NSO: Why patients sue — and how effective communication can help avoid a lawsuit

No healthcare provider welcomes being on the receiving end of legal action from a patient. A lawsuit can leave providers feeling frustrated and disappointed. After all, as a nurse, you are committed to delivering quality care and likely pride yourself on your positive relationships with your patients.Unfortunately, sometimes situations emerge that prompt patients to file lawsuits. But by understanding the reasons behind why patients often file lawsuits can help you take steps to prevent them. Why a lawsuit?

Based on an analysis of several articles, Huntington and Kuhn identified four reasons why patients file a lawsuit: (1) a desire to prevent a similar (bad) incident from happening; (2) a need for an explanation as to how and why an injury happened; (3) a desire for financial compensation to make up for actual losses, pain, and suffering or to provide future care for the injured patient; and (4) a desire to hold providers accountable for their actions. Huntington and Kuhn note that the dominant theme in the studies was a breakdown in the patient-provider relationship because of unsatisfactory communication. (Although these studies focused on physicians, it’s likely the findings would apply to other providers, including nurses, as well.) Examples of communication issues included patients feeling providers did not listen to them, did not talk openly, did not warn them of future problems, did not understand their perspective, devalued their views, and mislead them.  Establishing a positive relationship that includes effective communication can do much to prevent legal action. Huntington and Kuhn note that patients do not sue providers whom they “like and trust.” Notably, protection from legal action is not the only reason to hone your communication skills. According to the Institute for Healthcare Communication, effective communication has several other benefits, such as better diagnostic accuracy, greater patient adherence to the plan of care, higher patient satisfaction, and reduced risk of patient harm. Here are some suggestions for improving your communication skills with patients. Establish rapport

Rapport helps create a positive relationship with a patient. You can establish rapport by first greeting patients warmly. Smile, make eye contact, and if appropriate, shake hands. During the encounter, be sure your interaction with the electronic healthcare record (EHR) or your documentation does not overshadow your interaction with the patient. Sit rather than stand to indicate you are not in a hurry. Avoid crossing your arms, which can be off-putting.    Humor, if used appropriately, can help establish rapport. However, do not overuse humor and be aware that humor can vary considerably from one person to another. A critical contributing factor to rapport is respect. Demonstrate respect by engaging patients in conversation. Ask them for their input and thoughts on your ideas for treatments or strategies for following treatment instructions. Be sure to check for understanding, particularly when delivering patient education. Align your interactions with the cultural background of the patient. (One resource improving your ability to communicate with those of different cultures is the “Guide to Understanding Effective Communication and Language Assistive Services,” published by Think Cultural Health. Access the guide at https://hclsig.thinkculturalhealth.hhs.gov/). Finally, and probably the most important way to establish rapport, is to listen. Focus on what the patient is saying and not on what you plan to say next or on other tasks you still have to complete.  Set expectations

Few people like to be surprised, particularly when it comes to their healthcare. That’s why nurses need to do their part to help ensure patients know what to expect from the plan of care, including any procedures that may be necessary, or changes to medications, activities, or diet. Be realistic in what you say. Don’t make statements such as, “You’ll be fine.” Instead, Huntington and Kuhn suggest saying something like, “Barring any unforeseen problems, I see no reason why you shouldn’t do very well. I’ll certainly do everything I can to help you.” Be clear with patients about the next steps. For example, a patient scheduled for a total joint replacement needs to know what will happen in each phase of the procedure: preoperative, intraoperative, and postoperative. It would be important for the patient to know that they will ambulate soon after surgery and that they can expect to experience some pain (some patients may expect to be pain-free), although medication will be given to keep the pain manageable. Patients also should know what is expected from them. In the case of the total joint replacement example, this would include coming to the facility for pre-surgery bloodwork, attending a preoperative education program, and engaging in physical therapy. Be clear on any consequences related to not meeting expectations, such as the need to cancel surgery if preoperative bloodwork is not obtained. Defuse anger

Fear is usually the root cause of anger. Try to determine what the patient is afraid of by listening closely. For example, a patient may say they are upset because a provider didn’t tell them a medication might cause a rash, but they are really afraid the rash may indicate a serious condition or that the medication isn’t working. Once you identify the real issue, you are better able to resolve it. After hearing the patient out, Huntington and Kuhn recommend expressing empathy, and then apologizing that things have not gone the way the patient hoped or expected. Above all, do not respond defensively nor avoid the patient. The next step is to address the issue. Ask the patient what they want and explain what can and can’t be done. The goal is to re-establish a positive relationship. Be honest

The nurse-patient relationship must be built on trust, and trust depends on honesty. Being honest includes providing information related to diagnosis and test results, as well as sharing possible adverse outcomes of procedures. Honesty needs to be maintained when a complication occurs. The nurse should engage with the patient’s primary provider to ensure the patient receives an explanation why it occurred and how it can be managed. Communicating for success

A communication breakdown is a common reason why patients choose to take legal action against providers. By using effective communication techniques (sidebar), you can create a positive relationship that reduces the likelihood of lawsuits and benefits both you and the patient. 4 Es of communicationThe 4 Es communication model is an easy way to promote positive interaction at each patient encounter.Engage. Invite patients to share their health stories. Ask open-ended questions to help you find out what matters most to the patient.Empathize. Show patients that you see and hear them. Accept their values even if they are different from your own.Educate. Ask patients what they know and want to know. Answer their questions, provide written information, and ask questions to confirm their understanding.Enlist. Forge a partnership by collaborating with patients to make care decisions. Seek agreement on treatment plans and monitor progress. 

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ECRI. 4 E’s of communication for every provider interaction. n.d. https://www.ecri.org.uk/4-es-of-communication/

Huntington B, Kuhn N. Communication gaffes: A root cause of malpractice claims. Proc (Bayl Univ Med Cent). 2003;16(2):157-161.

Institute for Healthcare Communication. Impact of communication in healthcare. 2011. https://healthcarecomm.org/about-us/impact-of-communication-in-healthcare/

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