Writing in Medscape Medical News, Mark Crane examines why fewer than 10% of patients who experience adverse outcomes due to medical negligence file a malpractice suit.
Certain groups—such as the elderly or religious sects—are less likely to sue, but many patients decide not to sue based on their relationship with their physician or how doctors react after the incident, Crane writes.
Why patients chose not to file a lawsuit
In general, patients and their families want candor from physicians after a medical error, experts say.
Physicians and malpractice lawsuits
"The patient naturally thinks the doctor is trying to cover something up," attorney Joseph McMenamin says, adding that patients' families' "motivation in filing a lawsuit isn't necessarily financial. They want to find out what happened, and what the doctor or hospital will do to avoid making the same mistake in the future."
In these cases, a physician's attitude and candor can be important. "When patients feel a lack of respect, it increases the likelihood of an avoidable adverse outcome," says Gerald Hickson, senior vice president for quality, patient safety and risk prevention at Vanderbilt University. "Doctors who don't show respect for patients also don't model respect for other members of the health care team…so if there's a poor outcome, the family is predisposed to filing a lawsuit," he adds.
Meanwhile, some patients do not sue because they worry that it could impede their access to care for ongoing problems, according to Stephanie Sheps, a claims director at professional liability carrier Coverys.
Other patients fail to sue because they do not want to undergo the pain of litigation or they cannot find a lawyer to take their case. "The average case costs at least $50,000… If the recovery isn't at least [six] figures, the lawyer can't afford to take the case," says malpractice attorney James Lewis Griffith, adding "[t]hat's why out of every 20 patients injured by a doctor, the odds are that only [one] or [two] will be accepted by a lawyer."
Expert: The case for saying 'I'm sorry'
Saying "I'm sorry" does not necessarily mean the physician is admitting wrongdoing, but it does acknowledge mutual disappointment, according to Doug Wojcieszak. He founded an organization called Sorry Works! that trains health care providers and attorneys on how to disclose poor outcomes.
"People sue when trust is broken between the family and provider," Wojcieszak says, adding "When there is early disclosure of an error accompanied by empathy, it's easier for the patient to be forgiving."
Following an adverse event, Wojcieszak urges physicians to:
- Say sorry;
- Acknowledge the patient and their families' feelings;
- Promise an investigation;
- Assist with immediate needs such as lodging; and
- Document the chart to reflect the conversation.
Hospitals try early disclosure
Some hospitals use early-disclosure programs to prevent lawsuits and recompense patients who have suffered from an adverse event.
Under one such pilot program in Massachusetts, physicians alert the hospital's risk manager and insurer as soon as an adverse event is identified. Then, the team does an analysis to determine if the error was avoidable. If the event was preventable, the officials disclose the information to the patient and consider offering compensation (Crane, Medscape Medical News, 11/25).