medical nature tip the scales in that direction.124

A final factor relating to the incidence of malpractice litigation is the noticeable increase in skill and proficiency of the legal profession in prosecuting suits for medical malpractice. What was once regarded as a field for medicolegal specialists only, is now an area of professional interest to many astute general practitioners who have taken it upon themselves to become educated in this special area of the law. As more attorneys become proficient in handling malpractice cases, more cases are being tried, and more successful verdicts and pre-trial settlements are being obtained. Without question, the publicizing of large verdicts and settlements further tends to stimulate a desire to sue in certain suit-prone individuals.

(b) Direct, Medical Influences

125

The ostensible basis for every malpractice suit is an unexpected and unfavorable medical event in the treatment of the patient which focuses the patient's thinking in terms of a malpractice claim. When the event is the patient's unanticipated death, his legal representatives invariably think in these terms. Surgery is a particularly hazardous aspect of medical practice and untoward surgical incidents continue to account for the majority of all malpractice suits.' This does not mean that every unfavorable medical event is either predictable or preventable, or that it automatically constitutes the basis for a malpractice claim. For reasons totally unrelated to medical technique and management, anesthesia deaths may be expected to occur in a certain percentage of surgical cases, as will maternal deaths and infant deaths in obstetrical cases. Surgical complications will frequently occur, and postoperative infections may run as high as 2 percent in the best of institutions. In light of the foregoing, it is

124 See discussion of patient psychology in Part C. 3(a). "Patients frequently forgive the accidents of medicine when they are fully informed and fairly treated. A patient who knows his doctor is really interested in his welfare and is trying hard rarely sues." Hassard, J., "Professional Liability Claims Prevention," J.A.M.A. 163: 1269 (Apr. 6, 1957).

125 Mills, D. H.: "Medical Lessons From Malpractice Cases" J.A.M.A. 183: No. 13, 1073 (Mar. 30, 1963). Out of 1,005 cases reviewed by the author, 608 involved alleged malpractice in some type of surgical procedure. For the effect these cases have had on physicians, see Mitty, W. F., Jr.: "How Surgical Practice Is Influenced by the Legal Profession," Med. Trial Tech. Q. 10: 29 (June 1964).

reasonable to expect a certain number of malpractice suits arising out of surgery which, even when not fatal, is often a source of disappointment to the over-expectant patient.

SEC. 3

PREVENTION OF MALPRACTICE CLAIMS

Affirmative steps can be taken to prevent the occurrence of malpractice suits in three distinct areas: patient psychology, patient care, and administrative matters. Each of these areas, and the suggested malpractice-prevention principles, are discussed below.

(a) Patient Psychology

Perhaps more than it is generally realized, the growing malpractice problem is essentially a human relations problem,126 with the malpractice suit itself being merely tangible proof of the final breakdown in a progressively deteriorating doctor-patient relationship. Careful analysis of the situation usually discloses a series of prior incidents indicative of the growing antagonism between the doctor and the patient. Success or failure in the management of the doctorpatient relationship is based in large part on the day-to-day interplay between the doctor's personality and the patient's personality. Speaking generally, the more reasonable and mature both the doctor and the patient are, the less likely a malpractice suit will follow when there has been an unsatisfactory medical result. On the other hand, the less reasonable and less mature are both the doctor and the patient, then the greater the chance for a breakdown in the relationship.12

At the risk of stating the obvious: Patients are human beings who want to be accorded the respect and attention they feel is their just due. Ordinarily, too little attention is given to the interpersonal

126 Sadusk, J. F., Jr.: “Medical Malpractice—Prevention,” Conn. Med. 27: 618 (October 1963).

127

Blum, R. H.: The Management of the Doctor-Patient Relationship, 253 (McGrawHill, 1960). The author points out that at least half of all malpractice suits are preventable even after some malpractice has occurred, providing appropriate consideration is given by the physician to the danger signals of the dependent, the hostile, or the suspicious patient. The cited text is recommended as an authoritative guide to the many psychological aspects of the doctor-patient relationship.

and emotional aspects of patient care, with a resultant failure to recognize the need of many patients for psychological as well as physical comfort. Treating the patient's physical illness alone may not be sufficient, and it behooves all PHS medical personnel to acquire a basic understanding of the psychological aspects of patient behavior, not only from the standpoint of malpractice prevention, but with the added objective of stimulating a greater level of cooperation from the patient himself in the joint effort to effect his ultimate recovery. The discussion which follows is intended to emphasize some of the important elements of patient psychology, and how to recognize and cope with the type of patient who is most likely to institute a malpractice suit.

(1) The suit-prone patient-Studies have shown that there is a type of patient who is more likely than others to bring suit for malpractice when some unexpected result occurs. He may be referred to as the suit-prone patient.128 The suit-prone patient exhibits emotional attitudes and unconscious fears which provide fertile soil for the growth of resentment and dissatisfaction. In most cases, he is an emotionally immature individual who is afraid of illness, doctors, and death, but is not always aware of these fears. The suit-prone patient thinks he should recover quickly and completely from his illness, and has an almost childlike faith in the efficacy of medical science. Yet, notwithstanding such faith, he instinctively mistrusts doctors, and whenever there is an inconclusive diagnosis, an ineffective course of therapy or an unexpected result, he is quick to blame the physician.

This individual is also likely to be an uncooperative patient, that is, one who either declines to state his medical complaint honestly and accurately, or who fails to follow a prescribed therapeutic regimen while pretending to do so. He finds it difficult to tell the physician what he really thinks and feels, and when placed in a situation causing him to be nervous, ashamed, inferior, or dehuman

128

See generally Levinson, C. A.: “Beware the Malpractice Plaintiff,” J. Amer. Dent. Ass'n. 62: 343 (March 1961); "Breakdown in Doctor-Patient Relationship Is Shown by Malpractice Suits," Bull. Amer. Coll. Surg. 44: 137 (May-June 1959); "The Psychology of Malpractice Suits”—Study made for the California Medical Association by Blum, R. H. (March 1957).

ized, he is likely to express his negative response to the physician or nurse by being uncooperative.129

The attitudes of the suit-prone patient reflect a basic immaturity that is revealed in all aspects of the patient's life. Thus, the physician is only one of many scapegoats he singles out as the cause of his troubles whenever something goes wrong. The occurrence of any dramatic incident, such as a surgical accident or an obviously unsatisfactory result, makes it easy for the suit-prone patient to conclude that malpractice has occurred. His decision to sue (more often to obtain revenge than to recover damages) will depend upon his own interpretation of how well he was treated, in the psychological sense, by the medical and paramedical personnel involved in his care and treatment. The seeds of a malpractice suit, therefore, are the seeds of discontent which will ripen into formal litigation whenever the patient is of the opinion that he has not received from the treating medical and paramedical personnel that degree of understanding, sympathy, and respect which he believes he is entitled to receive.

Recognizing the suit-prone patient, therefore, and making allowance for his emotional needs in an intelligent manner, can effectively eliminate many of the causes of unwanted malpractice suits. Some of the affirmative measures which can be taken by PHS medical and paramedical employees are noted in the material which follows. Before discussing these measures, however, preliminary consideration must be given to two additional aspects of patient care in which psychological factors play an important role. The first relates to the problem of the suit-prone physician, and the second to the problem of the hospitalized patient. Both must be understood before effective malpractice prevention techniques can be instituted.

(2) The suit-prone physician—Where the patient's emotional needs have been recognized in moments of disappointment, and appropriate consideration has been given to them, he will not be inclined to sue for malpractice. On the other hand, where he has

129 For an informative analysis of the uncooperative patient and how to cope with him, see Frank, J. D.: "The Uncooperative Patient-A Therapeutic Challenge," Med. Ann. D.C. 17: 667-672 (1948).

met with antipathy or indifference to his emotional needs, the stage is set for a lawsuit. The latter situation necessitates a brief discussion of what we may refer to as the suit-prone physician. The worst mistake a physician can make when he knows his patient is dissatisfied is to go on acting as though nothing untoward has happened. The physician or other professional medical employee who is insensitive to the patient's psychological needs at this point is virtually begging for a lawsuit. Indifference to the patient's disappointment only adds fuel to growing feelings of resentment, and may be indicative of the physician's own psychological deficiencies.

The suit-prone physician cannot admit to himself his own limitations of training and experience, and, when confronted by a dissatisfied patient, often responds to the situation by neglecting the patient or by dismissing his complaints as trivial. In an attempt to bolster his faltering ego, the suit-prone physician refuses to assume any responsibility for what has gone wrong, and tends to react to the situation by losing emotional control and his faculty for exercising sound judgment. Instead of finding out how to make the patient feel less angry, less afraid, or less depressed, he is more preoccupied with his own image. More often than not, he tends to regard the patient as a symbol of his own failure, and punishes him by an indifference which amounts to rejection. In so doing he completely distorts the physician-patient relationship to satisfy his own unconscious needs.

Given a suit-prone patient, even the most competent of physicians may become the target of the patient's desire for revenge. If the physician happens to be one who has many of the psychological traits just described, the chances of a malpractice suit resulting are increased immeasurably. Careful screening of medical personnel, and closer supervision or reassignment of those who seem to provoke incidents with patients, is the only really effective malpractice prevention measure in this situation.

(3) The hospitalized patient—No discussion of patient psychology would be complete without mention of the unique malpractice potential of the hospitalized patient. Studies on the causes of