Communication with Patients, Colleagues and the Public with Specific Reference to Medical Litigation

WMA – SEYCHELLES BASIC CONCEPTS IN ETHICS SEMINAR, 10TH & 11TH JULY 2015 (July 2015)

Professor A Dhai Immediate Past-President SAMA

Director: Steve Biko Centre for BioethicsHoD Bioethics Discipline

Faculty of Health Sciences University of the Witwatersrand, Johannesburg

South African Unit of the UNESCO International Network in Bioethics

• Changing practitioner-patient relationship• Core values in medical ethics • Communication• Competence• Stress as a factor in litigation risk• Implications of Increasing Litigation• Medical Malpractice & Professional

Negligence• Recommendations

INTRODUCTION

• purpose of health care practice : – always to care for the sick and promote their health interests and well being. – health care practice - moral contract between the public and the profession – health care practitioners important agents through which scientific knowledge applied

to human health.

• attitudes and expectations of both public and practitioners undergone change: – traditional practitioner-centred approach to patient care transformed into the present

day patient-centred approach, – legal influences having bearing on relationship - gradual transition of practice towards

that of defensive medicine - ? the humanistically responsive practitioner may soon become a concept belonging to the past?

– political, social and economic factors have introduced demands, anxieties and stresses in health care practice.

• practitioners whose jobs in the past were clear and unequivocally well understood now face uncertainties and doubts as to their roles

The changing practitioner-patient relationship

• WMA Core values of Medical Ethics:– Compassion

• Understanding and concern for another person’s distress• Patients perception that concerns are appreciated and

being treated rather than just the illness– Competence

• High degree expected and required• Technical and ethical

– Autonomy• Self-determination• Both practitioner and patient

Core values of Medical Ethics

• *70% litigation due to poor communication – Moore et al : dissatisfaction with communication largest

factor leading to complaint (Chile)– Hamasaki et al : increasing trend of doctor’s explanations

forming a pivotal point of medical malpractice litigation (Japan)

• At heart of most dissatisfaction – failure to communicate caring– Ambady et al : surgeons audio-taped voices assessed by

patients – high dominance over and low concern for patient correlated with surgeons who had previous claims

– Beckman et al : association between perceived lack of caring and decision to litigate

– Chiu et al : driving motivation for litigation – emotional desire to achieve comfort ,i.e., sense of being cared for

References available on request

Communication

• Moore et al :– Patient perception of doctor competence increased– Patient intention to sue decreased

• Hagihara et al :– Explanatory behaviour + explaining and listening to families

– markedly lower probability of court decisions of negligent care

Impact of Good Communication and Demonstrating Caring

References available on request

• Negative attitudes towards communication

• Lack of inclination to communicate

• Personality differences with patients

• Undervaluing importance of communication

• Lack of understanding of communication process

• Lack of knowledge or training in communication skills

• Fear of litigation!

Key Barriers to Effective Communication

TYPE OF OFFENCE

GUILTY VERDICTS - HPCSA

2009/2010 2010/2011

Incompetence 26 18

Insufficient Care/Treatment & Mismanagement of Patients

31 20

Negligence 15 23

Misdiagnosis 4 6

Practicing Outside Scope of competence 10 4

Overcharging / charging for Services not Rendered 43 34

Other 70 67

TOTAL 199 172

• Higher levels of occupational stress (public sector) cf average working population:

• Understaffing • Lack of resources• Lack of control• Difficult work schedules• Inadequate security• Poor career advancements• Poor salaries

Thomas LS, Valli A. Levels of occupational stress in doctors working in a South African public sector hospital. SAMJ(2006); 96:1162-1168

Stress

• Increase in Frequency

• Increase in Magnitude

Claims Inflation

• Serious concerns on sustainability of the current claims trajectory on practitioners, patients, wider healthcare economy. – snowballing cost of professional indemnity insurance, resulting in

higher medical costs in the private sector. – public health institutions - affects the State’s ability to finance

healthcare in the medium to long term, has a negative effect on service delivery • inevitably reduce quality of care in already resource-strapped setting.

– healthcare practitioners, on a personal level - struggling to reconcile ethical duties towards patients : growing aversion to liability risk and the related fear of being sued.

– anecdotal evidence – decreasing specialists in high risk disciplines overburdening public facilities

Implications of Increasing Medical Litigation

Perfecting communication, listening and empathy skills

Essential components to avoiding risk of litigation

• Some patients are difficult to deal with and could wear down practitioner endurance:– angry, abusive, self-destructive and noncompliant.

• Ethical challenges encountered when caring for such patients include:– questions around mutual respect, compassion and justice – whether or not limits to these values should be permissible

The difficult patient

• Emotionally stressful – may have to develop defense mechanisms to cope with tensions.

• Feeling useful and being useful - integral to achieving satisfaction at work – noncompliant, uncooperative patient denies those that provide care the chance to feel

that usefulness and satisfaction

• Frustrated & dissatisfied– understandable as really work hard to improve patient’s condition and efforts are met

with noncompliance

• Emotional reactions and responses adverse towards the patient – trigger rift from the practitioner’s ethical and moral ideals.

Impact on the practitioner

• Listen to rejection of management

• Empathy and compassion are not only the ability to feel a patient’s pain and suffering, but also to have an awareness of the whole person, the person’s ideas, feelings, attributes, and prejudices.

• Important to remember that we can learn from our patients.

• Learn to adjust to specific patients and their behaviour

Responding to the noncompliant patient

• start off by asking what patient understood about the proposed management.

• was patients given sufficient information in a way that could be understood?

• effective communication is key to enabling patients to make informed decisions.

• take appropriate steps to find out what patients want to know and ought to know about their condition and its treatment.

• patients are more likely to co-operate fully with the agreed management of their conditions if they make properly informed decisions about their health care.

• If a patient has not truly understood would it be fair of the practitioner to label her/him as noncompliant?

Responding to the noncompliant patient

• Despite strict adherence to core ethical values in health care practice by the empathic, altruistic and compassionate practitioner, the angry, abusive, self-destructive, noncompliant and vindictive patient is a reality.

• SMDC

• Legal sanction

Reality

• Be aware of and discuss challenges imposed by the difficult patient with peers, other colleagues

• Seek advice from insurers

• Practice of empathy and compassion could be understood by discussing why one loses empathy and how the situation could be adjusted

• Good note keeping – assists with patient management during follow up, – could be used in the practitioner’s defense

RECOMMENDATIONS

• Medical malpractice – negligent or intentional unlawful conduct on the part of health care

practitioners that causes injury or damage to their patient or their patient’s property.

• At common law - where professional persons intentionally or negligently unlawfully cause harm to another person.

• Malpractice goes further than professional negligence– because it includes negligent or intentional acts.

• for example where a health care practitioner intentionally breaches the confidence of his or her patient.

MEDICAL MALPRACTICE

• When health practitioners negligently fail to exercise degree of skill and care of reasonably skilled practitioner in their field of practice.

– Specialists expected to exercise greater degree of skill and care than general practitioners.

– Greater skill and care also required where more complicated medical procedures used.

• Therefore general practitioners would be negligent if they undertake work for which they do not have the required specialist skills – unless it is an emergency situation and no specialist is available.

• Negligence also when fail to take informed consent

PROFESSIONAL NEGLIGENCE

• ELEMENTS:• Disclosure• Understanding and appreciation• Capacity• Voluntariness

INFORMED CONSENT

• A risk is material if:– A reasonable person in the patient’s position, if

warned of the risk, would attach significance to it; and

– The health practitioner should reasonably be aware that the patient, if warned of the risk, would attach significance to it.

Material Information

Avoiding Trouble – Gillespie’s “Six Cs”

• Communication• Consent• Confidentiality• Competency • Clinical Records• Careful Prescribing

• MPS Junior Doctor Issue 1/2009

• Abiding by the WMA Core Values goes a long way in avoiding risk

• Continuously perfecting communication, ethics and technical skills are essential

• Good note keeping assists with patient management during follow up, and could be used in the practitioner’s defense

• The practice of empathy and compassion could be understood by discussing why one loses empathy

• PRACTITIONERS ARE VULNERABLE TOO

Key Points

South African Journal of Bioethics and Law

http://www.sajbl.org.za