Communication or lack thereof is the most common theme found in medical malpractice litigation. George Bernard Shaw once famously said: “The single biggest problem in communication is the illusion that it has taken place.” Proper communication is necessary among all participants in a patient’s care, including communication with the patient. Obviously, physicians must communicate adequately with their patients so that the patients are able to make informed decisions about their healthcare. Proper communication is not only necessary prior to a treatment or procedure, but is just as important during and after the treatment process. Communication among caregivers is also vital to the proper management of a patient. This includes physician-to-physician, physician-to-nurse, and shift-to-shift communications. Oral and written communications are equally important and must be given their proper attention pursuant to the circumstances. Discussions with a patient’s family members, especially at the time of discharge, also have an impact on whether poor communication influences a patient’s decision to sue.

A recent study by CRICO Strategies directly linked patient deaths to poor communication. The study analyzed over 23,000 medical malpractice claims and suits and found that at least one specific breakdown in communication that contributed to patient harm was present in almost one-third of the cases [8]. Twenty-seven percent of those cases involved surgery [8]. An in-depth review of more than 7500 surgery-related cases revealed that 26% involve significant communication errors [8].

The breakdown between the inpatient and ambulatory settings was fairly even at 44% and 48%, respectively [8]. There was also a fairly even distribution of cases where the breakdown of communication was between two or more healthcare providers or between the providers and their patients [8] (Table 3.1).

The opportunity for communication errors in surgical cases can occur before, during, and after the surgery. Prior to surgery, failing to properly educate the patient on the procedure’s risks, benefits, alternative treatments, and potential outcomes—better known as the informed consent process —is one allegation that occurs frequently in medical malpractice suits. The potential for communication miscues during a surgical procedure is endless. Such errors can occur in writing—whether failing to follow written surgical protocols or clearly documenting in the medical record. Verbal mishaps are also of great potential, ranging from miscommunication concerning instruments and equipment to failing to communicate the patient’s status. Finally, postoperative communications can occur in a myriad of ways between caregivers, between caregivers and the patient (and/or family members), and in the written medical chart.

Patients are more likely to sue arrogant and less caring physicians than they are to sue kind and compassionate physicians. The decision to sue one’s physician is usually a very personal and difficult decision to make—especially when that physician is well liked by the patient. When the physician is arrogant, or seems not to care about the patient, the consideration of the personal relationship between the patient and physician is less of a factor. When it is considered, however, and the relationship is viewed in a negative light, it can become a catalyst to sue. In one survey of over 225 patients that sued their physician, a number of respondents stated that in addition to the injury, the lack of sympathy and poor communication that occurred subsequent to the incident was influential in the decision to sue [9].

In the eyes of the patient , the arrogant and dismissive physician does not have time for the patient. The patient is of the mind-set that the physician did not carefully discuss the risks, benefits, and alternatives to the treatment; did not allow the patient to ask meaningful questions; and provided an overall negative experience for the patient. When a complication occurs, the patient often refers back to the interactions with the physician and concludes that the physician did not care about the patient, had no interest in learning about the patient’s unique circumstances, and therefore the surgical technique must have been careless and hurried. Arrogance and the lack of caring during postoperative visits solidifies these thoughts and pushes the patient even further in the direction of suing the physician.

In contrast, a physician who has compassion and takes time to communicate with the patient establishes a much better rapport and level of trust. The patient does not feel like he or she is “just another number” and has a better understanding of the treatment in question. The patient also feels that he or she and the physician are on the same team and that they are going through the treatment process together.

At the outset, it is important to recognize that patients seek medical attention to find a cure. Sometimes this expectation is warranted, sometimes it is not. It is also important to recognize that when patients seek assistance from institutions or physicians with certain name recognition or reputations, they believe they will be cured. In fact, they may have been to several previous physicians who praised these healthcare providers and advised the patients that only a select number of physicians can solve their problem. The patients sometimes pay large sums of money and travel long distances to seek this treatment. Certainly, after all of this trouble, they expect to be cured. If they are not, or if a complication occurs, they believe the physician must have done something incorrectly.

Scenarios like the aforementioned play out in the minds of patients throughout this country every day. One manner in which to prevent the patient from immediately accusing a physician of negligence upon the occurrence of a complication is to properly and thoroughly educate that patient. Patients have high expectations, and rightfully so, but they also need to understand that complications do occur in the absence of negligence. Patients must understand the risks, benefits, and alternatives to a procedure or surgery. They must understand that the possible outcomes can range from death (in some cases), to complete cure, and all potentials in between. When these factors are communicated to the patient, an unexpected outcome should not come as a complete surprise. . Setting these expectations should immediately lessen the knee-jerk reaction that negligence occurred. Involving the patient’s family members (when appropriate) in the informed consent process is also prudent. Obviously, documenting that the informed consent process took place is necessary and will greatly assist in the defense of medical negligence allegations.