Law and Medicine Under promise and over deliver: Why patients sue doctors Transparency is not going to go away Kent Bottles    As anyone who reads this blog regularly knows, I am interested in the doctor/patient relationship and why it seems to be eroding in American medicine. Perhaps no phenomena are more reflective of that erosion than the malpractice crisis.  Discussions with lawyers, patients, physicians, medical students, and risk compliance officers all point to clear and consistent communication and adequate informed consent as key factors in preventing physicians from getting sued. Physicians are perceived by the public as over-promising and under-delivering when it comes to health care. Perhaps part of the problem is that we have been so successful at treating some acute conditions, that patients live long enough to suffer from the chronic conditions that we do not treat as effectively. It is revealing that the Dreyfus model of career development for physicians labels the highest level of achievement as the Master Physician who is a humbled, reflective practitioner who is an expert who enjoys surprises and publicly engages in learning from personal professional failures.  When physicians over-promise and under-deliver they are perhaps not being so humble. (http://ist-socrates.berkeley.edu/~hdreyfus/pdf/MerleauPontySkillCogSci.pdf As the podcast interview with Professor J. Scott Armstrong of Wharton revealed, this arrogance is a problem for all experts.  Patients want to believe in experts. Joan Didion in her new book The Year of Magical Thinking describes how all her friends believe that they control their lives because they have access to the best, expert physicians. Part of her disorientation and despair from the illness of her daughter and the sudden death of her husband seems to stem from the realization that life can throw situations at you where even the most expert of experts are not much help with the ultimate outcome. I think part of the cause of malpractice is the public's need to believe in their doctors, and their disappointment when bad things happen.  The lack of transparency and communication between physicians and patients only adds to the size of the gap that devastates the family when outcomes are poor. So many things we depend on to create the illusion of control in our lives seem to be failing us.  The local, state, and federal government were not able to protect and save American citizens in the Gulf of Mexico region after Katrina.  Accounting audits do not seem to assure investors that large companies are financially solvent.  The American intelligence community did not prevent 9/11 and misled the country about the existence of weapons of mass destruction.  The food pyramid has been changed.  Nothing is secure and reliable anymore, or so it seems. As a pathologist I have always had a passing interest in forensic medicine, and an article in the Wall Street Journal today (Sharon Begley, Fingerprint Matches Come Under More Fire As Potentially Fallible, WSJ, October 7, 2005, B1) provides yet another example of how the public needs to be wary of expertise.  Unlike the CSI television programs which tout the effectiveness of forensic tests, the reality is more disappointing and less certain.  In a classic example of over-promising and under-delivering, the International Association for Identification, the largest forensic organization, says testifying about "possible, probable or likely identification shall be deemed...conduct unbecoming." And yet forensic science is not 100% certain. Begley in the WSJ article cites error rates of 63% for voice ID, 40% for handwriting, 64% for bite marks, and 12% for hair.  She also reports on a small study where three experts said two fingerprints did not match even though they were the same ones that they had previously testified in court definitely did match.  And of course there is the case of the Portland Oregon lawyer whose fingerprints the FBI erroneously said were found on evidence from the Madrid bombing.  The FBI finally had to apologize in that case even though their handbook states "of all the methods of identification, fingerprinting alone has proved to be both infallible and feasible." The Master Physician knows not to be as arrogant as the FBI is about the accuracy of fingerprints.  We may not all be Master Physicians, but we can emulate them and be as humble as they are.  It just might prevent us getting sued.  And it just might increase the trust that is so sorely missing from many doctor/patient relationships. It just might improve the level and depth of our conversations with our patients. And it just might help us connect with those we treat.   Medical litigation - why does it happen? (harold1812, Thu, 13 Oct 2005) I believe that medical litigation is something we can never get rid of, unless the government policy/law is such that no one can sue, which would be unconstitutional. The tendency to sue stems from an inherent human trait of "fault-finding" . People in whom such a trait is highly dominant would probably be more litigious than others. Those with a less intense fault-finding "phenotype" would probably have a more fatalistic and self-blame attitude. The lack of transparency and poor communication, as mentioned by Kent, are in my view catalysts that intensify the fault-finding response by patients in the event of adverse outcomes. In my view, therefore, it is difficult for the medical profession or even the government to reduce the propensity for patients to sue. Something more influential, like religion, childhood education and even the mass media, is needed to bring about a total societal change in attitudes and beliefs towards medical services and outcomes. You would have realised that the spirit and trend in medical service provision is increasingly mirroring that of non-medical service transactions. People treat medical services like other non-health commodities, and therefore expect "guarantees" in outcomes. This is certainly the wrong direction to go if we want patients to understand the uniqueness of medical services and to lower their expectations of what is acceptable medical standards. Informed consent is a big issue where litigation risk is concerned. How much the doctor should tell is still a nebulous realm in the art of medicine. There needs a national or even a global medical consensus as to how much a patient should know about the risks of any medical procedure. Is such a national/global consensus feasible? Would it be possible for all doctors to follow such a consensus? If we can sort out these two questions, I would foresee that it may be easier for doctors to take informed consent because it would be more difficult for consumers or even the courts to dispute global/ national standards on disclosure. a different take on under promising (greifer, Tue, 11 Oct 2005) While I agree with your assessment of experts, I think there are some simpler reasons why doctors are perceived as over-promising and under-delivering: they apparently don't want to say anything specific, thereby clouding the patient/family's view. This may be because of lawsuits, or it may be that they don't want to kill hope. Or it may be there own discomfort with their inability to save/cure the patient. But it allows those in denial to stay in denial. Anecdotally, I was present when an oncologist tried to explain to the wife of a family member about the lung cancer that had been found in her husband. The oncologist never said "he's going to die in less than 6 months." Never. Not to any of us did she speak so bluntly. What did she say? She said "the prognosis isn't good; treatment at this point is for his comfort, not for life extension." Now, I was capable of hearing that, and of asking enough questions to determine that the answer was that he had less than 6 months to live. But his wife wasn't. She never understood. Neither did his daughter, who believed that the chemo and radiation therapy were to improve his condition. Now, maybe it would be a bad thing to say "you have a 99% chance of dying." But if you don't, your silence overpromises to those desperate for hope. Additionally, apparently, no one ever told the gentleman with lung cancer either. Again, maybe that's on purpose--so he has hope and fights. But I think it was more that everyone was sad and uncomfortable and wouldn't face the truth. Well, as a result, patients continue to live in lalaland, believing that treatment, drugs, interventions are *doing* things to save/cure the patient. Underpromising doesn't help if it's vague. "We don't know; things aren't good" don't help a patient or the patient's family to feel that they've been told the truth. Post Your Comments Composed: Fri, 07 Oct 2005 | Modified : Fri, 07 Oct 2005 Printable Version      Email to Friend