The Verdict is In
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The Cost Of Failed Communication

"The single biggest problem in communication is the illusion it has taken place."
- George Bernard Shaw.

The art of communication is not historically taught as a clinical skill, yet the effect of poor communication in healthcare has serious consequences. Information exchange between providers as well as with patients guides clinical decision-making. Industry analysis of malpractice trends across medical specialties consistently identifies gaps in communication as a root cause of patient harm and/or the perception of negligence leading a patient to sue.

Communication failures occur for a myriad of reasons in patient care. Ineffective policies and procedures, language difficulties, poor communications skills, workload pressures, staffing/resource scarcity, EHR issues, and ineffective systems within hospitals all contribute.

The following examples shine light on cases where communication gaps contributed to patient harm and triggered litigation.

Case 1: Communication regrets with consultants. A 77-year-old was seen in the ER for abdominal pain. The advanced provider reviewed his CT report with an impression indicating there was a small bowel obstruction. Meanwhile, the patient reported his pain resolved after a GI cocktail. After a brief presentation to the supervising physician, the advanced provider was told to consult surgery. The surgical resident listened on the phone to the clinical history and did not feel the presentation was consistent with an SBO. Without seeing the patient or reviewing the medical record, the resident advised outpatient follow-up was appropriate. The advanced provider discharged the patient with instructions for outpatient follow-up. The supervising physician was not aware the attending surgeon was not consulted, and the attending surgeon was not aware of the consult provided by the resident. The patient expired at home approximately 8 hours after discharge. In the litigation process, each provider wished communication had gone differently. The time saved not taking the needed steps that day pales in comparison to the amount of time it took to resolve this case.

Case 2: A series of unfortunate gaps. A 53 y/o was admitted to inpatient status for chest pain. During her stay, one study was not completely normal and the result required outpatient cardiology follow-up. It was felt she could be discharged as she did have a cardiologist in her hometown. While the patient and physician were on the same page regarding discharge, the patient did not have a clear understanding of the abnormal results or need for more testing. Her home cardiologist was not consulted, nor her PCP. Subsequently she did not have timely follow-up and instead first scheduled an elective cholecystectomy. There was an incomplete pre-operative history, and it was unknown she was supposed to have additional cardiac testing. She suffered an MI post anesthesia. In the litigation process, provider liability exposure could have been minimized or removed by ensuring understanding of all test results and contacting primary treaters.

Case 3: Patient consent and refusal discussions. A febrile infant seen in the ED had laboratories tests revealing a leukocytosis and elevated CRP. There was no obvious source of fever. Family (who work in medicine) declined the LP. After a poor outcome the family sued the EM provider for failure to diagnose meningitis and admit the patient despite having significantly abnormal labs. In deposition, family recalled being offered the LP, but said they did not have recollection of a discussion of the risks of declining nor did they recall being given an alternative option other than discharge (if the LP was not performed). There was no specific documentation in the chart of the specific risks of refusal were discussed.

Case 4: Incidental findings. A 49 y/o had a CT for abdominal pain. Overread of the CT the next day showed a lung mass. Neither the patient nor his PCP were communicated these results. Lost to follow-up, this patient returned to the ED months later with a chief complaint of weight loss and vague abdominal pain. His CT now revealed metastatic cancer.

Case 5: Communication fails harm, while excellent communication wins. A 70 y/o was seen in the ED for chest pain. Initial troponin was normal, and the patient did not want to stay for repeat troponins. The ED physician went through the informed refusal process. He explained if she declined his medical advice to stay, the next best alternative was at least to have a repeat blood draw for a second troponin prior to leaving. As part of their discussion, he said he would call her with the second troponin result and asked her to promise to return if elevated. He documented all the details of this discussion. The repeat troponin was elevated, the patient was called back, she returned and was admitted. The ED physician attempted to consult the cardiologist, but the cardiologist said this did not sound cardiac and hung up the phone. This communication quandary created a delay in a formal cardiology consult. The hospitalist followed the third troponin and, in the night, transferred the patient to a higher level of care where she could have an angiogram. The patient was found to have a complete LAD occlusion and arrested during the procedure. This unfortunate outcome did lead to litigation. The ED and HM physicians both successfully defended their care (even in light of the terrible outcome) based on the evidence of their excellent communication and patient advocacy.

When it comes to the arena of the liability, history has shown society and the courts deem the burden of "successful" communication lies with the physicians and advanced providers. The physicians and advanced providers ultimately have the responsibility for initiating, clarifying, facilitating, documenting, and reinforcing discussions related to patients’ conditions, treatments, and prognosis. We must study our personal practice pitfalls, be proactive to enhance our "soft skills", and fix system issues to minimize both the patients' and our risk.

Tangible ways to improve:

Empathy training and focus on soft communication skills: Carefully listen to patients, gather information, reassure patients to calm fears, answer honestly, and educate about treatment options and plan. Do not assume patients and families have knowledge of medical matters. Ensure important information is not just conveyed but is both received and understood.

Utilize an effective consent process: Take the necessary time to allow the patient to make an informed decision to consent or refuse. Transparency increases trust, improves understanding, elicits patient participation in discussion and reduces risk of harm and liability.

Timely and accurate documentation: Remember your documentation of this discussion is also a form of communication. Your note is key for subsequent providers to continue quality care. Patients rely on your notes more frequently now to better understand their diagnosis, prognosis, and plan. In the time when you will feel you need it the most, your note can also communicate to a potential plaintiff and jury the justification for your medical decisions.

Use strategies to respond to patient complaints or unfortunate outcomes: Let your patients (and their family) know you care. This is the time to show up with compassion. Listen and allow them to talk without interruption, avoid becoming defensive or hostile, express empathy, determine what the patient wants, explain what can and cannot be done, and discuss alternatives. Engage support for family meetings where needed. Call The Mutual for guidance and we'll help you prepare.

Update outdated communication systems and do not employ shortcuts: Speak to your consultants and do not rely on computer entry or the EMR.

Supervision: Advanced providers and supervising physicians should be in good communication and work together on the disposition for any patient where the clinical picture does not fit the studies and findings. If the advanced provider has pushback from a specialist, the advanced provider should communicate the need to the supervising physician to get involved.

Survey Questions

1. Communication pitfalls increase poor outcomes and litigation risk:

  1. True
  2. False

2. History has shown society and the courts deem the burden of "successful" patient-physician communications lies on the physicians/advanced providers:

  1. True
  2. False

3. When patients are angry and complain, it is best for the physician or advanced provider to avoid them.

  1. True
  2. False


Malpractice Risks in Communication Failures: 2015 Annual Benchmarking Report by CRICO
Study of communication with EM Peds Patients (2022)