Issue 5 / 18 February 2013

IT doesn’t matter how many times a well-meaning expert tells us we’re more likely to be struck by lightning than to be eaten by a shark. Most of us will still be more afraid of the big fish than we are of a summer thunderstorm.

And so it is with medical litigation. Despite studies suggesting doctors overestimate their risk of being sued, the threat looms large for many, with potential consequences for their own wellbeing and the quality of care they provide.

Research in Australia and elsewhere suggests the fear of being sued can bring some benefits: improved communication with patients, for example, or better systems for record keeping and follow-up.

On the downside, though, it has also been linked to so-called “defensive medicine”: excessive ordering of tests and imaging, overprescribing of medication or avoidance of certain kinds of patients and procedures.

In that context, what are we to make of an article in the American Medical Association’s (AMA’s) newsletter, American Medical News suggesting doctors might be better able to protect themselves if they could identify pre-emptively those patients who were more likely to sue?

I should stress that the article is not suggesting doctors decline to treat such patients — although it does include advice on the ethical termination of a doctor–patient relationship — but rather puts forward strategies to minimise risk.

Communicating clearly, encouraging questions, apologising if things go wrong, and carefully documentating conversations, treatment and clinical evaluations: it’s common sense, really.

The article also looks into just how doctors might go about identifying those potential litigants, busting some myths along the way.

It cites a 2012 US study discussing the “unconscious bias” that led physicians to believe socioeconomically disadvantaged people were more likely than other groups to sue.

I’m not sure how common that view is here, but in the US the opposite was shown to be true. People on low incomes were actually less likely to sue, perhaps because of restricted access to the legal system.

The AMA article lists a number of warning signs that could indicate a potential litigant, including “very demanding” behaviour, begging for a particular treatment, seeking a diagnosis outside the doctor’s area of expertise, or complaining about “mistreatment” by other doctors.

Now, if all that leads to patients receiving clearer communication from their doctor, and more comprehensive medical records — fine. But there does seem to be a risk certain types of patients could be marked — consciously or otherwise — as “troublemakers”, with potentially negative consequences for the standard of care they receive.

Sydney woman Pat Skinner might have had some views about patients being categorised in this way, given the treatment she received back in 2001.

After gastrointestinal surgery at a Sydney hospital, she reportedly struggled for 18 months to get either her specialist or her GP to take her postoperative pain seriously, despite it being so severe she would scream when her car went over a bump.

“I did complain and I was told, you know, it takes time”, she later told the ABC’s 7.30 Report. “This was the thing I kept hearing. It takes time to recover.”

She was prescribed antidepressants and referred for counselling. It was only when she eventually insisted on an x-ray that the pair of 17 cm long scissors left behind during surgery was discovered in her abdomen.

That’s an extreme example, of course — and one that made headlines around the world at the time — but it does illustrate the risk that assumptions made about a patient can negatively affect the standard of care they receive.

There’s nothing wrong with doctors seeking to protect themselves, and this can sometimes lead to improvements in clinical care, but defensive medicine and the categorising of patients as too demanding or as “complainers” carry their own risks too.

This is starkly illustrated by Pat Skinner’s words: “I think they thought that maybe I was making a fuss.”

Jane McCredie is a Sydney-based science and medicine writer.

Posted 18 February 2013

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3 thoughts on “Jane McCredie: Marking patients

  1. Max Kamien says:

    Did any of Pat Skinner’s attendants actually place their hands on her post-operated abdomen?
    The laying on of hands is one (increasingly neglected) method of avoiding litigation.

  2. Dr. ARC says:

    We live in a litigious society created in no small part by a few voracious “ambulance chasing” legal professionals. It is incumbent on all medical professions to practise the science of medicine with the utmost care and adopt the principle of “do no harm”.
    If you practise a standard of medicine which is acceptible to peer review you should have little fear of reprisal.

  3. doctor says:

    Everyone makes mistakes sometimes, even doctors. Bad outcomes also happen to everyone. Busy, tired, communication barriers etc etc. No one can practice to a gold standard every moment of every day.

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