Anthony Painter

Guest post by Stephen Adshead

Claims are often compared to earthquakes – it is nigh on impossible to predict when the next one is going to happen.  People reasonably assume that for those providing a service (e.g. doctors, lawyers and accountants) poor quality, or bad luck, leads to litigation.  Sometimes these are conflated, suggesting perhaps that litigation arises when the tectonic plate of incompetence meets the tectonic plate of misfortune.

Research by Wendy Levinson, Chair of the Department of Medicine at the University of Toronto, suggests that it may be something else.  She reviewed recordings of conversations between doctors and their patients and compared the content and the communication behaviours of doctors who had suffered professional negligence claims (claims doctors) against those exhibited by no-claims doctors. The researchers found that there was no difference in the amount or quality of the information that the no-claims doctors gave their patients; the difference was how the doctor talked to the patients.

According to the research, the no-claims doctors tended to solicit the patients’ opinions; checked their understanding; and laughed and used humour more than the claims doctors.  Additionally, the no-claims doctors spent longer in routine visits (18.3 minutes on average versus 15 minutes).  Indeed, the length of the visit alone was an effective indicator of the doctor’s claim status.  One of the key messages is that the additional 3.3 minutes matters.

Malcolm Gladwell, in his book Blink, drew attention to this research by Wendy Levinson, as well as to a subsequent piece of research by Nalini Ambady, a Harvard psychologist.  Ambady took Levinson’s recordings of doctor-patient conversations and filtered out the content.  The words were filtered and thereby rendered unrecognisable; however, the intonation, pitch and rhythm were preserved.  Without knowing the doctor’s skill level, experience or specialism – indeed without being able to decipher the specific words – Ambady could predict whether a doctor had been sued.  How?  She could do this by reference to the tone of voice of the doctor.  If the doctor’s voice was judged to sound dominant, the doctor tended to be in the claims group; whereas if the voice sounded less dominant and more concerned, the doctor tended to be in the no-claims group.

The reason doctors get sued, according to the research, is not because of poor quality alone, and neither is it misfortune, it is much more subjective than either of those things – trust and confidence.  Patients do not sue doctors they like, or, as Aristotle put it, ‘between friends, there is no need for justice’.  This research has not been lost on malpractice lawyers.  In an article entitled ‘How Plaintiffs’ Lawyers Pick Their Targets’, two top US lawyers said that personal factors such as a doctor’s arrogance or poor bedside manner can weigh heavily in the factors deciding which cases they take on.

For doctors, indeed for all professionals, the message from the research is to spend that extra bit of time with patients/clients and be acutely sensitive to your behavioural characteristics.  Your behaviour, particularly during critical interactions, can dictate whether a potential problem becomes litigious.  In my experience, and borne out by the research, if something unforeseen has occurred, you should empathise with the person concerned, agree the issue to be resolved and agree the remedial action (ideally in that order).  Don’t react combatively; if you meet anger with aggression this will escalate the problem – as one well-respected colleague of mine puts it, “you will soon be engaged in trench warfare, with each side lobbing hand-grenades over the top”.

Stephen Adshead is a litigator-turned-risk manager-turned-blogger.