Disruptive physician behavior and the risk of malpractice litigation

        Disruptive physician behaviour and the risk of malpractice litigation
              

                                  DR KS Dhillon LLM

                                  

What is disruptive physician behaviour?

The Joint Commission (TJC), USA, defines disruptive physician behavior as behavior which ‘consists of a practice pattern of personality traits that interferes with the physician’s effective clinical performance’ [1]. Disruptive behaviors can be broadly divided in two types, aggressive behaviors and passive-aggressive behaviors.

Aggressive behaviors would include [1]:

• Yelling
• Foul and abusive language
• Threatening gestures
• Public criticism of coworkers
• Insults and shaming others
• Intimidation
• Invading one’s space
• Slamming down objects
• Physically aggressive or assaultive behaviour

Passive-aggressive behaviors include [1]:

• Hostile avoidance or the “cold shoulder” treatment
• Intentional miscommunication
• Unavailability for professional matters, e.g.,
• not answering pages or delays in doing so
• Speaking in a low or muffled voice
• Condescending language or tone
• Impatience with questions
• Malicious gossip
•  Racial, gender, sexual, or religious slurs or “jokes”
• “Jokes” about a person’s personal appearance, e.g., fat, skinny, short, ugly
• Sarcasm
• Implied threats, especially retribution for making complaints

Horty [2], citing case law, defined disruptive behavior as conduct which “disrupts the operation of the hospital, affects the ability of others to get their jobs done, creates a ‘hostile work environment’ for hospital employees or other physicians on the medical staff, or begins to interfere with the physician’s own ability to practice competently”.

The American Medical Association on the other hand defines disruptive behavior “as any abusive conduct, including sexual or other forms of harassment, or other forms of verbal or non-verbal conduct that harms or intimidates others to the extent that quality of care or patient safety could be compromised” [3].

The disruptive behaviour label cannot be applied to a physician who has an occasional bad day leading to bad reaction. Hence a single episode of disruptive behavior does not render the physician a disruptive physician. To err is human and no one is perfect. The disruptive label is usually applied to a physician who has a pattern of seriously inappropriate behavior that is deep-seated and habitual [1].

Risk of malpractice litigation

What transforms a patient into a plaintiff is usually the lapse in professionalism. The patients are aware that effective teamwork, good communication and good collaborative work environment is necessary for safe, high quality medical care. They are also aware that a hostile workplace can seriously affect patient safety. Disruptive behavior can dent the patients trust and confidence in the health care system [4].

What factors put physician at risk of being sued? The answer to this question is crucial to physicians and insurance companies. Some of the factors which increase the risk for malpractice litigation include :

1.Poor communication and loss of trust.

Hickson et al [5] in a study of obstetricians and gynecologists, found that patients of physicians who had prior malpractice claims reported that they felt rushed and ignored and that they did not receive adequate explanations or advice, and less time was spent with them during routine visits as compared to patients of physicians who had no prior claims. The patients of physicians with high-frequency claims had twice as many complaints about their care as compared to patients of physicians with no claims. The most common complaint offered in this study was problems with physician-patient communication.

Beckman et al [6] in a study of doctor-patient relationship and malpractice, found that problematic relationship issues were present in  71% of the litigants. In 32% of the cases the doctor was accused of deserting the patient, devaluing patient and/or family views in 29%, delivering information poorly in 26%, and failing to understand the patient and/or family perspective in 13% of the cases.

Levinson et al [7] did a study to identify specific communication behaviors associated with malpractice history in primary care physicians and surgeons. They found significant differences in communication behaviors of physicians with no-claims and those with claims, among the primary care physician but not among surgeons.

They found that primary care physicians with no claims “used more statements of orientation (educating patients about what to expect and the flow of a visit), laughed and used humor more, and tended to use more facilitation (soliciting patients' opinions, checking understanding, and encouraging patients to talk)” as compared to primary care physicians with claim [17]. Primary care physicians with no claims spent longer time in routine visits as compared to those with claims. They found that the length of the visit had an independent effect in predicting claims status.

2. Lack of empathy in responding to adverse outcome.

The risk of malpractice claims are very high when the doctor lacks empathy in the event of an adverse event.

The Institute of Medicine, USA, in their publication, ‘To Err Is Human ….’ published in the year 2000, found that about 98,000 deaths occur in the United States each year from medical errors [8]. The existing tort system does not address the problem properly and it fails to compensate majority of the patients injured during their medical care [9]. These finding spurred the development of various patient safety movements in the USA.

One of these movements was for “physicians, hospital administrators, and other health care providers to communicate more effectively with patients following an adverse event or medical error, learn from mistakes, respond to the needs and concerns of patients and families after an adverse event, and reach a fair and cost-effective resolution of valid claims”[10].

In 2002 Pennsylvania became the first state in USA to introduce a law which imposed a statutory duty on hospitals to notify the patient (or patient's family) of a "serious event" in writing within seven days of the event. A "serious event" was defined as "an event, occurrence or situation involving the clinical care of a patient in a medical facility that results in death or compromises patient safety and results in an unanticipated injury requiring the delivery of additional health care services to the patient" [11]. The states of Nevada and Florida followed Pennsylvania’s lead and imposed a requirement that patients be notified (in person rather than in writing) by the medical facility after an event that causes serious injury [12].

The nett effect of these notification laws was to force more discussions between health care providers and their patients about errors and adverse events. Some have labelled these discussions as "disclosure conversations” [10].

An adverse event is defined as event which refers to "an unintentional, definable injury that was the result of medical management and not a disease process". A medical error can be defined as "the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim" [13]. A serious event could be an adverse event or a medical error depending on the facts of the case [10].

Besides poor physician-patient communication, other important factors which lead patients or their relatives to sue physicians include [14] :

• The perception of families that the doctor was not completely honest
• Inability of family members to get healthcare personnel to tell them what happened
• The sense among members of the family that the physician would not listen
• The patient or family members being prompted by healthcare professional but rarely a lawyer, to sue.

Investigations show that there is a mismatch between between what the patients wants and what the physician provides after an adverse event or medical error [15]. Patients usually expect basic information regarding the adverse event or the medical error which is often not forthcoming. Patients are also concerned about the financial impact following the adverse event. Some patients expect an apology and assurance that efforts to prevent such errors or events in future, will be put in place. Physicians on the hand do not talk about such errors and events in the way that the patient expects [10]. Disclosure of medical error or adverse event is difficult for the physician because the consequences of doing it badly can be severe. The consequences can include a breakdown of relationships, increased emotional stress, litigation and failure to prevent future errors.
Despite the difficulties associated with disclosure, research shows that ‘if the disclosure conversations are carefully planned, properly executed, and responsive to patients' needs’, the disclosure conversations ‘creates possible benefits for both patient safety and litigation risk management’ [10].

3.Insensitive health care provider lacking in compassion and integrity. 

 One of the major risk factor for malpractice claims is the perception of the patient or the family that the health care provider is insensitive and lack compassion and integrity. Patients who feel valued and when they feel that their opinion matters to health care team, they are less likely to seek legal redress [4].

How to reduce malpractice suits?

A well conceived disclosure policy can lower the number of lawsuits, legal fees, and compensation expenses [16,17]. There is no doubt that any reforms involving patient safety has to include a policy of disclosure. In the USA many hospitals and insurers have adopted disclosure policies [18,19].
The Veterans Affairs (VA) hospital in Lexington, Kentucky USA was hit by two malpractice cases that cost over $1.5 million. Following these expensive suits, the hospital adopted a policy  of disclosure of medical errors, combined with early offers of compensation for the affected patients [16]. Approximately 20 years later their average settlement was $15,000 per claim, as compared over $98,000 at other VA institutions [16].

Disclosure policies also reduce the duration of legal cases as well as reduce legal expenditure.
In 2001, the University of Michigan Health System started a comprehensive claims management program which involved full disclosure and compensation for medical errors. From August
2001 and August 2005, annual litigation costs of Michigan Health System decreased from $3 million to $1 million, the average time for resolution of a claim decreased to 9.5 months from 20.7 months and the number of claims per year decreased from 262 to 114 [16,18]. The saving thus obtained were reinvested in improving patient safety reporting system and in improving patient safety [18]’
From the above examples it becomes clear that malpractice suits can be reduced by providing early disclosure, an apology and a fair compensation.

Last but not least, managing disruptive physician behaviour will help reduce medical adverse event and medical errors. In the USA positive steps have been taken to deal with disruptive behaviour.The Joint Commission in the USA has come up with strategies for dealing with disruptive behaviors [20].
These include, ‘establishing methods to review credentials, regulating clinical privileges, and ensuring the participation of medical staff in the improvement process’ [4].

Rosenstein and O’Daniel has proposed nine recommendations to help  identify and address disruptive physician behavior [20]. The recommendations which can help improve disruptive behaviour and improve staff and patient satisfaction include :

• Recognition and awareness of incidents involving disruptive behaviour
• Commitment to adherence and  maintenance of a well defined professional standard of behavior.
• Development of a universal policy which would define a clear standard of acceptable behaviors to which all healthcare personnel irrespective of their position has to adhere to.
• Structured incident reporting which avoids inconsistencies and is safe and acceptable for employees. 
• Establishment of an oversight committee to investigate and deal with reported incidents in a timely and consistent way.
• Preventive measures should be undertaken after studying the initiating factors so that future incidents can be prevented. 
• Education and training programs for offending physicians. In serious situations behavioral or psychological counseling may be warranted 
• Improving communication skills of disruptive physicians to prevent adverse events.
• Intervention strategies are created to help to minimize the impact of disruptive behavior.

In conclusion, there has been a historic tolerance of disruptive physician  behavior which has led to a failure in appropriately addressing unprofessional behavior and this has failed both the healthcare organizations as well as patients. Education and training regarding  regarding disruptive behavior should start in medical school, continue through residency and emphasis should continue throughout working life. Confidentiality of reporting and commitment to changing disruptive behaviour should be be an important mission of all healthcare institutions and organizations [4].

References

1. Reynolds N T. Disruptive Physician Behavior: Use and Misuse of the Label. JMR. 2012;98:8–19.
2. Horty J. When conduct crosses the line. Medical Staff Monthly. 1998;1: 3.
3. Cohen B, Snelson E. Model Medical Staff Code of Conduct. American Medical Association. 2009.
4. Patel P, Robinson BS, Novicoff WM, Dunnington GL, Brenner MJ, Saleh KJ. The disruptive orthopaedic surgeon: implications for patient safety and malpractice liability. J Bone Joint Surg Am. 2011 Nov 2;93(21):e1261-6. 
5. Hickson GB, Clayton EW, Entman SS, Miller CS, Githens PB, Whetten-Goldstein K, Sloan FA. Obstetricians' prior malpractice experience and patients' satisfaction with care. JAMA. 1994 Nov 23-30;272(20):1583-7.
6. Beckman HB, Markakis KM, Suchman AL, Frankel RM. The doctor-patient relationship and malpractice. Lessons from plaintiff depositions. Arch Intern Med. 1994 Jun 27;154(12):1365-70.
7. Levinson W, Roter DL, Mullooly JP, Dull VT, Frankel RM. Physician-Patient Communication: The Relationship With Malpractice Claims Among Primary Care Physicians and Surgeons. JAMA. 1997;277(7):553–559.
8. L,T, Kohn, J,M, Corrigan, and M,S, Donaldson, eds,, To Err Is Human: Building a Safer Health System (Washington: National Academies Press, 2000).
9. Harvard Medical Practice Study, Report to the State of New York: Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York (Cambridge, Mass,: President and Fellows of Harvard College, 1990).
10. Liebman CB, Hyman CS. A mediation skills model to manage disclosure of errors and adverse events to patients. Health Affairs (Millwood). 2004;23 (4):22-32.
11. Pennsylvania Medical Care Availability and Reduction of Error Act (Mcare) (2002), Act 13, Sec, 30. 
12. Nevada Revised Statutes title 40, sec, 439,835 (2003); and Florida Revised Statutes title 29, sec, 395,1051 (2003).
13. E, Pierluissi et al, "Discussion of Medical Errors in Morbidity and Mortality Conferences," Journal of the American Medical Association 290, no, 21 (2003): 2839, citing J, Reason, Human Error (New York: Cambridge University Press, 1990); and Kohn et al, eds, To Err Is Human.
14. Hickson GB, Clayton EW, Githens PB, Sloan FA. Factors that prompted families to file medical malpractice claims following perinatal injuries. JAMA. 1992 Mar 11;267(10):1359-63.
15. Gallagher TH, Lucas MH: Patients’ and physicians’ attitudes regarding disclosure of harmful medical errors, in Perry MC (ed): Am Soc Clin Oncol Ed Book, pp 254-258, 2005.
16. Clinton HR, Obama B. Making patient safety the centerpiece of medical liability reform. N Engl J Med. 2006;354:2205-8.
17. Kraman SS, Hamm G. Risk management: extreme honesty may be the best policy. Ann Intern Med. 1999;131:963-7.
18. Boothman RC. Apologies and a strong defense at the University of Michigan Health System. Physician Exec. 2006;32:7-10.
19. Wojcieszak D, Banja J, Houk C. The Sorry Works! Coalition: making the case for full disclosure. Jt Comm J Qual Patient Saf. 2006; 32:344-50.
20. Rosenstein AH, O’Daniel M. A survey of the impact of disruptive behaviors and communication defects on patient safety. Jt Comm J Qual Patient Saf. 2008;34: 464-71.