Change is coming to Washington, D.C. We don’t pretend to know what that change will look like, and we aren’t going to discuss the politics of everything happening these days. However we, like all of our colleagues in the healthcare space, are watching closely to see how the transition and incoming administration affects healthcare policy. With so much attention directed towards the Affordable Care Act and where it’s headed, we thought this would be a good opportunity to review the evergreen issue of healthcare communications in the context of medical malpractice. As always, this is a brief and casual discussion, nothing in this post constitutes legal/regulatory advice.
Communication, or lack thereof, is involved in a majority of of negative patient outcomes. Almost 60% of sentinel events in 2012 were caused at least in part by deficient communications, according to the Joint Commission. In 2014, that number was 64%. Researchers are quick to note that poor outcomes can’t always – or even often – be blamed exclusively on communication failures. However, there is clear evidence that deficits in this area are a signifiant contributor.
Unfortunately, but perhaps not surprisingly, poor communications is also strongly associated with subsequent litigation. This makes sense. Poor communication between providers leads to negative outcomes, and poor communication with patients leads to misunderstandings that cause frustration. Frustration plus mistakes plus a lack of resolution equals lawsuits. The introduction to a 2003 commentary out of Baylor makes this point:
“Overwhelmingly, the dominant theme in these studies’ findings was a breakdown in the patient-physician relationship, most often manifested as unsatisfactory patient-physician communication. Study participants described the perceived communication problems as follows: physicians would not listen, would not talk openly, attempted to mislead them […] Other communication problems cited included perceptions that doctors deserted patients or were otherwise unavailable, devalued patient or family views, delivered information poorly, or failed to understand the patient’s perspective.”
Indeed, that commentary is titled “Communication Gaffes: a root cause of malpractice claims.”
Using clear, non-technical language to teach patients is one way to minimize problems upfront. Everyone in a specialized profession tends to fall back on the language he or she knows and has been trained with. However, as we can all attest, being on the receiving end of field-specific language can be extremely frustrating. When it’s patients trying to understand their own health, the issue becomes even more dramatic. If they struggle to comprehend a provider’s message, the risk of a breakdown in the relationship and other negative outcomes rises. In a 2015 commentary, Gordon, Deland and Kelly note a study showing “that patients only recalled 40% of the information they were given, and almost half of what they thought they remembered was incorrect.” It is incumbent on providers to be as direct and clear as possible, protecting both their patients and themselves in the process.
On the other end of things, work going back decades indicates that when mistakes are made an apology can reduce the risk of subsequent litigation. Patients want clear responsibility when problems occur. Obfuscation and buck-passing raise suspicion and frustration. Medical groups may be hesitant to apologize when things go wrong for fear doing so will admit fault and lead to legal action. Talk to your lawyers about the best way to handle things, but this isn’t necessarily the case. The article “Apologies and Medical Error” notes that malpractice claims are motivated in part by a desire to understand what happened, and an explanation upfront does reduce the risk of litigation.
All of the above revolves around patient-provider interactions, and the majority of literature and commentary on medical communications focuses on these relationships. However, the “hidden” side of medical communications (at least from the patient’s perspective) is that which occurs between members of the care team. Indeed, communication between caregivers is foundational to communication with patients. Simply put, information that is not passed on correctly leads to breakdowns in care, increasing the risk of adverse outcomes and subsequent litigation.
Part of the challenge here is with increasing specialization and greater numbers of providers involved with any one patient. While collaboration between specialists provides huge benefits to patients in terms of medical knowledge and resources, more people means more places for things to go wrong. The commentary by Gordon, Deland and Kelly linked above references numbers from 2012 (published by the Institute of Medicine):
Every year, the average elderly patient sees 7 physicians (5 specialists and 2 primary care physicians) across 4 different practices. Physicians in private practice caring for Medicare patients interact with as many as 229 other physicians at 117 different practices each year. The average surgery patient is seen by 27 different healthcare providers while in the hospital.
No one can be expected to keep track of all that information individually, but it must be managed. Therefore, each person involved in patient care should maintain the standard of communication followed by documentation. Each practice must have standard operating procedures in place to ensure that all interactions, whether with other providers or patients, are noted. Many organizations recommend the use of checklists to ensure this takes place, and maintaining text or audio messages when appropriate can help the paper trail, as well. First, these measures help minimize the risk of problems such as mis-interpreted messages. Secondly, when problems do arise, they make it easier to track the source. It’s no secret to the readers of this blog that a lack of documentation can be catastrophic when questions about liability come up.
Additionally, good records of even minor interactions can help alleviate patient concerns. As noted above, patients and their families want to know that they are heard and that information they provide reaches the right people on their care team. By having clear communication protocols, care teams can have the confidence that appropriate measures were followed. And, they can project this confidence when speaking with patients. No obfuscation needed, leading to less frustration, hopefully reducing litigation.
We cannot be sure how the regulatory environment will change in the coming months and years with the new administration. Regardless of what happens, clear communications protocols will be useful for practices at the broadest level – remaining compliant with government mandates – and at the narrowest – building relationships with patients and providing outstanding care. In both cases, liability is an issue, so taking some time at the new year to review the SOPs in place could go a long way in continuing to effectively protect your practice going forward.