Case Studies: Physician Empathy Can Decrease Liability Risk

Although physician empathy may seem to be a low priority in comparison to clinical skill, research indicates that physician empathy has wide-ranging effects for both physicians and patients, including better patient outcomes, greater patient satisfaction, less stress and burnout, and — as the following case studies show — it can affect whether a patient files a medical liability lawsuit.

Case One: Lack of Physician Empathy Leads to Allegation of Intentional Infliction of Emotional Distress

You don’t have to like a patient to be empathic. In the following case, the relationship between the physician and patient was strained by a variety of non-clinical issues, including:

• The gastroenterologist didn’t like obese people.
• The gastroenterologist was irritated by patients who didn’t prepare for colonoscopies.
• The practice failed to schedule procedures with the same gastroenterologist with whom the patient’s pre-procedure consultation had been conducted.
• The practice failed to order supplies that accommodated obese patients.
• The patient was emotionally frail.

Consider how this patient’s experience could have been different if the gastroenterologist had taken a moment to “stand in the patient’s shoes,” gotten a sense of the experience the patient was having in the endoscopy center and altered his behavior towards the patient.

Allegation

Inappropriate and disparaging comments made during a colonoscopy resulted in emotional distress.

Case File

A 40-year-old morbidly obese man with a family history of colon cancer presented for his first screening colonoscopy. During his deposition, the patient described his experience as follows.

After waiting for a half hour in the waiting room, he was called back for a meeting with the intake nurse. When he reported that he was not able to completely consume the prescribed bowel-cleansing solution, the nurse reprimanded him and told him the procedure might need to be rescheduled. Nonetheless, she told him to change into a hospital gown, which was so small that the patient’s entire backside was exposed.

When the patient was wheeled into the endoscopy suite, he was met by an unfamiliar, angry-looking gastroenterologist. The gastroenterologist did not introduce himself. When the patient asked for general anesthesia, the gastroenterologist told him he was too fat. The gastroenterologist then told the nurses to have the patient roll onto his side. However, the examination table was not wide enough for the patient to do this without difficulty. When the patient complained that he felt like he might roll off the table and asked if a bigger table was available, the gastroenterologist told him that they didn’t have any tables for patients his size and that he would have to go to the hospital if he wanted a bigger table. The patient decided he would go forward, despite the small table.

A few minutes after the scope was inserted, the patient reported sharp pains in his abdomen. The gastroenterologist told the patient to relax and continued to advance the scope. When the patient started moaning, he was told to stop complaining. The patient tried to be quiet, but he couldn’t help it and eventually cried out and tried to get up from the table. The gastroenterologist pushed him back down and loudly told him to stop moving around or the scope would put a hole in his colon. The gastroenterologist then announced the procedure was over and roughly removed the scope. He told the patient that feces were blocking his colon and he could not continue. He then left. The nurse apologized for the gastroenterologist’s behavior and explained that poor colon prep often brought out the worst in him. The patient couldn’t believe there were feces blocking his colon because he had been having watery diarrhea for the past four days. He believed the gastroenterologist must have stopped the procedure to punish him.

Shortly after the procedure, the patient filed a complaint with the medical board, a grievance with his health insurer and filed a lawsuit against the gastroenterologist and endoscopy practice. The patient claimed such a degree of fear and anxiety from this experience that he could not bring himself to obtain another colonoscopy, then worried that he would die from undiagnosed colon cancer at a young age, just like his mother had.

Discussion

The gastroenterologist recalled he had encountered stool throughout the patient’s colon, but he had been able to advance the scope up to the splenic flexure, where he encountered solid stool that was impassable. He therefore terminated the procedure. The gastroenterologist also recalled that the patient was unpleasant to him and his staff and made a lot of noise during the procedure. He explained that the patient was not a good candidate for complete anesthesia because of his obesity and history of heart disease. He admitted to having trouble treating morbidly obese patients for both personal and medical equipment-related reasons. In retrospect, he believed that the patient should have had the colonoscopy done in the hospital, which had equipment to accommodate morbidly obese patients.

Because the patient’s sole allegation was intentional infliction of emotional distress, the defense of the claim would depend in large part on how believable the patient’s story was and whether a jury would believe the patient’s testimony about abusive comments over that of the gastroenterologist. In the patient’s favor, he was in a clearly vulnerable position, not only because of the nature of a colonoscopy, but also because he was wearing a gown that did not cover his girth and was on an examination table that did not accommodate him — this would cast the gastroenterologist (who was also the owner) as insensitive towards obese patients if the matter reached a jury. Furthermore, the nurse’s alleged comment tended to show that the gastroenterologist had a history of mistreating unprepared patients. Additionally, the patient made a good impression during his deposition and the defense team felt his story could be believed by a jury. The defense team further surmised that the patient’s experience with the gastroenterologist must have been very upsetting due to the lengths the patient had gone to in order to have him held accountable.

Despite this, the defense team believed this case could be defended. The gastroenterologist also was expected to present well in front of the jury. In deposition, where he came across as believable, he denied treating the patient with disrespect, calling the patient “fat” or using any other derogatory language. However, he admitted he most likely raised the patient’s obesity as a medical issue. He adamantly denied roughly removing the colonoscope or terminating the procedure out of spite. He admitted to forcing the patient back on to the examination table to keep him from injuring himself. He also admitted he often spoke to patients in a loud voice, but that it was necessary because they were under sedation. In his opinion, the patient had misconstrued his words and actions.

Shortly before trial, the gastroenterologist requested that the case be settled for a minimal amount. He did not want to go through a trial and was not comfortable with the potential of a plaintiff’s verdict.

Case Two: Physician Empathy Can and Does Decrease Liability Risk

Medical liability risk appears related to patient dissatisfaction with various physician attributes associated with empathy.¹ NORCAL claims specialists will tell you that good rapport with patients who later experience unexpected outcomes can have a significant effect on whether patients file lawsuits, and if they do, their willingness to dismiss or settle claims for reasonable amounts. In the following case, the surgeon’s relationship with the patient and empathic response to an unexpected outcome kept the patient from filing a lawsuit against him.

Issue

Good rapport with the surgeon resulted in the patient requesting reimbursement of out-of-pocket expenses with no pain and suffering damages and no lawsuit, even though the surgeon’s negligence most likely caused the patient’s injuries.

Case File

A 50-year-old patient was referred to a surgeon for esophageal strictures. During the pre-surgical consultation, the surgeon went through the risks, benefits and alternatives of the procedure. He specifically discussed the patient’s history of gastroesophageal reflux disease (GERD) and how it affected the risks, alternatives and benefits determination. The physician and patient determined that endoscopic surgery to stent his esophagus was the best choice.

During the procedure, the patient’s esophagus was perforated. When the perforation was discovered, the surgeon informed the patient and told him about the plan to repair it. He apologized without admitting guilt and never pointed fingers, although he believed that the patient’s injuries most likely occurred during general anesthesia induction. Due to infections and other complications, which required extensive surgeries and procedures, the patient spent two months in the hospital. The surgeon visited frequently to check on the patient’s progress, offer support and answer questions. He got to know the patient’s wife and children. When the patient was finally discharged, he had residual discomfort from the various surgeries he had endured, but he was otherwise expected to make a full recovery.

Unfortunately, the hospitalization and recovery made it impossible for the patient to work for close to a year, which put the family under significant financial strain. The family considered filing for bankruptcy, but then it occurred to them that the surgeon (whom they believed had caused the perforation) might reimburse them for their out-of-pocket expenses and the lost income. The patient emailed the surgeon, explained their reasoning and requested a reasonable amount. The surgeon referred the matter to the NORCAL Claims Department. A defense expert reviewed the file and came to the determination that the perforation was caused by the surgeon’s negligence. The patient told the claims specialist that he had carefully considered filing a lawsuit to pursue pain and suffering damages in addition to the lost wages and out-of-pocket expenses. However, he and his family liked and respected the surgeon and did not want to involve him in a lawsuit. The claims specialist was able to confirm the income loss and out-of-pocket expenses amounts and the matter was settled for the amount the patient requested.

Medical Liability Risk Management Recommendations

Being empathic with every patient does not have to be uncomfortable, difficult or time consuming. Consider the following strategies:^2,3,4,5,6,7

• Try to make every patient feel like he or she is the most important part of your day.
• Stand in the patient’s shoes when considering their emotions, needs and health issues.
• Learn more about nonverbal communication — facial expressions, micro-expressions, body language, eye reading, tone of voice — to aid in the understanding of patient feelings.
• Project pleasantness and ease even when you are not feeling it.
  • Increase your awareness about your own nonverbal communication.
    • Ask a staff member to observe your interactions with a few patients to gauge your empathy.
    • Listen to how known empathic communicators (e.g., colleagues, leaders, friends, television personalities) use their voices to express empathy, and practice this for times when empathy is a struggle.
      • Practice saying phrases in the mirror that call for empathy (e.g., “I imagine it must be difficult to...”), judge your abilities and make adjustments.
• Try not to be judgmental. Strive for a relationship in which you are perceived as a healer and ally, not simply a service provider.
• If you have trouble being empathic with a particular patient, try to figure out why and how to overcome it.

During the Patient Encounter

• Knock on the door before entering the exam room.
• Smile when you enter the room.
• Greet patients using their names.
• Make and maintain eye contact.
  • If you use a computer, put the computer or patient in a position that allows you to face the patient. If that is not possible, invite the patient to join you while you type into their record.
• Sit at the patient’s level.
• Apologize for patient wait time, even if it was a short time.
• Use social touch (e.g., hand shake, pat on the back), but don’t overdo it.
• Use motivational interviewing techniques to come to an understanding of:
  • What is important to the patient
  • What the patient thinks is causing his or her health issues and how he or she thinks the issues can be addressed
  • What the patient is feeling about his or her health issues and why he or she is feeling that way
• Start the examination with an open-ended question, such as “What brings you here today?”
• Actively listen to the patient for at least a minute before interrupting.
  • It only takes a patient about 29 seconds to state a chief complaint; but physicians, on average, only give patients 18 seconds before interrupting them.⁸
• Observe and respond to the patient’s body language and facial expressions — what the patient is saying may not sync with the patient’s non-verbal communication.
• Get a sense of the patient’s emotional state and priorities before analyzing problems.
• Acknowledge and validate the patient’s emotions and concerns.
• Reflect back the patient’s perceived symptoms, medical history, feelings, values, ideas and concerns with open-ended phrases.
  • Invite the patient to correct your understanding of what has been reported, and then incorporate the correction into a new short summary.
• Avoid using medical jargon.
• Try to become interested in the patient’s story.
• Try to imagine the patient’s situation.
• Offer support and partnership.
• Learn how to recognize times when empathy may be counterproductive, for example, when patients indicate they don’t want to share how they are feeling.

References

1. Hickson GB, et al. “Patient Complaints and Malpractice Risk.” JAMA. 2002; 287(22):2951-7. (accessed 9/24/2018)

2. Hardee JT, Platt FW. “Exploring and Overcoming Barriers to Clinical Empathic Communication.” Journal of Communication in Healthcare. 2010; 3(1):17-23. (accessed 9/24/2018)

3. Bernard R. “How To Be a Rock Star Doctor.” 2015 Publisher: Author. (resource not available online)

4. Hardee J. “An Overview of Empathy.” The Permanente Journal. Fall 2003:7(4):51-54. (accessed 9/24/2018)

5. American Osteopathic Association. “Empathy in Medicine.” (accessed 9/24/2018)

6. Montague E, et al. “Nonverbal Interpersonal Interactions in Clinical Encounters and Patient Perceptions of Empathy.” J Participat Med. 2013; 5:e33. (accessed 9/24/2018)

7. Lussier M, Richard C. “Reflecting Back: Empathic Process.” Canadian Family Physician. 2007;53(5): 827-828. (accessed 9/24/2018)

8. Beckman HB, Frankel RM. “The Effect of Physician Behavior on the Collection of Data.” Ann Intern Med. 1984;101(5):692–696. (accessed 9/24/2018)