October 2015: Medical Malpractice: Does Physician Gender Matter?

Publication Quarter: 
Fall 2015 (October)

A recent study published in BMC Medicine, "Sex Differences in Medico-Legal Action Against Doctors: A Systematic Review and Meta-Analysis," revealed that male physicians are nearly 2.5 times more likely than their female counterparts to experience a medico-legal action, such as disciplinary action by a medical regulatory body or a claim of medical malpractice. These findings were consistent over a number of years, across a range of study designs, and with a wide definition of outcome types, leading the authors to conclude that "there is likely to be a fundamental reason to explain why male doctors are at over two times the odds of experiencing a medico-legal action."

FOJP's data have never been evaluated to determine whether gender plays any role in who is named in a lawsuit. This month's tip examines how poor patient-physician communication contributes to claims of medical malpractice and also looks at some of the literature that has examined the ways in which male and female physicians differ when it comes to patient communications. Finally, this tip outlines communications strategies that all physicians-regardless of gender-can follow to improve their patient-physician relationships and possibly mitigate their likelihood of a medico-legal action in the future.

Patient‒Physician Relationships and Medical Malpractice

Ineffective communication that leads to a breakdown in the patient-physician relationship is a common theme in malpractice cases. A Baylor Health Care System study, "Communication Gaffes: A Root Cause of Malpractice Claims," found that patients involved in litigation frequently stated that their physician(s) exhibited one or more of the following behaviors:

  • Would not listen

  • Would not talk openly

  • Attempted to mislead them

  • Deserted patients or were otherwise unavailable

  • Devalued patient or family views

  • Delivered information poorly

  • Failed to understand the patient's perspective

The authors of the Baylor study concluded that "patients are not likely to sue physicians with whom they have developed a trusting and mutually respectful relationship. Simply put, patients do not sue doctors they like and trust."

A survey of "claims-free" and "claims-experienced" physicians conducted by a large professional liability insurer earlier this year supports the Baylor Health Care System study. In the new survey, more than 1,700 claims-free physicians cited the following as the top factors that contributed to their favorable claims status:

  • Perceived by their patients as caring and trustworthy

  • Spend sufficient time with patients during their visits

  • Do not practice beyond their capabilities

In addition, 35 percent of all survey respondents (both claims-free and claims-experienced physicians) indicated that they had experienced an adverse outcome in their practice that could have led to a malpractice claim, but did not. When asked to indicate the factors that they believed helped prevent a lawsuit despite the adverse outcome, the top three responses were:

  • Care and treatment were appropriate following the adverse outcome

  • A good relationship had been established prior to the adverse outcome

  • A relationship was maintained with the patient/family after an adverse outcome

Patient Communication: How Male and Female Physicians Differ

If poor physician-patient communication is a factor in malpractice claims-and female doctors are less likely to be sued for medical malpractice-what lessons might be taken from the manner in which female physicians interact with their patients?

The 2002 study, " Physician Gender Effects in Medical Communication: A Meta-Analytic Review," suggested that female physicians engage in more patient-centered communication and have longer visits than their male colleagues. In addition, this study also postulated that female physicians exhibited greater use of emotional talk, greater use of positive talk, and more actively enlisted patient input. The authors stated that "taken together, the differences reflect a patient-centered communication style that inspires patient reciprocation and is likely to reflect a more intimate therapeutic milieu of heightened engagement, comfort, and partnership."

Similarly, a 2013 study, " Empathy in Clinical Practice: How Individual Dispositions, Gender, and Experience Moderate Empathic Concern, Burnout, and Emotional Distress in Physicians ," demonstrated that female physicians reported significantly greater empathy than their male counterparts. The authors noted that "patients desire an empathic physician who listens and expresses an understanding of their medical condition. Empathy is a highly desirable professional trait, since empathic communication skills promote patient satisfaction, establishes trust, reduces anxiety, increases adherence to treatment regimens, improves health outcomes, as well as decreasing the likelihood of malpractice suits."

Tips for Effective Patient - Physician Communication

There is a wealth of information available offering guidance to improve patient-physician communication.

An information statement from the American Academy of Orthopaedic Surgeons (AAOS) recommends that its members use a number of patient-focused skills during direct patient encounters, including the following:

  • Sitting down during patient encounters

  • Developing an understanding of the patient as an individual, not as a disease or a musculoskeletal condition

  • Showing empathy and respect

  • Listening attentively and creating a partnership

  • Eliciting concerns and calming fears

  • Answering questions honestly

  • Informing and educating patients about treatment options and the course of care

  • Involving patients in decisions concerning their medical care

  • Demonstrating sensitivity to patients' cultural and ethnic diversity

Similarly, the American College of Gynecologists and Obstetricians (ACOG) issued an updated committee opinion in 2014 regarding effective patient-physician communication. The committee opinion recommended, in part, that practitioners:

  • Use patient-centered interviewing and caring communication skills in daily practice.

  • Encourage patients to write down their questions in preparation for appointments. A form for writing down questions can be given to patients on their arrival at the office. An organized list of questions can facilitate conversation on topics important to the patient.

  • Consider arranging for a communications consultant to conduct a workshop on cultural and gender sensitivity for physicians and office staff based on the needs of an individual practice.

  • Consider hiring nonphysician health care providers, such as advanced practice nurses or physician assistants, with patient-centered interviewing skills to assist with established patients.

  • Advocate for sustainable practice models that increase the duration of visits to provide the opportunity to address multiple patient concerns. Increased time for visits is crucial in efforts to improve patient-centered interviewing, shared decision making, and improved patient-physician communication.

Conclusion

Patients' reactions to adverse outcomes are extremely variable, and their motivations in bringing lawsuits are complex. Absent more compelling data, FOJP is not prepared to subscribe to the proposition that a provider's gender is a relevant factor. The recently published BMC Medicine study referenced earlier, however, raises an interesting question and is accordingly noted in this column. All physicians-regardless of gender, age, years of experience, or clinical specialty-can improve their communications skills. Fostering patient-centered communication can strengthen patient-physician relationships, lead to greater patient satisfaction, improve clinical outcomes, and decrease the likelihood of malpractice claims. Actively engaging patients before-and AFTER-complications or adverse outcomes may well reduce the risk of legal action.