Ellen C. Annandale The malpractice crisis and the doctor-patient relationship

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1 Ellen C. Annandale The malpractice crisis and the doctor-patient relationship Abstract The current medical malpractice crisis in the United States provides an opportunity to explore the medical profession's response to threats to its autonomy of practice. Drawing on commentary in medical journals, I reveal the way in which physicians, and some lawyers, have explicitly targeted doctorpatient interaction as a seat for malpractice reform. A good deal of attention is being given to developing a better rapport with patients, providing information and involving the patient in decision-making about care. Such reforms should be welcomed. But any benefits need to be weighed against the possibility that changes in the doctor-patient relationship may also have a covert purpose; as reform is focused at the interactional level, attention is drawn away from medical practice to the patient as the source of negligent injury. This can have negative consequences for patients who, in responding to this interactional gloss, may fail to gain compensation for the real errors of medical practice. Introduction The notion of 'crisis' is endemic to contemporary discussions of the U.S health care system. It is, however, only in recent years that it has been associated with discussion of the physician role. Turbulent changes in the delivery of services such as the increasing corporatization of care, the development of investor-owned chains, and the diversification of care out of hospitals into free-standing alternatives are no longer prompting only sociological and other academic interest in the physician role; physicians themselves are increasingly recognizing threats to their own 'professional dominance'. The position of physicians in the U.S health system has, of course, been the subject of recent and somewhat acrimonious debate in the social sciences (Freidson, 1985; McKinlay and Stoeckle, 1988; Starr, 1982). Sociology of Health & Illness Vol. 11 No ISSN

2 2 Ellen C. Annandale McKinlay and Stoeckle (1988) and others have argued that physicians are undergoing a process of proletarianization associated with the expansion of capital into health care and the increased bureaucratization of services. Freidson (1985:32), in contrast, argues that 'there is no reason to beheve that medicine's basic position of dominance will change.' Nevertheless, he does predict that medicine will have a greater struggle to maintain its voice at the level of policy making and its privilege of self-regulation. While it would be a mistake to underestimate the differences inherent in these various predictions, for the purpose of this discussion the important thing to note is that there is, nonetheless, agreement that physicians' autonomy and control is being eroded. Further, there is some consensus that decreases in physician autonomy can be potentially beneficial for patient care. This paper explores one particular manifestation of the health 'crisis'; the dramatic rise in malpractice litigation. I will argue that malpractice can be seen as an indicator of threats to professional hegemony and selfcontrol. It is also leading to reforms in the doctor-patient relationship where calls are being made for the patient to be given more information, and an active role in decision-making about treatment. In this way, malpractice can be seen to hasten some of the very changes that sociologists have argued are essential to improvements in patient care. However, 1 also aim to show that there is a potential for using reforms in the doctor-patient relationship as explicit litigation reduction strategies. Thus, any benefit accrued at the level of increased patient satisfaction must be considered alongside its possible use to mask errors of clinical practice. The data that I will draw upon to make this case is commentary about malpractice in medical and dental journals. This is dialogue from within the professions, physicians and dentists talking to each other about ways to deflect malpractice suits brought by their patients. By revealing the way in which physicians attempt to restore their previously unquestioned mandate to judge the success (or otherwise) of their treatment of patients, this commentary provides an entre into the way in which the medical and dental professions repair themselves under attack. Further, it paints a vivid picture of professional models of patient behaviour, providing further insight into the dynamics of doctorrpatient interaction. In addition to medical commentary I will draw upon lawyers' advice to physicians published in medical journals, legal debates about malpractice law and the small body of sociological discussion on malpractice'. In this paper I focus upon the U.S where medical malpractice has incited much interest since the dramatic rise in litigation in the 1970s. Britain has a significantly lower rate of litigation (Rosenthal, 1987). However, we are beginning to see increased use of the courts to settle grievance and there is incipient state and consumer interest in regulation of medical practice which is leading the General Medical Council (which has the main responsibility for hearing complaints against physicians in Britain) to re-

3 The malpractice crisis 3 examine its disciplinary responsibilities. This, coupled with the increasing turn to private health and health insurance, suggests that Britain may have much to leam from the U.S experience. Medicid Malpractice In bringing a case of malpractice a plaintiff must prove that (1) there was negligence, (2) that negligence caused or contributed to damage or injury, and (3) that there was damage or injury (Lenke and Nemes, 1985; Blumstein, 1982), Negligence or malpractice involves the physician's failure to act in accordance with prevalent professional standards (Blumstein, 1982). According to the American Medical Association's (AMA) Committee of Medicolegal Problems (1963:695), the physician must 'possess the skill and exercise that are currently possessed and exercised by other reputable physicians in the same or similar locality'^, must 'continue professional care of a patient as long as it is needed', and 'undertake any diagnostic or remedial procedure on the patient only with expressed or implied consent.' Malpractice involves a breach of these standards. Medical malpractice reached visibly critical proportions in the U.S. in the mid-1970s. Prompted by disputes over huge increases in physicians' malpractice insurance premiums, and the threatened withdrawal of carriers from the malpractice business, 1975 witnessed a series of 'doctors' strikes' where, in some States, physicians withheld services and hospitals were forced to close their doors and/or reduce the services that they provided (Somers, 1977; Schwartz, 1982). State legislators acted swiftly and there was a 'great outpouring of legislation [which] was mainly aimed at strengthening the defense of physicians and hospitals against claims, reducing potential legal liability, and...assuring the availability of insurance coverage to health care providers' (Somers, 1977:194). This included the introduction of pre-trial screening, limitations on the size of total awards by many states (usually to $5(X),0(X)) and reforms relating to expert testimony and the burden of proof. These tort law reforms provided some respite, but the number of malpractice suits filed and the cost of insurance has continued to rise throughout the 198O's (Robinson, 1986), accompanied by an acceleration of debate within medicine and allied professions (Rosenthal, 1987)^. Of interest is the way in which physicians have responded to the increased premiums that they are having to pay and the increased litigation that they are experiencing. The medical profession has been quick to point to the legal system as a prime cause of the rise in litigation, in particular to an increased emphasis on medico-legal training for attorneys (JAMA, 1963), the contingent-fee system and the collateral source rule"* (Epps, 1986). In popular debate, references have been made to the greed of lawyers who, it is said, are seeking out patients and touting for business. At

4 4 Ellen C. Annandale the same time, as Bradford (1986: 32) points out, 'expert testimony is big business these days.' Physicians are commanding large fees working independently (in the case of those with legal degrees) and for organizations which provide expert testimony for lawyers. In order to understand physicians' particular response to the 'malpractice crisis' we need to appreciate the cultural and economic effects that it is having upon the profession. Loss of social status through subjection to a malpractice suit is a severe blow to professional pride. Two comments from physicians in response to the threat of malpractice exemplify this: My father was a doctor. His patients saw him as being next to God. Never again will people revere doctors to that extent, (quoted in Ritchey, 1979:165) Doctors never felt like the underclass of society. We were always the upperclass of society. And now there's this crdzy schizophrenia in medicine today where, on the one hand you're an elite group...you've achieved tremendous amounts of skill and ability. On the other hand, you want to walk around with a bag over your head, when you open up the paper and see one of your friend's name in it for a big lawsuit, you feel terrible. (WGBH, 1986:13). It is a rare physician, it would seem, who has not been associated in some way with a malpractice suit (Harrison et al., 1985; Danyo, 1980). The AMA's Socio-legal Monitoring Service reports that the average incidence of claims per 100 physicians increased from 3.3 before 1978, to 8 per 100 from 1978 to 1983 (Havighurst, 1984). Family practice met this average, while medical specialties experienced 4.5, and surgical specialties 11.8, claims per annum (Geyman, 1985). At the economic level the medical profession claims that malpractice insurance is biting hard at physician incomes. It is, in fact, difficult to estimate the cost of malpractice insurance to physicians as precise data are unavailable (Somers, 1977). Between 1975 and 1983, premiums increased in cost by 80 per cent (Geyman, 1985). Many physicians paid premiums of $20,000 a year in 1982 (Campion, 1984). However, the AMA estimates that the average physician spends only about 4 per cent of his or her pre-tax income on insurance (Posner, 1986). In real terms, then, the profession's outcry at the cost of insurance seems misplaced. The purpose of this paper is to discuss the implications of the malpractice crisis for patient care at the micro level of the doctor-patient relationship. But it is also worth documenting some broader effects at the level of the provision of care to consumers. First of all there is cost pass-on in the form of higher costs for services and for third party insurance (Hershey, 1982; Tancredi and Barondess, 1978). Second, the economic cost to physicians can lead to a reduction in services (Epps, 1986). This has been notable in the so-called high risk specialties like obstetrics where physicians are being forced out of, or are choosing not to go into, the field (George and

5 The malpractice crisis 5 Quattrone, 1984). Riffer (1986) cites an American College of Obstetrics and Gynecologists' (ACOG) survey which found that 12 per cent of physicians had dropped obstetrics because of the threat of malpractice. In addition, many family practitioners are cutting their obstetric services. Much has been made in recent years of the 'oversupply' of physicians (Ginsberg and Ostow, 1984). This, together with competition for patients and the regionalization of services in some specialties (such as obstetrics), suggests the decline in physician numbers may not be a serious problem. The loss of care facilities and practising physicians, however, is disproportionately affecting particular groups in the population, especially the indigent and those in rural areas. A greater burden is being placed upon tertiary care centres and the voluntary sector at a time when it is increasingly being squeezed by the corporatisation of care (Whiteis and Salmon, 1987). One much discussed offshoot of the malpractice crisis has been the practice of 'defensive medicine' which commentators claim is leading not only to unnecessary increased costs to the consumer, but also to less patient choice. It is, of course, difficult to determine to what extent the decisions that physicians make in treating patients are influenced by the threat of malpractice. Hershey (1982:158) draws our attention to the problems associated with 'the difficulty in distinguishing what appears to be good medical practice from defensive practice of medicine, and the need to assess subsconscious as well as conscious influences created by consciousness about liability.' His study, which was based on nonstructured interviews with 17 physicians in private practice, does, however, suggest that the practice of defensive medicine varies by the 'personal characteristics of physicians and those of patients that they see' (Hershey, 1982: 158). The majority of the physicians in the sample said that their assessment of a patient's likelihood to sue was taken into account in treatment decisions. Physician Response Medicine's attempts to repair the economic and social damage to the profession incurred by the malpractice crisis have taken three forms. These are (1) lobbying for legislation (2) lobbying to affect public opinion and (3) primary and secondary (tertiary) prevention by 'managing' doctor-patient interaction. Medicine has historically had an effective governmental lobby, with the state supporting its particular interes j(renaud, 1975). Though the state's ability to continue to bolster sudi interests can be questioned, given the perceived necessity to intervene and contain costs, physician's strong residual power still gives them the abflity to resist and push for legal change. Thus, the AMA has expended much effort in lobbying for new

6 6 Ellen C. Annandale liability laws and for reducing the size of awards made to plaintiffs (Epps, 1986). A second lobbying strategy involves attempts to alter public perceptions of medicine and physicians. In brief, it centres around dispelling public belief in the omnipotence of medicine. Previously the belief in omnipotence was not necessarily fostered by the profession, but it was nonetheless not actively disavowed, for it contributed to status, respect and patient compliance. At present, though, omnipotence has become a trait that physicians are quick to reject. Thus Kraushar (1987a:83) declares that: Patients do not come to the physician with the prior intention of suing; they come to be cured. Unfortunately, many patients not only want to be cured, they expect to be cured, and anything less than a complete cure will be unsatisfactory. Disabusing patients of the misconception that everyone can be completely cured is an essential responsibility of the physician and constitutes a compelling indication for informed consent. The AMA Special Task Force on LiabiHty Action plan is launching an educational campaign to 'improve public understanding' and to educate patients about malpractice (Montgomery, 1987). The campaign involves the publication of pamphlets for patients of the kind already available in many doctor's offices. One such pamphlet distributed by the Rhode Island Medical Society tells patients that 'Medicine is not an exact science. Every patient is different and will react somewhat differently to medication and treatment. Despite a doctor's best efforts, some patients do not get the results from a particular treatment or procedure that they and their doctors expect.' Commentary from outside as well as inside the medical profession points to the declining status of physicians in the eyes of patients (Montgomery, 1987), and the growing expectations of medicine to effect perfect cures (Kraushar, 1987a), as associated with the increased propensity of patients to file a suit. These observations are familiar to those social scientists who have argued that medicine is becoming de-professionalised by the increasingly consumerist stance of patients (Haug and Lavin, 1983). Increased use of high-technology and the specialization and fragmentation of care is seen to impoverish the doctor-patient relationship, leading to patient dissatisfaction and hence to an increase in litigation. This leads us to the third way in which the medical profession is attempting to repair damage wrought by malpractice. This is at the interactional level during consultations with patients, where attention is being given to doctor-patient interaction as the source of litigation. The controversial doctrine of informed consent is crucial for understanding why physicians locate the source of malpractice suits in the doctor-patient relationship. In claiming negligence the plaintiff must prove a causal connection between failure to disclose information and the damages that he or she sustained (Koopersmith, 1984). Having its 'roots in the

7 The malpractice crisis 7 recognition of the patient's right to self-determination', informed consent means that 'a doctor is required to give his patient sufficient information about proposed treatment so as to provide him with the opportunity of making an 'informed' or 'rational' choice as to whether to undergo the treatment' (Robertson, 1981:102). In reality, the ability of informed consent to enhance patient selfdetermination can be questioned. Even putting the substantial social and political barriers to information exchange aside, when discussing risk the physician is legally permitted to exerdse discretion in disclosing information relevant to patient care (Katz, 1977). As Teff (1985) remarks, the rhetoric of informed consent provides much scope for medical paternalism. In practice informed consent can be little more than a formality. But, nonetheless, its centrauty to malpractice law functions to establish the doctor-patient relationship as the starting point for malpractice prevention. Harrison et al., (1985:44), for example, remark that 'this relationship is the framework from which all duties incumbent on the doctor arise and without this relationship there can be no negligence or breach of duties.' This helps to explain why physicians and lawyers have come to focus not upon negligence itself as precipitating a suit, but rather on failure of communication with patients. Before going on to discuss more precisely why physicians are giving so much attention to interaction in managing malpractice, and the type of management that is taking place," I would like to consider some of the beneficial effects that concem about malpractice may have for patient care. Positive effects of the concem about malpractice Social scientists have demonstrated that there is an interactional component involved in patient dissatisfaction with the care that they receive from physicians. Research has pointed to the patient's felt inability to ask questions (Shapiro et al., 1983), to get adequate information about treatment (Haug and Lavin, 1983) and to not being sufficiently involved in decision-making about their care. Patients' negative reaction to being kept waiting for appointments, to being mshed in and out of surgeries, and to the lack of continuity of care which derives from being passed to and fro between specialists has also been highlighted (Cartwright, 1%7). The patient's knowledge gap, which is, of course, in part a function of the interactional style of consultations which are not conducive to the transfer of information between provider and patient, inevitably means that he or she is unable to judge the appropriateness of clinical practices (diagnostic and treatment decisions). Hence, the patient locates his or her dissatisfaction in the interactional components of practice. This has been demonstrated in social sdence research which has been shown that patients evaluate physidans by their affective behaviour rather than technical

8 8 Ellen C. Annandale ability (Freeman et al., 1971). This observation has become a guiding precept in malpractice prevention with physicians making such remarks as 'the sine qua non of prevention is good doctor-patient relationships' (Henderson, 1986:243). Improving rapport, providing more information and sharing decisionmaking with patients has become common parlance in the current climate of litigation. Stabenow (1985:492), for example, exclaims 'Avoiding patient complaints? Communicate! Communicate!' Montgomery (1987:448) discusses bridging the information gap between physicians and patients and warns that 'patient/physician interaction which only results in a cursory grunt in answer to the patient's questions, or perhaps a nod or, a few hmms and the issuance of a prescription or two, should stop short and realize its folly.' Sommers (1985:300) suggests that 'Physicians might well ask each patient to write out the questions for which they are seeking answers. This exercise would allow for a review of problems in sufficient detail....' Emphasis is also being placed on reducing the fragmentation of care, to increased coordination between specialists (Griffiths, 1985; Rubin, 1978) and the need for adequate patient follow-up (Sommers, 1985). At a broader level, physicians are being exhorted to recognise the 'human aspects' of patient care (Rubin, 1978; Wright, 1984). Listing a set of 'Guidelines for avoiding malpractice', Ginsberg (1983:120) feels the need to tell physicians to 'Be courteous. Say "thank you" often.' Profit making organisations have developed to sell advice. For example, one such organisation aimed to sell 'sensible, practical, usable advice to achieve results by better rapport with patients and colleagues' to physicians. This included 'letter samples designed to graciously, tactfully and efficiently reach out and leave a good impression.' (See classified section of Michigan Medicine, 1983:270). Clearly any such reforms may well be to the benefit of patients who place much value on the quality of their interaction with physicians. But, perhaps more significantly, reforms in the direction of increased exchange of information open up the possibility of improved clinical practice and perhaps also patient outcomes as physicians are able to engage in shared decision-making with patients (DiMatteo and DiNicola, 1982). The doctor-patient relationship and litigation reduction The level of 'genuine' negligent injury is almost wholly undocumented (Zuckerman et al., 1986). It is only recently that data on clinical errors have become at all accessible and there are currently very few empirical studies. Perhaps the most telling and vivid accounts have come from social science (Bosk, 1979; MiUman, 1977) and these will be discussed below. There is, however, some published research from within the medical profession (see Brook et al (1975) for a review of this research). For

9 The malpractice crisis 9 example, the California Medical Association and the California Hospital Association (CMA/CHA) discovered that 4.65 per cent of all in-patient stays led to what they called a 'potentially compensable event' (PCE) (Mills, 1978). When expanded to the statewide hospital population, 17 per cent of all PCEs revealed evidence of liability (23,000 ± 3,«)0 PCEs). Even though it is not possible to competently assess the 'true' extent of medical negligence, medical and sociological research, as well as more anecdotal accounts, suggest that negligence does take place. It now behoves us to consider more precisely how doctor-patient interaction can become a target for reducing litigation. In his article entitled 'Liability Prophylaxis' Henderson (1986:243) warns fellow physicians that 'people don't sue their friends.' He quotes a surgeon who explains that 'If all goes well I don't worry, but if I get a complication or bad result I make that patient and their family a member of my family. I love them and support them.' (Henderson, 1986:244). This quotation makes the point that while reforms in doctor-patient interaction are no doubt beneficial to the patient, they may also be made, among other reasons, as litigation reduction stategies. In theory, it is possible to consider the filing of a suit by a patient as the outcome of two things (1) whether there was negligent injury or not and, (2) whether the patient (or patient advocate) is aware of the negligence and, if so, whether he or she decides (and has the resources) to file a suit. Comments such as, 'complaints and claims cannot provide a true account of the effectiveness of medical practice; it is more a measure of the degree of care as assessed by the patient' (Murray, 1984:237), imply that negligence is largely irrelevant to the malpractice case. However, there is some suggestion that the doctor-patient relationship is being used to alter patient perceptions even when the physician feels that a suit is wellfounded. Consider, for instance, this comment: Information from the risk management division of St. Paul Fire and Marine Insurance Company [the leading underwriter of malpractice insurance for many years] shows that about 1 in 100 hospitalized patients could legally bring a negligence action against their medical-care provider for failing to act, or acting improperly. Yet, less than 10 per cent of them do. Why? Often the answer lies with the type of relationship the patient has with his health care provider. The more positive the relationship, the less the malpractice risk (Sommers, 1985:299). Also consider the following comments made by Avery (1986:646) about failure to diagnose a nonfunctioning kidney. He remarks that 'retrospective analysis of this case suggests several areas where one would strongly suspect physician negligence.' He goes on to state that 'since no claim was pressed in this case, we can conclude that the physidan/patient relationship was strong enough to negate any feelings of anger on the part of this patient....' He concludes that:

10 10 Ellen C. Annandale The prevention of malpractice litigation, even in the face of possible mistakes of management, depends primarily on a good physician/patient relationship and good medical record (Avery, 1986:646). One explanation put forward by the medical profession to account for the (usually unspecified and argued to be very small) core of genuine malpractice that does exist is that it is due to a very small group of incompetents. Moser (1986), for example, talks of one per cent of incompetents. Further, as Fine and Sunshine (1986) and Bovjberg (1986) remark, suits that are brought are often seen to fall at random when communication breaks down. Repudiating an association between iatrogenic and negligent injury and litigation can lead to 'explaining away' a core of genuine malpractice. Admittedly the patient's perception of an event must influence whether a suit is filed and, in this way, the incident itself is insufficient to explain a claim. But, taken in conjunction with the argument that most suits are 'frivolous', the role of patients' perceptions can be stretched too far leading to the conclusion that it is not the negligent act, but the patient's perception of it which causes a suit. It then takes little imagination to target doctor-patient interaction as the seat of medical reform. This deflects attention away from physicians themselves and their practice which is strongly resistant to regulation and change (Freidson, 1970). Reform in the doctor-patient relationship, then, could be little more than a cosmetic operation, its function summarised in the following remarks made by Kraushar (1987b:3); 'the best prophylaxis for medical malpractice litigation is nurturing and maintaining the doctor-patient relationship.' Primary and secondary malpractice prevention Most suggestions for modifying the doctor-patient relationship to avoid a suit rely principally upon 'primary prevention'. This involves 'preventing suits', managing relationships so that if something happens, the physician's good rapport with the patient can be called upon to 'put the problem right'. It is argued that this management process should begin upon the doctor's first contact with the patient. Sommers (1985:300) urges that 'an appropriate communication pattem must be initially established with new patients by the office staff and physicians. Dialogue must set in motion a clear, meaningful relationship between patient and physician.' Management even extends to the pre-patient stage as physicians are advised to vet new patients. Once a patient is accepted into the practice, physidans are warned to ensure the effective communication and sharing of information. One further primary management strategy that follows on from information exchange is dissolution of responsibility. Beginning from the premise that problems can be caused by unrealistic expectations of medicine, Gutheil et al., (1984) encourage physicians to share uncertainty

11 The malpractice crisis 11 with patients. It is suggested that the physidan should treat medidne as a process of mutual discovery with patients (Applegate, 1986). Gutheil et al.'s advocacy is based on work in the mental health field where the model of a 'therapeutic alliance' (Gutheil and Havens, 1979) is perhaps most applicable. They stress its clinical benefits for patients but also point out that 'legal benefits flow from the clinical ones...[the] use of informed consent to enlist the patient in an active alliance with the physician discourages overly simplistic blaming and reduces the alienation from the physician which leads the patient to seek legal remedies for dissatisfaction' (Gutheil era/., 1984:51). In theory, such an alliance between physician and patient would offer a solution to the problems caused by the typical active physician-passive patient situation and allow the patient a degree of mastery over his or her treatment. However, it is extremely difficult to realize in practice. There are often organisational constraints to the 'therapeutic alliance' even if it is largely desired by patient and provider (Annandale, 1987). Further, models of shared decision-making rely implicitly on the assumption that if the physician changes his or her behaviour to involve patients in a more equal alliance, then the patient will somehow automatically follow suit. While it seems clear that many patients do desire an increased role in treatment decisions, their behavior when in the position to adopt this role may involve retreat rather than involvement (Haug and Lavin, 1983; Silverman, 1987). The point to be made, then, is that a therapeutic alliance may be difficult to realize in practice. In addition, a distinction can be made between shared decision-making and shared responsibility. The latter makes explicit reference to ensuring that the patient takes responsibility for his or her own care (and hence the outcomes of treatment), absolving the physician of responsibility. This could be problematic for the patient (or patient's advocate) if taking responsibility leads to self-blame for an outcome that was, in fact, attributable to physidan negligence. As we saw earlier, establishing a 'good' doctor-patient relationship functions to preclude a suit if negligence occurs. Secondary prevention involves action taken to reduce the effects of a clinical error after it has occurred or to dissuade a suit brought by a patient (in the absence of error). One such secondary prevention technique involves 'forgiving' the patient's fee. Kraushar (1987b) advises that physicians need to be careful because this could be seen as a sign of guilt:... [W]hen faced with a poor result and a patient who appears litigious, forgiving the portion of the fee not covered by insurance may prove a sound investment in the physician's peace of mind. He also recommends that the physician take special note byflagging the medical records of patients whose results are less than satisfactory and to 'being as solicitous as possible with these patients' (Kraushar, 1987b:4). Most discussions of malpractice exhort the physician to be honest if a

12 12 Ellen C. Annandale complication or bad result arises when treating a patient. For instance, altering or completing medical records retrospectively is discouraged (Souviron, 1983). Nonetheless, attention is also being given to 'managing patients' through interaction after the event - conceptualised here as 'secondary prevention.' Recall, for instance, the quotation from Henderson (1986:244) where the surgeon explained that if he experienced an untoward result he made the patient one of his family, and loved and supported him. Murray (1984:237) talks of tertiary prevention which 'aims to diminish the effects of the mishap and to re-establish proper relationships at the earliest, and hopefully, cheapest means.' Souviron (1983:40) urges dentists that if a mistake occurs it should be pointed out to the patient immediately 'before he or she makes the discovery. It can then be classified as a complication, rather than an error.' 'Suit-Prone' Patients Much of the attention given to the doctor-patient relationship and its association with malpractice has been directed towards changing physician behaviour. It is assumed that patients will take up physician cues to develop a consultative style which centres around shared decision-making and responsibility. But, as we have seen, this does not mean that patient behaviour is ignored in the attempt to reduce the impact of malpractice upon the physician. Mindful of the significance of patients' perceptions of medical injury (negligent or otherwise) physicians' and lawyers' attention has focused upon recognising the 'suit-prone' patient during consultations. This should not be a surprise since the stereotyping of patients has been shown to be common in medical practice (Wallen et al., 1979) and, furthermore, has been associated with poor patient outcomes (Fisher, 1979). Rarely, however, have these stereotypes been made so explicit as in the current climate of litigation. Characteristics of suit-prone patients can be divided into psychological and socio-demographic dimensions. Psychological characteristics of 'suit-prone' patients Discussing the emotions which spark a malpractice action, Souviron (1983:39) claims that 'anger, fear, greed, and rejection are some of the strongest psychologically motivating forces.' But rather than point to human emotions alone, other commentators have addressed the 'personality types' most likely to sue. Bernzweig (1985:63) a lawyer, writing in a nursing joumal, for instance, claims that 'some patients, because of their personalities, are more likely to take you to court than others.' Somers and Somers (1961) cite a 1958 study by the Califomia Medical Association which, they explain, described the suit-prone patient as a 'mild neurotic, dependent, lacking in understanding of his own emotions.' (Somers and Somers, 1961:473). It is difficult to accurately summarise which personality

13 The malpractice crisis 13 characteristics physicians see as suit-prone. A whole gamut appear in the literature, including patients who are 'dependent', 'uncooperative', 'hostile', have 'unrealistic expectations', are 'self-styled experts', 'emotionally disturbed', 'flatterers', are 'subservient', 'demanding', 'cranks', 'paranoid', 'psycho-neurotic', 'untrusting' and 'dishonest'. These typifications are problematic for physicians because they violate the very reforms that they are attempting to make in the doctor-patient relationship. For example, Ginsberg (1983) and Bernzweig (1985), attorneys writing for dentists and nurses respectively, both warn of the 'dependent patient'. Bemzweig (1985:63) explains that this patient 'exhibits a childlike dependence. He expects [nurses] to tend to his every need, and he may refuse to do anything for himself.' Continuing this theme, Ginsberg (1983:116) comments that the dependent patient'...sounds like a lovely, cooperative patient, but she...is sending you a signal. Beneath her pleasant remarks she's telling you "Don't involve me! It's your responsibility, not mine. So, if anything goes wrong, that will be your responsibility, and your fault too"' The 'dependent patient', then, fails to comply with the felt need for patient self-responsibility. Another example is the 'demanding patient' who is said to want 'constant attention...he's out to punish anyone who fails to cater to his unreasonable whims. His best revenge, of course, is to drag you to court' (Ginsberg, 1983:116). Hershey (1982:144) found that physicians cited 'pushy, demanding, belligerent and antagonistic' patients as personality types most likely to sue. The same author quotes a physician who remarked that such patients say things Uke 'I've been coming here a lot and spending a lot of money, and I'm not getting any better' or 'Why haven't you referred me to another specialist' (Hershey, 1982:144). This type of patient is seen to violate the norm of being 'realistic' about what medidne can achieve; he or she quite simply is seen to expect too much. Resembling the demanding patient, is the patient who is seen as 'knowing too much'. This is the 'self-styled expert' or 'supervising patient'. Ascherman (1985:29), a dentist and attomey, advises being wary of 'the patient who seems to make mental, verbal, or written notes of highly technical information....the pitfalls in dealing with the consumerist, as these patients are often called, is that they may set traps for you, attempting to corner you into suggesting that a certain sequence of symptoms makes you suspect a certain diagnosis.' Clearly this patient is seen to take too much control. Socio-demographic characteristics of 'suit-prone' patients References to perceptions of the socio-demographic characteristics of suitprone patients are not as evident as the psychological. Ritchey (1979,1980) found that physicians tended to see the semi-educated and blue-collar/ working class patients as most Ukely to sue. And, among Hershey's (1982) physicians who perceived an assodation between social class and mal-

14 14 Ellen C. Annandale practice, a few were wary of working class and minority groups. It is difficult to know if the lack of data in the literature on sodo-demographic characteristics and physidan perceptions of malpractice-proneness reflects a lack of association in the minds of physicians or a lack of research interest. There is certainly a lack of attention to socio-demographic characteristics amongst medical commentators, but this could reflect the salience of psychogenic explanations for patient behaviour in general. Given the large body of social science research pointing to the salience of patient age, gender and social class in physician behaviour (Roth, 1981; Armitage et al., 1979), it would be premature to conclude that sociodemographic characteristics are irrelevant to how physicians respond when judging the suit-proneness of their patients. There is something inconsistent about these perceptions of suit-prone patients and the way in which their physicians and dentists are being exhorted to change their interactional style (to reduce malpractice). They are advised that patients who defer to physicians should be avoided and that physicians who expect deference are only asking for trouble. Yet, the consumerist patient who, it appears, wants to take responsibility and who clearly does not defer is also seen as suit-prone. Indeed, Ritchey's (1979:163) physicians saw 'the suit-prone personality as someone who does not pay deference to a physician's "charisma", who does not recognise the physician's status and social standing.' Perhaps there is some ideal-type of patient (who will not sue) embodied in this simultaneous rejection and acceptance of imputed patient characteristics; a patient who wiu balance a level of deference with a little (but not too much) knowledge, who will take responsibility for decisions, but only those deemed appropriate by the physician? I suggest that what this seeming ambivalence on the part of physicians actually reveals is a reluctance to accept the very reductions in authority, standing and control that are being called for to reduce malpractice suits. What implications might these characterizations of suit-prone patients have for patient care? Millman's (1977) observations of hospital mortauty reviews reveal that one way in which physicians demonstrate why their own performance led to error is by shifting blame away from themselves to either the unusual circumstances of a case or to the patient. If blame is shifted to the patient it can involve pointing to certain social and psychological characteristics which misguided the physician. She found that such patients were often discredited as misleading the physician by being 'alcoholic,' 'obnoxious,' 'uncooperative,' and 'crazy.' (MiUman, 1977:107). The imphcations of such patient stereotypes are not difficult to discem; they carry the clear potential for discrimination and for practice that is motivated not by what the physician perceives to be the patient's best interest, but by avoiding a malpractice suit. Thus, 78.9 per cent of primary care physicians, responding to a mailed questionnaire, said that they felt that they must 'be more cautious with certain patients who they

15 The malpractice crisis 15 think are "suitprone"' (Ritchey, 1979:162). Ritchey (1980) also found that suit-prone patients are likely to be treated in a defensive way by primary care providers and to be referred prematurely to specialists^. Conclusion I have outlined the ways in which the medical profession has responded to the malpractice crisis. My argument is that from the point of view of patient care, the malpractice crisis may have both positive and negative repercussions. Most significantly, there is evidence to suggest that the threat of malpractice may lead to reforms in the way in which physicians interact with their patients*. They are being urged to develop a good rapport, to share decision-making and to persuade patients to take more responsibility. Reference to the large body of social science research on doctor-patient interaction and patient care suggests that such reforms should be welcomed. Back in 1970, Freidson argued that medicine needed to become accountable to the individual patient. Throughout the 1970s and on into the 1980s, social scientists have continued to call for a reduction in the power and autonomy of the practitioner and for increased consumer voice (DiMatteo and DiNicola, 1982; Tuckett et al., 1985). The current and future ability of the medical profession to uphold its position of dominance remains a topic of quite fierce debate. Discussing the implications of malpractice for professional autonomy in Britain and Sweden, Rosenthal (1987:239) concludes that 'overt professional control of disciplinary mechanisms is not required for professional interests to be protected. A profession can exerdse power and authority without overt autonomy.' Though Rosenthal's (1987) research addresses institutional regulation and public policy, my conclusions compliment her own; manipulating interaction with patients is a rather covert way of protecting professional interests. In these concluding remarks I would like to broaden the discussion and consider further why a major response to the malpractice crisis has been located at the level of interaction with patients and its links to professional dominance and control over patient care. MiUman (1977:91) explains that 'defenses against acknowledging mistakes reside in the very heart of medical work, philosophy and organization.' There is, she claims, no standard and universal definition of what is right and wrong. In his study of physician training and the management of failure. Bosk (1979) shows that the physician's 'failure to perform competently' has two dimensions; 'errors in technique' (fauure to correctly apply the body of knowledge that is available) and 'moral failures' (failure to follow the professional code of conduct). He argues that 'social control of the profession subordinates technical performance to moral performance'

16 16 Ellen C. Annandale and negligence itself 'is defined in terms of clinical norms - moral values - and not technical standards' (Bosk, 1979: 168, 181). The implication of this research is that it is difficult for the medical profession to 'punish' technical errors for it is not always clear whether the mistake lay in the individual physician or the state of medical knowledge (Bosk, 1979). MiUman (1977:117) demonstrates that individual physicians are discouraged from admitting mistakes for to do so would mean upsetting medicine's 'faith in science, objectivity and rationality.' Further, admitting errors opens the individual up to self-doubt and guilt, quauties which are felt to be incompatible with continued practice. This body of research provides some clues as to why interaction with patients has become a principle location for solving the malpractice crisis for physicians. It suggests not only clear constraints against reveaung errors, but also against recognizing that they have occurred at all as 'the individual [physician] claims his conduct is beyond question - that he did everything any other member of the profession might have done in similar circumstances - and that failure is accidental, incidental, and random' (Bosk, 1979:170). There is here a separation of the individual physician from medicine as a body of knowledge and technique. This division is carried over into the management of malpractice: when errors occur they are perceived to be due to the state of knowledge and technique; the physician cannot control this, he or she can only control his or her own conduct in interaction with patients. Responses to malpractice, then, are essentiauy reductivist; solutions are sought in interaction not at the broader level of the organization of practice. Medical injury is often associated with the use of high technology and vogue therapies (Furrow, 1981). The development of medical technology is largely unregulated (MiUman, 1977), its appucation may be fostered more by the search for profits in a competitive market (Waitzkin, 1979; Hughes, 1985) than for any obvious therapeutic benefit. There has been sufficient suggestion in recent years of expanded Uability whereby hospitals are held responsible for the negugence of physicians who practice in them (even when physicians are independent contractors) (Furrow, 1981). Unless physicians begin to 'focus upstream' and look at the organisation and basis of medical knowledge in relation to individual practice, there is a clear potential for increased corporate control over the profession in the form of alterations in the work setting, increased evaluation of procedures and more practical use of information gathered by risk management programmes to change physician behaviour. In this cumate of increased corporatization of hospital and primary care, malpractice may be one further stimulus for corporate control over the medical profession. However, the profession's inabuity to withstand corporate threats to its autonomy tells us Uttle about its abiuty to retain control in interaction with

17 The malpractice crisis 17 patients. Attention is being given to interaction and affect at a time when patients are increasingly vocal in their dissatisfaction with the technological and de-humanized practice of medicine. Patients' expectations for a more couegial and jiffective medical care provide physicians with a solid base from which to launch an attack upon malpractice, one that is Ukely to meet with success precisely because it coincides with patient aspirations. Medicine's ability to foster its own speciaust interests by drawing upon the general trend towards humanism in patient care has not been missed by other commentators. De Vries (1984) shows how parent-infant bonding theory was embraced by physicians because it provided a scientific rationale for responding to consumer complaints about contemporary obstetric practice. Furthermore, bonding provided justification to enhance rather than diminish professional control over perinatal and neonatal care as physicians and allied workers were needed to ensure that the 'correct' type of attachment developed. Herein lies the irony, for this trend towards humanism may be brought by patients at the cost of increased medical control over their own care. Humanism is accompanied by an extension of the 'clinical gaze' (Foucault, 1973) as medicine moves from a specific etiologic to a multi-causal model (Zola, 1981) and Ulness is seen no longer to lie only inside the body but also in the social and psychological context of the patient's life-world (Armstrong, 1984). By this process, medicine's power and control is magnified as patients become more and more visible, accessible and 'known' (Arney, 1982). As control is ostensibly diffused and the patient is placed in the role of a rational, thinking 'partner' in, to use Applegate's (1986) term, a process of mutual discovery with the physician, that patient with his or her social and psychological baggage becomes ultimately responsible for what transpires as treatment. In the context of malpractice this process, along with broader reforms in the way physicians relate to their patients, can keep errors in practice off the agenda altogether. This may be the most powerful form of control of all (Lukes, 1974). In this situation - of what Lukes (1974) calls three dimensional power - the physician's power inheres in being able to influence patient expectations so that they may fau to act in their own interests (even at the same time as expressing satisfaction). The patient may thus be dissuaded from gaining compensation for errors of medical practice. This possibility is further suggested by research demonstrating an association not only between positive evaluations of physicians' communicative style or affect and general satisfaction, but also with technical competence. Early research by Ben-Sira (1976) noted such an association and a more recent study by BuUer and BuUer (1988) found that patient satisfaction with physicians' communication style explained 76 per cent of the variance in satisfaction with medical care. These authors conclude that, for patients, competence in communication may be a facet of medical competence. In Ught of this

18 18 Ellen C. Annandale research 'improved rapport' may indeed be a very real and potent but, nonetheless, fundamentauy mispl&ced antidote to litigation. MRC Medical Sociology Unit 6 Lilybank Gardens Glasgow G12 8QQ Acknowledgments I wish to thank PhU Brown and Sarah Cunningham-Burley for helpful comments on an earlier version of this paper. Notes 1 Legal commentary does not, of course, strictly reflect the view of the medical profession. But as it is located in medical and dental journals this suggests that it is seen as pertinent to, perhaps even endorsed by, medicine. 2 With the increased ease of communication between physicians in different localities, the 'locality rule' is in many cases no longer recognised by the court (Harrison et al., 1985). 3 In the late 1980s there has been much debate about putting malpractice on a contractual basis where individual physicians and their patients would negotiate how to manage risk (Robinson, 1986). The usual objection to such a change centres, quite understandably, around the unequal access to knowledge of patient and doctor (Epstein, 1986). Havighurst (1986), one of the foremost protagonists in the debate, has suggested specimen contracts that a patient might agree to which absolve the physician of responsibility for all but gross negligence (i.e., willful neglect) in return for the physician's acceptance of that individual as a patient. Such moves are problematic and, as Law (1986) points out, misconstrue the nature of medical malpractice for patients typically do not want to pay less and get less protection, but want higher quality at reduced costs. 4 The collateral source rule allows plaintiffs to recover amounts for which they have already been reimbursed under their own insurance. Recent refonns have required that collateral sources be offset against awarded damages (Robinson, 1986; Schwartz, 1982). 5 The actual input that patient characteristics have in litigation is difficult to discern. There is no data on psychological characteristics. Research on sociodemographic characteristics either suggests that patients who sue are representative of the population as a whole (DHEW, 1973) or that they are disproportionately from the white-collar and better educated (Doherty and Haven, 1977; Brown, 1980). Though this evidence is slight, this would appear to be in contrast to physicians' own perceptions suggesting that suit-proneness may be a function of social distance; that it is those patients who have characteristics the least in common with physicians who are seen as more likely to sue.

19 The malpractice crisis 19 6 It should be pointed out that some physicians have argued against the use of the doctor-patient relationship to lessen the impact of the malpractice crisis. Tanay (1983:271), for instance, remarks that, 'Good doctor-patient relationships are highly desirable for a variety of reasons; malpractice prevention is not one of them.' This comment, though, does not detract from the centrality of the doctorpatient relationship in discussions of malpractice; in fact, it highlights its salience. References American Medical Association Committee on Medical-legal problems (1963) Committee Report AMA 'Professional liability and the physician.'/ourna/o/t/ie American Medical Assodation, 183, Annandale, Ellen C. (1987) Dimensions of patient control in a free-standing birth centre. Social Science and Medicine, 25, Applegate, William B. (1986) Physidan management of patients with adverse outcomes. Archives of Internal Medicine, 146, Armitage, Karen J.; Schneiderman, Lawrence J. and Bass, Robert A. (1979) Response of physicians to medical complaints in men and women. Journal of the American Medical Association, 241, Armstrong, David (1984) The patient's view. Sodal Science and Medicine, 18, Arney, William (1982) Power and the Profession of Obstetrics. Chicago: Chicago University Press. Ascherman, Norman (1985) How to spot the malpractice-minded patient. Dental Management, 25, Avery, J. Kelly (1986) Good rapport and good record: antidote for litigation. Journal of Tennessee Medical Association, 79, 646. Ben-Sira, Zeev (1976) The function of the professional's affective behavior in client satisfaction: a revised approach to social interaction theory. Journal of Health and Social Behavior, 17, Bernzweig, Eli, P. (1985) How to spot the suit-prone patient. RN, 48, Blumstein, James F. (1982) Responsibility and accountability in provider-patient relationships. Circulation, 66 (Suppl III), Bosk, Charles (1979) Forgive and Remember: Managing Medical Failure. Chicago: University of Chicago Press. Bovjberg, Randell R. (1986) Malpractice on trial: Quality of care is the important standard. Law and Contemporary Problems, 49, Bradford, Evelyn W. (1986) Big mouths cause malpractice suits. Medical Economics, February 3rd, 31-32, Brook, Robert H., Brutoco, Rudolf L. and Williams, Kathleen N.(1975) The relationship between malpractice and evaluation of care. Duke Law Journal, Brown, Stephen W. (1980) Consumer attitudes towards malpractice. Arizona Medicine, 37, BuUer, Mary Klein and BuUer, David B. (1988) Physicians' communication style and patient satisfaction. Journal of Health and Sodal Behavior, 28,

20 20 Ellen C. Annandale Campion, F.D. (1984) The American Medical Association and U.S Health Policy Since Chicago: Chicago University Press. Cartwright, Ann (1967) Human Relations in Hospital Care. London: Routledge, Kegan Paul. DHEW (1973) Report of the Secretary's Commission on Medical Malpractice. DHEW Publication No [OS]. Washington D.C: Government Printing Office. Danyo, Joseph J. (1980) Medical malpractice - a system run amok, Pennsylvania Medicine, 83, DeVries, Raymond G. (1984) Humanizing childbirth: the discovery and implementation of bonding theory. International Journal of Health Services, 14, DiMatteo, Robin and DiNicola, D. (1982) Achieving Patient Compliance. New York: Pergamon. Doherty, Edmund G. and Haven, Carl O. (1977) Medical malpractice and negligence. Journal of the American Medical Association, 238, Epps, Charles, H. (1986) Medical liability, 1986 problem, prescription, prognosis. Journal of Bone and Joint Surgery, 68A, Epstein, Richard A. (1986) Medical malpractice, imperfect information, and the contractual foundation for medical services. Law and Contemporary Poblems, 49, Fine, Max W. and Sunshine, Jonathan H. (1986) Malpractice reform through consumer choice and consumer education: are new concepts marketable? Law and Contemporary Problems, 49, Fisher, Sue, C. (1979) The Negotiation of Treatment Decisions in Doctor-patient Communications and their Impact on the Identity of Women Patients. Ph.D Dissertation. San Diego: University of Califomia. Foucault, Michael (1973) The Birth of the Clirtic. London: Tavistock. Freeman, Barbara, Negrete, Vida F., Davis, Milton, and Korsch, Barbara M. (1971) Gaps in doctor-patient communication: Doctor-patient interaction analysis. Pediatric Research, 5, Freidson, Eliot (1970) Professional Dominance. New York: Atherton Press. Freidson, Eliot (1985) The reorganization of the medical profession. Medical Care Review, 42, Furrow, Barry R. (1981) Iatrogenesis and medical error: the case for medical malpractice litigation. Law, Medicine and Health Care, 9, 4-7. George, James, E. and Ouattrone, Madelyn S. (1984) Obstetric medicine and gynecologic malpractice. Journal of the Medical Society of New Jersey, 81, Geyman, John P. (1985) Malpractice liability risk and the physician-patient relationship. Journal of Family Practice, 20, Ginsberg, E. and Ostow, M. (eds) (1984) The Coming Physician Surplus: In Search of a Policy. New Jersey: Rowman and Allan Held. Ginsberg, Linda Gartner (1983) Detect the warning signals sent by suit-prone patients. Dental Economics, 73, Griffiths, Richard (1985) Malpractice avoidance techniques. Texas Medicine, 81, Gutheil, Thomas, Bursztajn, Harold, and Brodsky, Archie (1984) Malpractice prevention through the sharing of uncertainty. New England Journal of Medicine, 311,

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