Whilst many patients experience adverse events, harmless or harmful, not all proceed to make negligence claims. In his exploration of why patients pursue litigation against their doctors, published in a paper titled How can I avoid being sued?, Daniel Sokol categorised the reasons into the following failings:
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- Failure to properly examine the patient
- Failure to diagnose the patient’s condition
- Failure to refer to an appropriate specialist
- Failure to give competent advice
- Failure to prescribe the right treatment
- Failure to treat or operate competently
- Failure to interpret tests correctly
- Failure to monitor a patient
- Failure to follow up the patient when necessary
In his article titled Seven reasons family doctors get sued and how to reduce your risk, Richard Roberts also identified the following frequent reasons why family doctors face negligence claims:
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- Failure to diagnose a disorder early
- Failure to hand-off
- Failure to obtain informed consent
- Failure to treat within limits of competence
A poor physician-patient relationship is also a major reason why patients decide to sue their doctors after patient safety incidents. This theme was discussed by Marlynn Wei in her paper titled Doctors, apologies, and the law: an analysis and critique of apology laws; there, she defined a poor patient-physician relationship as one in which the patient felt the doctor did not listen, did not speak openly, was misleading, or did not warn the patient sufficiently against their risks. Other factors she found that drove patients to litigate included:
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- A desire to get the physician to acknowledge negligence
- Feelings of anger, bitterness, betrayal, or humiliation
- Feeling of being ignored
- Wanting ‘the doctor to know how they felt’
- Dissatisfaction with the explanations they were given
- Desire for revenge, disciplinary action, and punitive measures
The decision by patients to pursue negligence claims against their doctors is however also driven by factors beyond the actual harm or injury they sustained, or the standard of care they received. This is illustrated in a study of 227 patients and their relatives published in a paper titled Why do people sue doctors? A study of patients and relatives taking legal action. The authors of the paper, Charles Vincent and colleagues, identified the following additional reasons why patients may litigate:
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- Insensitive handling and poor communication after the incident
- The desire ‘to prevent similar incidents in the future’
- The desire for compensation
Gerard Panting, in his article titled How to avoid being sued in clinical practice, also explored this theme and further defined the types of behaviours the physician demonstrates after the adverse event that drive patients to litigate. Some of the behaviours he listed were prevarication, evasion, and refusal to acknowledge fault. Gerald Hickson and colleagues, in their paper titled Patient complaints and malpractice risk, highlighted other behaviours which prompt patients to sue physicians, and these included disrespect, rudeness, not listening, and not returning calls.
Beyond the factors explored above, there are also specific physician and specialty characteristics that seem to increase the chances of litigation. Gerald Hickson and colleagues for example, in their study of 645 physicians, found that 8% of them with the highest litigation risk tended to be male surgeons who had a high volume of clinical activity. Anupam Jena and colleagues, in their paper titled Malpractice risk according to physician specialty, also found that the highest litigation claims were against neurosurgeons, cardiothoracic surgeons, and general surgeons, and the lowest were against family medicine doctors, paediatricians, and psychiatrists.
In the next post, we will review the deterrents against litigation following patient safety incidents.
Shortcuts and Pitfalls 