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Reducing litigation costs through better patient communication.

Specifically, patients complain when the doctor does not listen or attempts to mislead them. According to the Harvard Medical Practice study, less than three percent of patients who experienced severe adverse events brought forth a malpractice claim. (1)

It is ironic that clinicians who fail to disclose mistakes based on fear of being sued are by nondisclosure increasing the probability of a lawsuit by nine-fold. Communicate and you save time and decrease the risk of litigation.

In 2005, American medical school graduates will have to pass a national test for communication and clinical skills before they can obtain a license to practice medicine. The $975 test sponsored by the National Board of Medical Examiners and the Federation of State Medical Boards, will evaluate how well physicians communicate and interview patients and perform basic assessment procedures. It has been suggested that older physicians also take such an exam to improve the quality of care and reduce malpractice cases.

The principal affliction of the medical community is thinking that physicians cannot improve communications substantially. Communication is the first test of clinician competence. America stopped giving this exam in 1964. To reinstate the exam is a return to old-school values of communication.

According to the Medical Council of Canada, 2.4 percent of their medical students fail this exam and are ineligible to practice. Students can retake the exam up to three times per year. The seven-hour test consists of patient encounters in which the clinician demonstrates the ability to take a medical history, perform physical exams and communicate effectively with volunteers who have been trained to portray real life scenarios.

4 ways to improve communication

1. Focus on the issues

Building on the work of Erik Erikson at Harvard, a well-designed communications plan should have the four E's: Empathy, Engagement, Education, and Enlistment. (2)

Doctors should first exhibit empathy by meeting patients in the waiting room or exam room before the patients undress. In the exam room listen to the patient, look them in the eye, share the back-story, then affirm them by using the patient's own words to summarize.

Use open-ended questions and never interrupt the patient for the first minute. The average clinician interrupts the patient after only 18 seconds. (3)

Engagement sets the groundwork for a partnership between provider and patient. Ask the patient about family and work, and restate major points utilizing the person's language while minimizing technical jargon.

2. Educate the patient

Typical physicians who think they provided six minutes of patient education actually only provided 40 seconds when we play back the videotapes. Most of the 40 seconds is jargon. The majority of patients have zero understanding of the message.

To really educate, one has to probe gently to discover the patient's concerns and fears. For example, the patient might fear the side effects, or they might fear the cost of the prescription. In some areas, patients do not fill 30-40 percent of prescriptions for economic reasons.

Doctors must be clear in defining or describing terms, then ask if the patient understands. Be patient-centric, and consider what the patient is thinking: What has happened to me? When will I have the results? Why has this occurred? What will be done? Will it hurt? Why are they recommending this treatment alternative?

3. Enlist the patient

The doctor should enlist the patient as a collaborative team member in the decision-making process. Patient compliance improves if the patient is brought into the inner circle of designing the treatment plan. Technical facts are of little value if the clinician is viewed as cold or distant--unconcerned with the patient's routines, habits and lifestyle.

As part of the team approach, the clinician should suggest a treatment plan then ask how it fits with what the patient has been thinking. No education or enlistment has occurred unless the patient has questioned prior preconceptions and learned something for the future. Always close a patient visit by reviewing the treatment plan and schedule for future visits. Try to enhance follow-up concerns by telephone or e-mail.

Enhanced patient communication can be cost-effective if patient satisfaction and compliance are improved and if the length of visit is extended only one or two minutes. The patient also is concerned with time management issues, which is why e-mail visits and health education chat rooms can improve both net revenues and patient satisfaction.

The economic efficiencies of workplace redesign and staff training can enable the clinician to spend more quality time with patients. Always consider the four E's: Empathy (that must have been difficult), Engagement (what do you think is causing your problem?), Education (do you understand what we must do together to enhance your health?), and Enlistment (what support can the team give you in handling the treatment plan we designed?).


4. Shared decisions and mutual trust

A number of federal studies suggest that the quality of the doctor-patient relationship has eroded, even for the doctor's long-time patients. (4, 5) Ineffective communication reduces the accuracy of the diagnosis and the utility of the treatment plan.

We need to overcome cultural barriers to communication. You do not want your patients to say: he shows no concern, no warmth, would not answer questions, could not listen. The traditional doctor gathers the facts, but the clinician must also discover the patient's own perception regarding their health and lifestyle habits.

Patients weigh their own internal calculus for the benefits of the treatment plan against the costs in side effects and curtailed pleasurable habits. Communicating collaboratively, and making the patient a member of the care team, can bend the patients' calculus to see the costs, risks and benefits of the treatment plan.

Periodic training sessions for the clinician and staff will help to keep people skills honed and patient-centric. The professional culture of medicine is changing, high-touch is back, and primary care values of collaboration are ascending. Embrace the change, or get run over and lose your patients.

All the software and machines in the world cannot displace the good communicator. Value creation in the minds of the public is returning to continuity of care and primary care values.

For the three decades I have worked with the Institute of Medicine, we have always called for a sustained partnership with patients based on mutual trust. With better communication comes more effective screening, prevention and health education. Better communication improves both clinician satisfaction and patient satisfaction. The result is good economics and good medicine.


1. Kohn and LT, Corrigan JM, Donaldson, MS, eds. To Err Is Human: Building a safer health system. Washington, DC: National Academy Press, Institute of Medicine Committee on Quality of Health Care in America, 2000.

2. Erikson E, A New Way of Looking at Things, New York: Norton, 1987.

3. Eastaugh, S., Health Care Finance and Economics, Sudbury, Mass.: Jones and Bartlett, 2003.

4. Safran D, "Defining the future of care: what can we learn from patients?", Annals of Internal Medicine, Feb. 4, 2003, 138 (3):248-255.

5. Eastaugh S, "CQI and planning," Academic Medicine, November 1999, 70(6): 465-470.


The most common cause of malpractice suits is failed communication with the patients and their families. Explore ways that better communication could lead to fewer malpractice claims and allow health care organizations to reduce litigation costs.

By Steven R. Eastaugh, PhD

Steven R. Eastaugh, PhD, is a professor, School of Public Health and Health Services, Department of Health Services Management and Leadership, The George Washington University in Washington, D.C. He can be reached at 202-462-2730 or

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Title Annotation:Patient Care
Author:Eastaugh, Steven R.
Publication:Physician Executive
Geographic Code:1USA
Date:May 1, 2004
Previous Article:The virtual patient encounter--units of service in the electronic age.
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