way and by the right people can benefit the patient from a health perspective and the health care provider from a liability perspective. Early studies such as that performed by Kraman and others show that disclosure has many beneficial effects.

Positive “event management” is essential. Creating procedures and policies for the disclosure of adverse events is helpful. Typically, the physician should have a timely discussion with the patient and/or family in an empathetic manner, providing an apology, yet certainly without admitting liability, disclosing the nature of the adverse event. Provide the patient and/or family with the pertinent information of what happened and how, as well as the plan for the continued care and treatment of the patient. This needs to be carefully thought out and you should collaborate with your counsel and/or risk manager. Also, tell the patient and/or family who to contact if additional questions arise, providing contact information. Explain that there will be an investigation of the occurrence and that such an investigation may take some time. There is no need to act in a defensive manner at this time. Remember one of the most frequently cited reasons as to why patients go to lawyers is “to get information about their complication.”

When an adverse event is combined with poor communication, a patient’s anger may lead to a lawsuit. By disclosing the right information, in the right way, by the right person, a patient and/or family will not have the perception that they were misled or that a cover-up occurred. Often times, it is these types of perceptions that lead a patient to sue. Further, remember this is our opportunity to create evidence that one may attempt to use against us or evidence that could be used by us if the matter continues to litigation.

To be successful in forming good communication habits, it takes a willingness to break old habits and a commitment to form new ones. It is a topic that should be addressed when hiring, at orientation, and with continued education and training. It will take some hard work to continually motivate ourselves and staff, working from a threshold that insists on good communication among staff, colleagues, and with our patients. By doing so, the results can be positive for patients and physicians alike resulting in better health outcomes, better physician-patient relationships and better working environments, while reducing liability exposure to frequent and severe claims or lawsuits.

Good communication, or what we call “Communication Plus,” can reduce liability exposure in half. It can significantly reduce frequency and will impact 100 percent of claims as to severity. It can also enhance one’s business or practice. The time to start is now. The data supports it, and it is time to start the hard work.

James W. Saxton, Esq., is Chairman, Healthcare Litigation Group at Stevens & Lee. Maggie M. Finkelstein, Esq., is an Associate in the Healthcare Litigation Department at Stevens & Lee.

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