The Talking Cure: Can Communication Fix Malpractice?

by by Alice Hines

illustration by by Annika Finne

Gertrude Trigo, a 73 year-old Warwick native, first began noticing symptoms around 1998. “I was with my two sisters driving. My older sister said, ‘You know something’s wrong with you.’ We always beat each other up. So I said, ‘Yeah, you too!’” Trigo recalls, laughing heartily. “My sister said, ‘No, your mouth and your tongue. And your hands are never still. I said, ‘I’m having a breakdown.’ I thought I was.”
Trigo says she was first prescribed Reglan to help her digestion by her primary care doctor, Dr. Thomas Millerick, in 1991. When taken for long periods of time, the drug can cause Tardive dyskinesia, a nervous condition provoking sudden, involuntary movements. Trigo had symptoms of Tardive dyskinesia for several years until one day a new pharmacist noticed the side effects.

A friend convinced her to talk to a lawyer. As it turned out, Reglan is meant to be taken for several weeks. Trigo had been on it for over 11 years. She ended up suing her long-term doctor, Dr. Millerick, who never noticed the symptoms. After their last appointment, she never spoke to him again until the court hearing. The lawsuit was concluded in 2006 for a sum of $1.25 million.

The last day of trial, she was hoping he would say something. “I would have liked for him to talk to me. Just to say he did, he admitted it, and it’s over,” she says. But the day of the decision, neither the doctor nor his lawyer showed up to trial. Despite everything, she says, an apology would have helped. “I would have cried.”

Benevolent gestures
In Rhode Island, the “Benevolent Gestures” bill proposed on February 2 by Representative Joseph McNamara, a Democrat from Warwick, would protect any doctor’s gesture of apology or sympathy from being used against him in court.

The bill defines a “benevolent gesture” as any statement or writing “expressing or conveying sympathy, apology, responsibility, commiseration, condolence, compassion, regret, grief, mistake, error or a general sense of benevolence (including the word “sorry”).”

Currently, in Rhode Island and any of the 15 states without apology laws, apologizing could be construed in court as an admission of guilt, and be used to prove negligence. In the US, when something goes wrong during treatment, the only way for a patient to receive compensation is to prove that someone was at fault.

“Health care providers are human beings, and as such want to be considerate of and forthcoming with their patients and patients’ families,” said Rep. McNamara in a press release. “In today’s litigious climate, they often have to prevent themselves from showing compassion. That shouldn’t have to happen.” According to McNamara, the bill will not only give a doctor the protection to communicate with patients freely, but also lower the number of malpractice suits. McNamara cites the University of Michigan as an example. The university’s hospital has cut its number of malpractice suits in half since the it implemented an open disclosure policy in 2001.

A 1994 study from the University of Rochester that examined malpractice court records determined the top four common motives of patients to sue, besides that they all sought compensation: the doctor deserted the patient (32%), devalued patient and/or family views (29%), delivered information poorly (26%), or failed to understand the patient and/or family perspective (13%).

Doug Wojcieszak, founder of Sorry Works, an organization which runs disclosure training programs for doctors and hospitals, confirms that patients often choose to sue because they are angry about being kept in the dark or being treated without empathy. Before founding Sorry Works, Wojcieszak lost an older brother to a medical error. “The judge forced a settlement and it was basically a ‘here’s money now go away’ situation,” he says. “It was a hollow victory, with no emotional closure.”

This “culture of fear,” as Wojcieszak calls it, is reinforced by the fact that doctors are frequently and often frivolously sued. A 2000 study published in Med Care showed that, in a sample group from Utah and California, only 12 percent of malpractice claims involved actual negligence. Of those who were really victims of negligence, only 3 percent filed claims.

“Even when negligence isn’t involved, doctors think they’re going to get sued anyway,” says Dr. Stephen Smith, professor Emeritus of Family Medicine at Brown. “This creates a veil of secrecy and a mentality of covering up.”

And when lawsuits are filed they cost money, whether they are justified or not. Big payouts cause insurance premiums to rise for everyone, and doctors in states like Florida and Illinois can pay upwards of $100,000 per year for insurance, especially in high-risk fields like obstetrics or neurosurgery. Norcal, the largest malpractice insurer in Rhode Island, raised its rates by 43% in 2004.

There are also the harder-to-measure costs of legal fees (on average, malpractice cases in Rhode Island take 6 years to settle) and “defensive medicine,” when doctors order extra tests and exams to avoid being later held accountable for an undetected problem.

If protecting “benevolent gestures” helped doctors be more open with patients, and patients chose not to sue, malpractice costs would decline. So would the cost of health care in Rhode Island. In a health care system that costs $2 trillion yearly, there is much at stake for anything that promises to cut costs.

Teaching reflection

Sorry Works and other patient advocacy groups also hold that communication can prevent malpractice suits even before a mistake has been made. If patients have developed a relationship with their care provider, they are less likely to suspect negligence or attribute blame.

Medical schools are also restructuring curricula to teach clinical and communication skills as early as possible, and to educate future doctors with a more empathetic perspective on medicine. At Brown’s Warren Alpert Medical School, this initiative has resulted in a recent curriculum reform, finalized in 2009. Part of the reform included the creation of a “doctoring course” that teaches clinical skills to first- and second-year medical students. Students work in groups of eight and are co-taught by a physician and a social or behavioral science (SBS) faculty member. “As for our SBS faculty, we’ve had nurses, social workers, medical educators, a Chaplain, a medical writer, and a school psychologist teach in the doctoring course,” says Dr. Julie Taylor, director of the course’s curriculum.

Reflective writing exercises are one of the new tools to help students think about empathy and relate to those they are treating as people as well as patients. Students write on prompts such as: “How do your own personal and professional experiences inform your views of depression?” According to a 2009 study by Warren Alert Medical School professors, these reflective writing narratives “promote deeper and more purposeful reflection and help to promote an empathic stance in medical student–patient interactions.”

A broken system?
Such innovations are relatively new, and some are skeptical as to their efficacy and range. One concern over the “Benevolent Gestures” bill is whether legislation can really change the norms of medical culture. As Wojcieszak points out, Michigan, home of one of the most successful disclosure programs, is not one of the states with a disclosure law. “It has to happen one hospital, one insurance company, one doctor at a time,” he says.

And if things like empathy and effective communication are difficult to legislate, they are also difficult to teach. As Dr. Taylor points out, each doctor and medical student has a different communication style. While one can’t necessarily teach or impose something like empathy, she says, “we can try to create a structure in which students’ natural empathy can show best.”

Others wonder if such a bill could actually backfire. Mark Decof, a personal injury lawyer, does not oppose the bill. “In many cases, even though a patient is grateful that the doctor’s upfront and isn’t angry at the doctor as much, the patient will still explore his or her legal rights,” he points out. It is possible that, when made aware of a mistake, patients would be more likely to sue, even if they couldn’t use the doctor’s words as evidence.

Some doctors also wonder whether a lack of communication with patients is part of larger, structural problems in the health care system. Dr. Vishnu Chundi, an infectious disease specialist in Chicago, believes the problem to be that is that doctors are sued because of adverse outcomes, not necessarily negligence. The one time a claim was filed against him, it was for giving a woman a standard diabetes treatment that had nothing to do with the liver failure that killed her a few months later. While the case never went anywhere, it cost around $100,000 to go to deposition.

“Then horrific things happens and no case occurs,” he says. While Dr. Chundi was a resident, a cerebral shunt he requested was performed on the wrong patient while he was away from the hospital. “The neurosurgeon had never seen my patient before. So he took the patient in bed number 3, like a game show,” Dr. Chundi exclaims, still astounded 17 years later.

The patient who happened to be in the wrong bed at the wrong time was never informed that he underwent a surgery. Both patients were homeless, both had advanced cases of AIDS, and both passed away. Because the patients didn’t have any family to contact, no one was informed and no lawsuits were filed.

“People won’t release information if they think the institution will get away with it,” Chundi says. The current system encourages communication to be valued only in terms of a possible trial. Because compensation is based on how a patient appears to a jury, patients who never make it into the court systems fall through the cracks. Perhaps the lack of communication is more a symptom of a broken system than it is a cause.