YOU MIGHT THINK that the best way for a clinician to reduce the risk of being sued would be to improve clinical practice. But this can be difficult – not least because now most clinical care is delivered by teams and this requires the cooperation of many people to reduce risk.
It turns out that the way a clinician responds to an individual patient during a consultation can be a major risk factor for being sued or complained about. In one US study, only 3% of negligently harmed patients took their case to a lawyer, and only about a fifth of all the cases brought to a lawyer were from patients with clearly negligent harms. As the authors said, “If you have been sued, it is unlikely you did anything wrong, and if you did anything wrong, it is unlikely you have been sued”.
Bunting and colleagues reviewed the evidence and found predisposing factors for being sued, which included (amongst others) miscommunication (mainly related to explaining) and the clinician appearing apathetic.
We recommend 10 tactics to maximise accuracy and minimise patient alienation.
1. Listen carefully at the start of a consultation. It is tempting to want to explore the clinical story as soon as it emerges. This runs the risk of important patient information being suppressed. It is also very good for rapport if the patient’s first experience of talking is that of being fully listened to. GP studies have found that letting the patient finish their opening remarks does not add time to a consultation but it does increase the chance of the most important clinical matter being raised and addressed.
2. Recap the patient’s opening remarks. This leads to early agreement about key facts and demonstrates you have been listening. For example, “So what you are telling me is first x, then y and now z...is that about right”.
3. Find out the full range of issues. Patients may not tell you everything that is important. Some US researchers have found that the phrase “Is there some other concern that you planned to raise today?” is most likely to elicit the full list. The beauty of this question is that it allows other important agenda items (common in GP) or underlying concerns (common in hospital practice) to emerge.
4. Make an early explicit empathic observation. Consultations with at least one explicit expression of empathy produce higher patient satisfaction. For example: “I can see you look a bit worried about this”.
5. Summarise the clinical history before examining the patient. Doing this ensures that you and the patient are in explicit agreement about the clinical story. This enhances both accuracy and rapport.
6. Signposting. Use explicit ‘signposting’ statements, such as “Can you hang on a minute while I just find this letter in your notes?” One US study comparing law suits among family physicians found that those doctors who had never been sued used three times as many signposting statements – and it does not make consultations longer.
7. Explain your examination. Some of our examination protocols are not obvious, for example examining the breasts of a woman with an axillary lump. It takes no extra time to offer a brief explanation of what you are examining (and why). You can keep this up throughout the exam in most cases.
8. Find out what the patient wants to know. Before offering a well-polished mini-lecture by way of explanation, it is useful to find out if the patient has any specific information needs or questions. One thing that is very appealing to patients is to write the questions down on a sheet of paper. This tactic can promote accuracy, vastly increase the chance of the patient’s questions being answered and it does seem to keep explanations focused – in our experience it can reduce the risk of a never-ending series of patient questions in more complex explanations.
9. Explicitly check patient understanding. Asking “Are you with me?” is not enough. In order to be clear, we need to encourage the patient to tell us what they have learned from our explanation. My own practice was something along the lines of: “We’ve talked about a few things and I’d like to see how well I have explained them to you. Can you tell me the main points you have understood from what I have said?”
10. Set a safety net. We often rely on patients to execute a management plan and we need them to report back to us if things aren’t turning out as well as we expected. A recent consensus suggests the following elements to a good safety net:
● Clarify that there is some uncertainty.
● Predict the future course, with timescales, as accurately as the situation allows.
● Specify what symptoms the patient should look for.
● Specify how the patient should get back in touch (GP, A&E, telephone etc). These are not the only consultation behaviours that can enhance clinical effectiveness and reduce medico-legal risk but they are our “big 10” and form a useful bedrock.
Dr Malcolm Thomas is a GP and founder of the training company EPI