OSB Professional Liability Fund

What the Doctors Order for 2020

January 3, 2020
by Hong Dao

Let’s start 2020 off with some wishful thinking: if only there were a silver bullet to solve all issues that lead to legal malpractice claims. Wouldn’t that be great? If only lawyers were better at calendaring deadlines. If only lawyers thoroughly understood and correctly applied the law. If only they meticulously documented their files. If only….

The reality is that no single solution will guarantee a claim-free practice. But lawyers can do many things to help reduce their risk exposure, and these have been written about here, here, and here.

Yet let us look to another profession for some interesting insights on malpractice avoidance.

A group of researchers sought to determine whether a single factor increases a doctor’s chance of getting sued by their patients. In a study, the research team headed by Nalini Ambady listened to over 100 recorded conversations of medical visits between doctors and their patients with their informed consent.

Those recordings were previously made by another research team (“Levinson”) for a separate study. In that study, Levinson examined the communicative behaviors of primary care physicians that are associated with their malpractice claims history. Levinson found that physicians with no previous claims spent more time with their patients, employed active listening techniques, asked patients for their opinions, and used humor and laughed more. However, Levinson did not find specific communicative behaviors associated with malpractice in surgeons, who tended to be sued the most.  

Ambady and her team wanted to focus on surgeons, particularly on one factor:  the manner or tone in which surgeons communicated. They stripped these same recordings of their contents and listened only to the surgeons’ tone of voice. Using clips of 40 seconds, the team was able to determine which surgeons had more previous malpractice claims based solely on their voice tone.

Surgeons with dominant voice tone were more likely to have been sued than those who sounded less dominant. A dominant voice tone is usually deep, loud, moderately fast, unaccented, and articulate. Patients perceived a dominant voice as lacking in empathy and understanding toward them. Patients also positively associated anxiety expressed in a surgeon’s voice tone with concern and empathy. When a surgeon’s dominant voice tone lacks anxiety or concern, patients feel that the doctor is indifferent, leading them to initiate a claim when outcomes are poor.      

Does this mean that lawyers must now speak with a less dominant voice to their clients? No studies have been conducted to determine which tone of voice will get a lawyer in legal malpractice trouble. And this isn’t the point of the studies for lawyers.

Instead, these studies are a good reminder that how lawyers speak to their clients is just as important as what they say to their clients or what they document in the file. The studies remind lawyers of the importance of spending more time with clients, being an active listener, asking clients for feedback, and showing empathy and understanding. Lawyers cannot control many aspects of their clients’ legal matters, but lawyers can certainly control the manner in which they interact and the tone in which they communicate with clients.

The year 2020 should not be about wishful thinking. Let it be about ensuring a good relationship with clients as an effective malpractice avoidance tool. That seems to be what the doctors order.


Sources:
 

  • Ambady N, Laplante D, Nguyen T, Rosenthal R, Chaumeton N, Levinson W., “Surgeons’ tone of voice, A clue to malpractice history.” Surgery 2002;132:5-9.
  • Levinson W, Roter DL, Mullooly JP, Dull VT, Frankel RM. “Physician-patient communication: the relationship with malpractice claims among primary care physicians and surgeons.” JAMA 1997;277:553-9.