Drug Topics - December 3, 2007 - (Page 4)
4 DRUG TOPICS DECEMBER 3, 2007 www.drugtopics.com REDUCING YOUR RISK Kenneth R. Baker, R.Ph., J.D. Of Interest to Pharmacists Do people sue people who counsel? can’t sue him—he’s my pharmacist. I like him. I just can’t sue him.” Her pharmacist had made a mistake—a bad mistake. Sally, as we’ll call the patient here, was in the hospital for almost a week and her total medical bills resulting from the mistake amounted to several thousand dollars.* Most of the bills were covered by Sally’s health insurance. When the company discovered the hospitalization was caused by a pharPhysicians who macy error, it informed her that she would be were most likely required, by the terms of her insurance, to sue to be sued were her pharmacist. Almost every healthcare policy has a similar subrogation clause. Sally’s insur“physicians ance company had a good case for recovering the money it paid for her hospitalization and with poor treatment. Sally also could ask for additional interpersonal damages for her deductible as well as her pain and suffering. The problem was that Sally did skills.” not want to sue her pharmacist. I represented the pharmacist’s insurance company, and eventually we reached an agreement to pay the medical and hospital costs, including Sally’s out-of-pocket deductible. Sally refused to take more money—even though it was from the insurance company, and not from the pharmacist. In his book Blink: The Power of Thinking Without Thinking, Malcolm Gladwell relates similar stories of patients who refuse to sue their doctors. One patient’s lawyer tells the patient that the doctor she wanted to sue was not the one who made the mistake. The attorney explained that the other physician was the one she needed to sue. Absolutely not, the patient said. One doctor talked to her. The other did not—and he was the one she wanted to sue. My experience in insurance and the practice of law taught me the same lesson Gladwell found: People don’t sue people they like, and they like people who talk to them. Expanding my experience and Gladwell’s findings to “People don’t sue people who counsel” is a bit of an overstatement. There is some truth in the statement, however. Counseling involves the art of communication. A skilled pharmacist can show empathy and, in only a few seconds, help patients manage their medication therapy. As a result, the patient can feel that someone cares. We all like people who help us and who care how we are feeling. An interesting study was reported in the Journal of Family Practice in 1999—“Malpractice Claims Against Family Physicians: Are the Best Doctors Sued More?” The answer was Yes. In one reviewed study of Florida obstetricians, an I expert panel found that among 42 records from physicians with no malpractice claims, there were eight relevant errors in care. But among the 17 records from frequently sued physicians, there were no errors. The possibility, the authors reported, was that “frequently sued physicians might practice better medicine than never-sued physicians.” What was the difference between the doctors who were sued frequently and those who had more mistakes? The conclusion in this article, and in a score of others, was that physicians who were most likely to be sued were “physicians with poor interpersonal skills.” The patients did not like them. An article by Beth Huntington and Nettie Kuhn, “Communication gaffes: A root cause of malpractice claims,” was published in the Proceedings of Baylor University Medical Center in 2004. There, the authors summarized several studies on medical malpractice. They concluded: Overwhelmingly, the dominant theme in these studies’ findings was a breakdown in the patient-physician relationship, most often manifested as unsatisfactory patientphysician communication. Doctors get sued for a variety of reasons. Claims against healthcare professionals are easier for patients to make when they feel a lack of empathy and caring from their healthcare providers. Complaints against physicians cited in the Baylor article were that the “physicians would not listen” and they did not “talk openly.” Other problems included “perceptions that doctors deserted patients or were otherwise unavailable, devalued patient or family views, delivered information poorly, or failed to understand the patient’s perspective.” There are many good reasons to counsel. Communication is an important part of medical treatment. Counseling is a good way to make sure patients know what medication they are taking and how they should take it. Counseling is good pharmacy. It is also good risk management. Pharmacists can learn from their physician colleagues. People tend to like people who talk to them. People tend not to sue people they like. So, maybe the statement is at least partly correct: People don’t sue people who counsel. *The incident is from my time with Pharmacists Mutual Insurance Co. Sally is not the real name of the patient, and the quote from Sally is from my memory. The lesson from this case, however, is important and was repeated several times over the years. is a pharmacist and a lawyer who consults in areas in which he has worked for more than 30 years. He can be reached at kenbakerconsulting.com. THE AUTHOR
Table of Contents for the Digital Edition of Drug Topics - December 3, 2007
Do People Sue People who Counsel?
New Standard Issued for Pseudoephedrine Tracking
Latest News Roundup
Drug Topics - December 3, 2007