• A Lawyer’s Consideration of Qualities Patients Expect from Their Physicians
  • June 16, 2017 | Author: Richard Hunsaker
  • Law Firm: Heyl, Royster, Voelker & Allen Professional Corporation - Edwardsville Office
  • One common theme defense lawyers hear from their physician clients is that the concept of a civil jury trial is fundamentally flawed because a jury will never be composed of the physician’s peers who are equipped by education and training to evaluate standard of care issues. While true, the charge misses the point of why lay juries have been delegated the task of resolving civil legal disputes for more than two centuries. The counterpoint to the “learned peer” criticism sometimes leveled against our present civil jury system is that it is better to have independent lay jurors resolve civil disputes than judges or specially empaneled juries of “experts” who may not be truly independent decision makers.

    After acknowledging how lay juries are selected and instructed, a good starting point in determining how to reduce the risk of litigation and, at the same time, how to prevail when sued, is to recognize that each person who serves on a jury shares the common experience of having been a patient and also having made an assessment of what qualities to look for in selecting a physician. Most seasoned trial lawyers appreciate that when juries deliberate, they often use their past experiences with doctors to judge the outcome of a case where medical negligence has been alleged. So while lawyers and judges approach their cases by evaluating the law applicable to medical negligence claims, there is much more than legal principles and jury instructions at play when the jury is sent to deliberate on a verdict following the close of the evidence.

    In the March 2006 edition of Mayo Clinic Proceedings, a study focusing on patients’ perspectives of ideal physician behavior was reported.1 The study, which involved 192 patients who were seen in 14 different medical specialties at two separate Mayo facilities, measured patient experiences, both good and bad, to distill those qualities which resonate with patients as being either strongly positive or strongly negative. Interestingly, these qualities track what defense lawyers have heard from individual jurors who explain why they rejected the claim of an injured patient bringing a medical negligence case. Often, one hears anecdotal comments from jurors such as: “He seems to be a good doctor”; “He seems to care about his patient”; “She struck me as careful”; or “She seemed very knowledgeable.” While such critical assessments obviously drive jurors to decide how to vote in a medical negligence case, it is worth noting that such considerations of character and motive do not spring from the pattern instructions which jurors are directed to follow in reaching a verdict. Perhaps the best anecdotal evidence illustrating the reality of jury deliberations was the experience of the lawyer who, after being given permission to interview a jury which had just returned a verdict in favor of a physician, heard the following comment from the jury’s foreperson: “We did not believe the doctor was guilty of malpractice. We think he messed up. He should have ordered the colonoscopy following the history of rectal bleeding. But, we like him and we think he is a good doctor who obviously was doing his best for the patient.” The plaintiff’s attorney was beside himself after hearing these comments. His case was premised on the simple principle that when a patient in her 50s experienced rectal bleeding, the standard of care required that the doctor recommend a colonoscopy. It is worth noting that the jury comments were obviously influenced by the fact that the doctor was extremely calm, likable, honest and knowledgeable when on the witness stand. Moreover, he was able to confidently explain why he did not document that he recommended a colonoscopy. These qualities obviously carried the day for the physician in a case where the evidence could easily have warranted a verdict in favor of the patient.

    Armed with the knowledge that jurors evaluate cases of medical negligence through the shared eyes of patient experience, the Mayo article illustrates what physicians should do when interacting with patients to create the best possible impression. Equally important, the study is very instructive in helping physicians understand why those essential behaviors displayed in their practices must also be obvious after taking the witness stand.

    Following detailed analysis of patient surveys, the Mayo research team concluded that its study identified seven ideal behaviors which patients expect of physicians. They are set out as follows:

    Ideal Physician Behaviors, Definitions, and Supporting Quotes

    Ideal physician behaviors

    Definitions

    Representative quotations*

    Confident

    The doctor's assured manner engenders trust. The doctor's confidence gives me confidence.

    “You could tell from his attitude that he was very strong, very positive, very confident that he could help me. His confidence made me feel relaxed.”

    Empathetic

    The doctor tries to understand what I am feeling and experiencing, physically and emotionally, and communicates that understanding to me.

    “One doctor was so thoughtful and kind to my husband during his final days. He also waited to tell me personally when he found a polyp in me, because my husband died from small bowel cancer and he knew I would be scared.”

    Humane

    The doctor is caring, compassionate, and kind.

    “My rheumatologist will sit and explain everything, medication, procedures. I never feel rushed. He is very caring. If I call, he always makes sure they schedule me. He told me he knows when I call, it is important. I appreciate his trust.”

    Personal

    The doctor is interested in me more than just as a patient, interacts with me, and remembers me as an individual.

    “He tries to find out not only about patients' health but about their activities and home life as well.”

    Forthright

    The doctor tells me what I need to know in plain language and in a forthright manner.

    “They tell it like it is in plain English. They don't give you any Mickey Mouse answers and they don't beat around the bush.”

    Respectful

    The doctor takes my input seriously and works with me.

    “She checks on me. She also lets me participate in my care. She asks me when I want tests, what works best for my schedule. She listens to me. She is a wonderful doctor.”

    Thorough

    The doctor is conscientious and persistent.

    “My cardiac surgeon explained everything well. The explanation was very thorough. He was very concerned about my recovery after the surgery. I thought it was special how well he looked after me following the surgery. Not all surgeons do that. They are not interested in you after you are done with surgery.”


     *The quotations in this table are excerpts of longer quotations in the transcripts. Respondents commonly mentioned multiple attributes in describing their best physician experience. For example, the quotation used to illustrate “humane” also incorporates “respectful” and “thorough” and was coded accordingly.

    The enumerated qualities: Confident, Empathetic, Humane, Personal, Forthright, Respectful and Thorough are neither surprising nor mutually exclusive. Put in slightly different terms, some lawyers express the important traits as the “Big C’s”: Confident, Credible, Competent, Compassionate, Caring and Comprehensive. However worded, it seems clear that patients want their doctors to exhibit those qualities associated with strong, capable, smart, and empathetic problem solvers.

    The findings reported in the Mayo study are just as useful for attorneys attempting to prove medical negligence as they are for lawyers engaged to defend medical professionals in cases where medical negligence is alleged. A burgeoning strategy seen in many medical malpractice cases is a series of questions which revolve around patient safety. From the plaintiff’s (patient’s) perspective, trial lawyers have developed a battery of techniques to convince juries that otherwise experienced and trained physicians either don’t care about or ignore recognized safety practices. This approach, termed the Reptile strategy, can be used to counteract evidence illustrating that the physician is confident, empathetic, humane, personal, forthright, respectful or thorough.2 The tactic most often employed by plaintiff’s lawyers is to review with the physician policies, procedures, literature and basic principles of patient safety and then show that these safety practices were not considered or applied in the care at issue before the jury. Strategies premised upon the failure to adhere to policies grounded in patient safety are employed to both neutralize evidence of ideal physician behavior and to generate fear and anger in the minds of jurors. The thinking of those that adhere to this approach is that once a jury is fearful or angry because practices designed to keep the patient safe were not followed, it is much easier to convince the jury to punish the offending parties by returning a large jury verdict in the patient’s favor.

    Ultimately, a trial often revolves around a clash of narratives: good doctor, who displayed those traits associated with patient expectations vs. reckless doctor, who purposefully ignored institutional policies and procedures designed to enhance patient safety.

    Conclusion

    As noted, the Mayo study did not involve the evaluation of cases which resulted in medical negligence claims. Nevertheless, the study is essential in understanding how patients evaluate and judge physicians. Remember, jurors are instructed to use “common sense gained from your experiences in life, in evaluating what you see and hear during trial.”3 Seasoned trial lawyers can attest to how those physicians who illustrate ideal behaviors are much more likely to convince a jury to reject a claim of medical negligence. Just as important, it is essential for physicians to display these behaviors while interacting with a patient or family member. This is not easy - particularly when attempting to manage a complication or bad outcome in a short period of time where prompt decision making is essential. And it must be recognized that even if the physician displays all of the ideal behaviors in face to face interactions with the patient or family member, it is also important that the record created by the physician or care giver reflect the time, depth of thought, willingness to listen, and the physician’s concern for the patient’s well-being. Documenting conduct consistent with ideal behaviors, even in the heat of managing a difficult case, will serve you and your patient well. And, in those unfortunate scenarios where your care is the subject of a medical negligence case, they are essential in showing a jury that just because the plaintiff’s lawyer aggressively characterizes the doctor otherwise, the medical record and the demeanor of the physician while in court reflect those ideal behaviors which resonate with patients and jurors alike.
     


    1 Neeli M. Bendapudi et al., Patients’ Perspectives on Ideal Physician Behaviors, 81 Mayo Clin. Proc. 338, 340 (2006).

    2 Reptile - The 2009 Manual of The Plaintiff’s Revolution, by David Ball and Don C. Keenan.

    3 Illinois Pattern Jury Instruction 1.01[4].