Can We Reduce Lawsuits with Better Communication?

In Medical Concepts by Jesse KellarLeave a Comment

One concern when practicing in the world of Emergency Medicine is fear of litigation. This fear often leads to defensive medicine practices and over-testing of our patients.1 One of the main reasons patients seek legal recourse, however, is mis-communication, and not under-testing.2–4 In primary care research, better interpersonal communication and increased time spent with patients are shown to decrease litigation risk.5

Well that’s easy, you say. Let’s spend more time with our patients, explaining our clinical rationale more in-depth! Not so fast. With increased emphasis on performance metrics and patient-per-hour numbers, we need to also be efficient if we want to keep our jobs. Increased time spent with our patients is not always possible for the EM physician. The average EM physician sees about 1.5-2.5 patients per hour6 , and research shows that only 28% of an EM physician’s time is spent on direct patient care.7 This means that during a busy shift, you only have about 6-7 minutes per patient. Often in times of peak flow, you could see more than 3 patients per hour, lowering your face-to-face time to only a few minutes per patient. An EM physician’s time is extremely limited, and if we slow down to spend more time with our patients, the waiting room fills up and administrators get restless.

So what can we do?

Communication strategy – Statements of orientation

One of the skills identified in physicians who had lower litigation risk was that they frequently used “statements of orientation” which, according to Levinson and colleague, are statements that “educat[e] patients about what to expect and the flow of a visit”.5 This helps create an outline for what the patient is going to experience during his ED stay. This is a doable skill that is easily implemented into an emergency medicine practice. When we take a few moments to explain, to the best of our ability, what the ED experience will likely look like to our patients, we may reduce fear and anxiety. If done correctly, this one simple communication skill can be the foundation on which we build the entire patient-physician relationship.


Mrs. Smith is a 40 year-old female who presents to the emergency department with atypical chest pain.

Doctor A: “When the test results come back, I’ll come and talk to you.

Doctor B: “We are going to take some tests. With chest pain patients such as yourself, our workup depends on whether or not the tests come back negative or positive. If negative, XYZ will likely happen and you go home in 4-6 hrs. If positive, you will likely need further testing and will have to be admitted to the hospital.

Doctor B didn’t have to spend an extra 20 minutes to do this “orientation statement”, but the extra minute Dr. B did spend may go a long way in building trust, establishing a relationship with the patient, and possibly reducing litigation risk.

This post was copyedited by Eve Purdy (@purdy_eve) and uploaded by Sean Nugent (@sfnugent)


Studdert D, Mello M, Sage W, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293(21):2609-2617.
Hickson G, Clayton E, Githens P, Sloan F. Factors that prompted families to file medical malpractice claims following perinatal injuries. JAMA. 1992;267(10):1359-1363.
Beckman H, Markakis K, Suchman A, Frankel R. The doctor-patient relationship and malpractice. Lessons from plaintiff depositions. Arch Intern Med. 1994;154(12):1365-1370.
Vincent C, Young M, Phillips A. Why do people sue doctors? A study of patients and relatives taking legal action. Lancet. 1994;343(8913):1609-1613.
Levinson W, Roter D, Mullooly J, Dull V, Frankel R. Physician-patient communication. The relationship with malpractice claims among primary care physicians and surgeons. JAMA. 1997;277(7):553-559.
News A. Salary Survey Says Average EP Makes More Than $300,000. American College of Emergency Physicians.—Practice-Management/Salary-Survey-Says-Average-EP-Makes-More-Than-$300,000/. Published July 2009.
Hill R, Sears L, Melanson S. 4000 clicks: a productivity analysis of electronic medical records in a community hospital ED. Am J Emerg Med. 2013;31(11):1591-1594.
Wrenn K, Slovis C. The ten commandments of emergency medicine. Ann Emerg Med. 1991;20(10):1146-1147.

Reviewing with the Staff

After years of medical training, maintenance of certification, and practice, it occurs to me that there remain a few lifelong character-building lessons which are as relevant now as they were when they were first taught in Kindergarten. For example; “The Golden Rule” - that most virtuous of teachings that we should do unto others as we would have done unto us - comes to mind when I think about patient-centered care approaches in the ED of 2016, where it is plain that “[W]e are here to treat, not to judge” [8].

Emergency Physicians must manage multiple patients through their disease experience at an often-hurried pace. Care environments are frequently sub-optimal, and we must convey confidence and ease to allay fear and anxiety. Of course, there are also obligations to improve patient satisfaction and maintain hospital and governmental standards of care. All before lunch, you say…

So, how to marry the competing priorities?

“Institutional tradition and lore are areas that commonly introduce an element of bias. Institutions tend to become inbred. There is often more than one way to approach a specific complaint, and old traditions die hard. Lore must be validated by the scientific method. Always maintain an element of skepticism about old adages or new trends”.[8]

Maybe the tradition needs to in part be recognizing that our Emotional Intelligence is an under-rated tool for delivering high quality strategically-aligned care to our patients. The right care for their illness in the context of their lives, so to speak. It is clearly not all about CTs and MRIs anymore. If we are to treat patients as we would wish to be treated, we need to think about more than just diagnostics and treatment. We must also consider the experience.

Patients today want to understand their care path; they appreciate hearing explanations for delays, having test results reviewed, and seeing that their concerns are heard. It is my opinion that we Emergency Physicians, expertly Emotionally Intelligent, can do 3 things to enhance our patients’ satisfaction without jeopardizing efficiency.

1. Recognize that waiting sucks.
Waiting without a purpose is one of the worst parts of the emergency department experience. If patients (and their families) know what the plan ahead entails, including rough timelines, waiting becomes a less difficult pill to swallow.
Articulate the plan.

2. Recognize abnormal vital signs. The patient’s tone and body language may be the most vital of signs.
We all appreciate that abnormal vitals will not improve without intervention, so why not acknowledge at the outset the elephant in the room? An often forgotten bio-marker is where the patient is sitting in their illness experience on that particular day.

When we apply our Emotional Intelligence to these abnormal vitals, we can activate strategies to relieve patients’ frustration, hostility, fear, and anxiety. Simply labeling those emotions and dealing with them upfront can move the care path forward with more ease. Role modeling a therapeutic and positive tone early, while transparently setting expectations, takes less time upfront, and can result in better patient satisfaction.

Empowering patients by telling them what they are doing well, also sets the stage for patient satisfaction.
A statement like: “Mrs. Smith, I am so glad you have decided to smoke a few less cigarettes a day. You are improving your health”, stimulates a sense of ownership in their health care pathway.

3. Recognize that patients want to be (well) listened to.
Taking a “Mindful Pause”, a moment between when you finish your advice statements, and when you say goodbye to your patient, can go a long way in earning high marks for experience satisfaction. This valuable moment is useful for processing instructions, reflecting on what has been said, and asking clarifying questions. Used strategically, this brief time conveys a sense of importance and value of the individual, and can prevent patients from feeling “not heard”, not assessed fully, or being rushed away.

At the end of a shift, I think we can all return home more satisfied too, when we know our patients have been treated according to the Golden Rule.

Kerrie English BSc., M.D., CCFP(EM)
Emergency Physician and Assistant Clinical Professor, Department of Family Medicine, Division of Emergency Medicine, McMaster University/Hamilton Health Sciences

Jesse Kellar

Jesse is an emergency physician in Michigan with an interest in physician empathy and medical education..

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