Ellen C. Annandale

The malpractice crisis and the doctor-patientrelationship

Abstract The current medical malpractice crisis in the United Statesprovides an opportunity to explore the medical profession'sresponse to threats to its autonomy of practice. Drawing oncommentary in medical journals, I reveal the way in whichphysicians, and some lawyers, have explicitly targeted doctor-patient interaction as a seat for malpractice reform. A good dealof attention is being given to developing a better rapport withpatients, providing information and involving the patient indecision-making about care. Such reforms should be welcomed.But any benefits need to be weighed against the possibility thatchanges in the doctor-patient relationship may also have acovert purpose; as reform is focused at the interactional level,attention is drawn away from medical practice to the patient asthe source of negligent injury. This can have negativeconsequences for patients who, in responding to thisinteractional gloss, may fail to gain compensation for the realerrors of medical practice.

Introduction

The notion of 'crisis' is endemic to contemporary discussions of the U.Shealth care system. It is, however, only in recent years that it has beenassociated with discussion of the physician role. Turbulent changes in thedelivery of services such as the increasing corporatization of care, thedevelopment of investor-owned chains, and the diversification of care outof hospitals into free-standing alternatives are no longer prompting onlysociological and other academic interest in the physician role; physiciansthemselves are increasingly recognizing threats to their own 'professionaldominance'.

The position of physicians in the U.S health system has, of course, beenthe subject of recent and somewhat acrimonious debate in the socialsciences (Freidson, 1985; McKinlay and Stoeckle, 1988; Starr, 1982).

Sociology of Health & Illness Vol. 11 No. 1 1989 ISSN 0141-9889

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McKinlay and Stoeckle (1988) and others have argued that physicians areundergoing a process of proletarianization associated with the expansion ofcapital into health care and the increased bureaucratization of services.Freidson (1985:32), in contrast, argues that 'there is no reason to behevethat medicine's basic position of dominance will change.' Nevertheless, hedoes predict that medicine will have a greater struggle to maintain its voiceat the level of policy making and its privilege of self-regulation.

While it would be a mistake to underestimate the differences inherent inthese various predictions, for the purpose of this discussion the importantthing to note is that there is, nonetheless, agreement that physicians'autonomy and control is being eroded. Further, there is some consensusthat decreases in physician autonomy can be potentially beneficial forpatient care.

This paper explores one particular manifestation of the health 'crisis';the dramatic rise in malpractice litigation. I will argue that malpractice canbe seen as an indicator of threats to professional hegemony and self-control. It is also leading to reforms in the doctor-patient relationshipwhere calls are being made for the patient to be given more information,and an active role in decision-making about treatment. In this way,malpractice can be seen to hasten some of the very changes thatsociologists have argued are essential to improvements in patient care.However, 1 also aim to show that there is a potential for using reforms inthe doctor-patient relationship as explicit litigation reduction strategies.Thus, any benefit accrued at the level of increased patient satisfaction mustbe considered alongside its possible use to mask errors of clinical practice.

The data that I will draw upon to make this case is commentary aboutmalpractice in medical and dental journals. This is dialogue from withinthe professions, physicians and dentists talking to each other about ways todeflect malpractice suits brought by their patients. By revealing the way inwhich physicians attempt to restore their previously unquestioned mandateto judge the success (or otherwise) of their treatment of patients, thiscommentary provides an entre into the way in which the medical anddental professions repair themselves under attack. Further, it paints a vividpicture of professional models of patient behaviour, providing furtherinsight into the dynamics of doctorrpatient interaction. In addition tomedical commentary I will draw upon lawyers' advice to physicianspublished in medical journals, legal debates about malpractice law and thesmall body of sociological discussion on malpractice'.

In this paper I focus upon the U.S where medical malpractice has incitedmuch interest since the dramatic rise in litigation in the 1970s. Britain has asignificantly lower rate of litigation (Rosenthal, 1987). However, we arebeginning to see increased use of the courts to settle grievance and there isincipient state and consumer interest in regulation of medical practicewhich is leading the General Medical Council (which has the mainresponsibility for hearing complaints against physicians in Britain) to re-

The malpractice crisis 3

examine its disciplinary responsibilities. This, coupled with the increasingturn to private health and health insurance, suggests that Britain may havemuch to leam from the U.S experience.

Medicid Malpractice

In bringing a case of malpractice a plaintiff must prove that (1) there wasnegligence, (2) that negligence caused or contributed to damage or injury,and (3) that there was damage or injury (Lenke and Nemes, 1985;Blumstein, 1982), Negligence or malpractice involves the physician'sfailure to act in accordance with prevalent professional standards (Blumstein,1982). According to the American Medical Association's (AMA) Committeeof Medicolegal Problems (1963:695), the physician must 'possess the skilland exercise that are currently possessed and exercised by other reputablephysicians in the same or similar locality'^, must 'continue professionalcare of a patient as long as it is needed', and 'undertake any diagnostic orremedial procedure on the patient only with expressed or implied consent.'Malpractice involves a breach of these standards.

Medical malpractice reached visibly critical proportions in the U.S. inthe mid-1970s. Prompted by disputes over huge increases in physicians'malpractice insurance premiums, and the threatened withdrawal of carriersfrom the malpractice business, 1975 witnessed a series of 'doctors' strikes'where, in some States, physicians withheld services and hospitals wereforced to close their doors and/or reduce the services that they provided(Somers, 1977; Schwartz, 1982). State legislators acted swiftly and therewas a 'great outpouring of legislation [which] was mainly aimed atstrengthening the defense of physicians and hospitals against claims,reducing potential legal liability, and. . .assuring the availability ofinsurance coverage to health care providers' (Somers, 1977:194). Thisincluded the introduction of pre-trial screening, limitations on the size oftotal awards by many states (usually to $5(X),0(X)) and reforms relating toexpert testimony and the burden of proof. These tort law reforms providedsome respite, but the number of malpractice suits filed and the cost ofinsurance has continued to rise throughout the 198O's (Robinson, 1986),accompanied by an acceleration of debate within medicine and alliedprofessions (Rosenthal, 1987) .̂

Of interest is the way in which physicians have responded to theincreased premiums that they are having to pay and the increased litigationthat they are experiencing. The medical profession has been quick to pointto the legal system as a prime cause of the rise in litigation, in particular toan increased emphasis on medico-legal training for attorneys (JAMA,1963), the contingent-fee system and the collateral source rule"* (Epps,1986). In popular debate, references have been made to the greed oflawyers who, it is said, are seeking out patients and touting for business. At

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the same time, as Bradford (1986: 32) points out, 'expert testimony is bigbusiness these days.' Physicians are commanding large fees workingindependently (in the case of those with legal degrees) and for organizationswhich provide expert testimony for lawyers.

In order to understand physicians' particular response to the 'malpracticecrisis' we need to appreciate the cultural and economic effects that it ishaving upon the profession. Loss of social status through subjection to amalpractice suit is a severe blow to professional pride. Two comments fromphysicians in response to the threat of malpractice exemplify this:

My father was a doctor. His patients saw him as being next to God.Never again will people revere doctors to that extent, (quoted inRitchey, 1979:165)Doctors never felt like the underclass of society. We were always theupperclass of society. And now there's this crdzy schizophrenia inmedicine today where, on the one hand you're an elite group. . .you'veachieved tremendous amounts of skill and ability. On the other hand,you want to walk around with a bag over your head, when you open upthe paper and see one of your friend's name in it for a big lawsuit, youfeel terrible. (WGBH, 1986:13).

It is a rare physician, it would seem, who has not been associated in someway with a malpractice suit (Harrison et al., 1985; Danyo, 1980). TheAMA's Socio-legal Monitoring Service reports that the average incidence ofclaims per 100 physicians increased from 3.3 before 1978, to 8 per 100 from1978 to 1983 (Havighurst, 1984). Family practice met this average, whilemedical specialties experienced 4.5, and surgical specialties 11.8, claimsper annum (Geyman, 1985).

At the economic level the medical profession claims that malpracticeinsurance is biting hard at physician incomes. It is, in fact, difficult toestimate the cost of malpractice insurance to physicians as precise data areunavailable (Somers, 1977). Between 1975 and 1983, premiums increasedin cost by 80 per cent (Geyman, 1985). Many physicians paid premiums of$20,000 a year in 1982 (Campion, 1984). However, the AMA estimatesthat the average physician spends only about 4 per cent of his or her pre-taxincome on insurance (Posner, 1986). In real terms, then, the profession'soutcry at the cost of insurance seems misplaced.

The purpose of this paper is to discuss the implications of the malpracticecrisis for patient care at the micro level of the doctor-patient relationship.But it is also worth documenting some broader effects at the level of theprovision of care to consumers. First of all there is cost pass-on in the formof higher costs for services and for third party insurance (Hershey, 1982;Tancredi and Barondess, 1978). Second, the economic cost to physicianscan lead to a reduction in services (Epps, 1986). This has been notable inthe so-called high risk specialties like obstetrics where physicians are beingforced out of, or are choosing not to go into, the field (George and

The malpractice crisis 5

Quattrone, 1984). Riffer (1986) cites an American College of Obstetricsand Gynecologists' (ACOG) survey which found that 12 per cent ofphysicians had dropped obstetrics because of the threat of malpractice. Inaddition, many family practitioners are cutting their obstetric services.

Much has been made in recent years of the 'oversupply' of physicians(Ginsberg and Ostow, 1984). This, together with competition for patientsand the regionalization of services in some specialties (such as obstetrics),suggests the decline in physician numbers may not be a serious problem.The loss of care facilities and practising physicians, however, is dispropor-tionately affecting particular groups in the population, especially theindigent and those in rural areas. A greater burden is being placed upontertiary care centres and the voluntary sector at a time when it isincreasingly being squeezed by the corporatisation of care (Whiteis andSalmon, 1987).

One much discussed offshoot of the malpractice crisis has been thepractice of 'defensive medicine' which commentators claim is leading notonly to unnecessary increased costs to the consumer, but also to lesspatient choice. It is, of course, difficult to determine to what extent thedecisions that physicians make in treating patients are influenced by thethreat of malpractice. Hershey (1982:158) draws our attention to theproblems associated with 'the difficulty in distinguishing what appears to begood medical practice from defensive practice of medicine, and the need toassess subsconscious as well as conscious influences created by conscious-ness about liability.' His study, which was based on nonstructuredinterviews with 17 physicians in private practice, does, however, suggestthat the practice of defensive medicine varies by the 'personal characteris-tics of physicians and those of patients that they see' (Hershey, 1982: 158).The majority of the physicians in the sample said that their assessment of apatient's likelihood to sue was taken into account in treatment decisions.

Physician Response

Medicine's attempts to repair the economic and social damage to theprofession incurred by the malpractice crisis have taken three forms. Theseare (1) lobbying for legislation (2) lobbying to affect public opinion and (3)primary and secondary (tertiary) prevention by 'managing' doctor-patientinteraction.

Medicine has historically had an effective governmental lobby, with thestate supporting its particular interes||j(Renaud, 1975). Though the state'sability to continue to bolster sudi interests can be questioned, given theperceived necessity to intervene and contain costs, physician's strongresidual power still gives them the abflity to resist and push for legalchange. Thus, the AMA has expended much effort in lobbying for new

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liability laws and for reducing the size of awards made to plaintiffs (Epps,1986).

A second lobbying strategy involves attempts to alter public perceptionsof medicine and physicians. In brief, it centres around dispelling publicbelief in the omnipotence of medicine. Previously the belief in omnipotencewas not necessarily fostered by the profession, but it was nonetheless notactively disavowed, for it contributed to status, respect and patientcompliance. At present, though, omnipotence has become a trait thatphysicians are quick to reject. Thus Kraushar (1987a:83) declares that:

Patients do not come to the physician with the prior intention of suing;they come to be cured. Unfortunately, many patients not only want to becured, they expect to be cured, and anything less than a complete curewill be unsatisfactory. Disabusing patients of the misconception thateveryone can be completely cured is an essential responsibility of thephysician and constitutes a compelling indication for informed consent.

The AMA Special Task Force on LiabiHty Action plan is launching aneducational campaign to 'improve public understanding' and to educatepatients about malpractice (Montgomery, 1987). The campaign involvesthe publication of pamphlets for patients of the kind already available inmany doctor's offices. One such pamphlet distributed by the Rhode IslandMedical Society tells patients that 'Medicine is not an exact science. Everypatient is different and will react somewhat differently to medication andtreatment. Despite a doctor's best efforts, some patients do not get theresults from a particular treatment or procedure that they and their doctorsexpect.'

Commentary from outside as well as inside the medical profession pointsto the declining status of physicians in the eyes of patients (Montgomery,1987), and the growing expectations of medicine to effect perfect cures(Kraushar, 1987a), as associated with the increased propensity of patientsto file a suit. These observations are familiar to those social scientists whohave argued that medicine is becoming de-professionalised by theincreasingly consumerist stance of patients (Haug and Lavin, 1983).Increased use of high-technology and the specialization and fragmentationof care is seen to impoverish the doctor-patient relationship, leading topatient dissatisfaction and hence to an increase in litigation.

This leads us to the third way in which the medical profession isattempting to repair damage wrought by malpractice. This is at theinteractional level during consultations with patients, where attention isbeing given to doctor-patient interaction as the source of litigation.

The controversial doctrine of informed consent is crucial for understandingwhy physicians locate the source of malpractice suits in the doctor-patientrelationship. In claiming negligence the plaintiff must prove a causalconnection between failure to disclose information and the damages thathe or she sustained (Koopersmith, 1984). Having its 'roots in the

The malpractice crisis 7

recognition of the patient's right to self-determination', informed consentmeans that 'a doctor is required to give his patient sufficient informationabout proposed treatment so as to provide him with the opportunity ofmaking an 'informed' or 'rational' choice as to whether to undergo thetreatment' (Robertson, 1981:102).

In reality, the ability of informed consent to enhance patient self-determination can be questioned. Even putting the substantial social andpolitical barriers to information exchange aside, when discussing risk thephysician is legally permitted to exerdse discretion in disclosing informationrelevant to patient care (Katz, 1977). As Teff (1985) remarks, the rhetoricof informed consent provides much scope for medical paternalism. Inpractice informed consent can be little more than a formality. But,nonetheless, its centraUty to malpractice law functions to establish thedoctor-patient relationship as the starting point for malpractice prevention.Harrison et al., (1985:44), for example, remark that 'this relationship is theframework from which all duties incumbent on the doctor arise andwithout this relationship there can be no negligence or breach of duties.'This helps to explain why physicians and lawyers have come to focus notupon negligence itself as precipitating a suit, but rather on failure ofcommunication with patients.

Before going on to discuss more precisely why physicians are giving somuch attention to interaction in managing malpractice, and the type ofmanagement that is taking place," I would like to consider some of thebeneficial effects that concem about malpractice may have for patient care.

Positive effects of the concem about malpractice

Social scientists have demonstrated that there is an interactional componentinvolved in patient dissatisfaction with the care that they receive fromphysicians. Research has pointed to the patient's felt inability to askquestions (Shapiro et al., 1983), to get adequate information abouttreatment (Haug and Lavin, 1983) and to not being sufficiently involved indecision-making about their care. Patients' negative reaction to being keptwaiting for appointments, to being mshed in and out of surgeries, and tothe lack of continuity of care which derives from being passed to and frobetween specialists has also been highlighted (Cartwright, 1%7).

The patient's knowledge gap, which is, of course, in part a function ofthe interactional style of consultations which are not conducive to thetransfer of information between provider and patient, inevitably meansthat he or she is unable to judge the appropriateness of clinical practices(diagnostic and treatment decisions). Hence, the patient locates his or herdissatisfaction in the interactional components of practice. This has beendemonstrated in social sdence research which has been shown that patientsevaluate physidans by their affective behaviour rather than technical

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ability (Freeman et al., 1971). This observation has become a guidingprecept in malpractice prevention with physicians making such remarks as'the sine qua non of prevention is good doctor-patient relationships'(Henderson, 1986:243).

Improving rapport, providing more information and sharing decision-making with patients has become common parlance in the current climateof litigation. Stabenow (1985:492), for example, exclaims 'Avoidingpatient complaints? Communicate! Communicate!' Montgomery (1987:448)discusses bridging the information gap between physicians and patients andwarns that 'patient/physician interaction which only results in a cursorygrunt in answer to the patient's questions, or perhaps a nod or, a few hmmsand the issuance of a prescription or two, should stop short and realize itsfolly.' Sommers (1985:300) suggests that 'Physicians might well ask eachpatient to write out the questions for which they are seeking answers. Thisexercise would allow for a review of problems in sufficient detail. . . .'Emphasis is also being placed on reducing the fragmentation of care, toincreased coordination between specialists (Griffiths, 1985; Rubin, 1978)and the need for adequate patient follow-up (Sommers, 1985).

At a broader level, physicians are being exhorted to recognise the'human aspects' of patient care (Rubin, 1978; Wright, 1984). Listing a setof 'Guidelines for avoiding malpractice', Ginsberg (1983:120) feels theneed to tell physicians to 'Be courteous. Say "thank you" often.' Profitmaking organisations have developed to sell advice. For example, one suchorganisation aimed to sell 'sensible, practical, usable advice to achieveresults by better rapport with patients and colleagues' to physicians. Thisincluded 'letter samples designed to graciously, tactfully and efficientlyreach out and leave a good impression.' (See classified section of MichiganMedicine, 1983:270).

Clearly any such reforms may well be to the benefit of patients who placemuch value on the quality of their interaction with physicians. But, perhapsmore significantly, reforms in the direction of increased exchange ofinformation open up the possibility of improved clinical practice andperhaps also patient outcomes as physicians are able to engage in shareddecision-making with patients (DiMatteo and DiNicola, 1982).

The doctor-patient relationship and litigation reduction

The level of 'genuine' negligent injury is almost wholly undocumented(Zuckerman et al., 1986). It is only recently that data on clinical errorshave become at all accessible and there are currently very few empiricalstudies. Perhaps the most telling and vivid accounts have come from socialscience (Bosk, 1979; MiUman, 1977) and these will be discussed below.There is, however, some published research from within the medicalprofession (see Brook et al (1975) for a review of this research). For

The malpractice crisis 9

example, the California Medical Association and the California HospitalAssociation (CMA/CHA) discovered that 4.65 per cent of all in-patientstays led to what they called a 'potentially compensable event' (PCE)(Mills, 1978). When expanded to the statewide hospital population, 17 percent of all PCEs revealed evidence of liability (23,000 ± 3,«)0 PCEs).Even though it is not possible to competently assess the 'true' extent ofmedical negligence, medical and sociological research, as well as moreanecdotal accounts, suggest that negligence does take place. It nowbehoves us to consider more precisely how doctor-patient interaction canbecome a target for reducing litigation.

In his article entitled 'Liability Prophylaxis' Henderson (1986:243) warnsfellow physicians that 'people don't sue their friends.' He quotes a surgeonwho explains that 'If all goes well I don't worry, but if I get a complicationor bad result I make that patient and their family a member of my family. Ilove them and support them.' (Henderson, 1986:244). This quotationmakes the point that while reforms in doctor-patient interaction are nodoubt beneficial to the patient, they may also be made, among otherreasons, as litigation reduction stategies.

In theory, it is possible to consider the filing of a suit by a patient as theoutcome of two things (1) whether there was negligent injury or not and,(2) whether the patient (or patient advocate) is aware of the negligenceand, if so, whether he or she decides (and has the resources) to file a suit.Comments such as, 'complaints and claims cannot provide a true accountof the effectiveness of medical practice; it is more a measure of the degreeof care as assessed by the patient' (Murray, 1984:237), imply thatnegligence is largely irrelevant to the malpractice case. However, there issome suggestion that the doctor-patient relationship is being used to alterpatient perceptions even when the physician feels that a suit is well-founded. Consider, for instance, this comment:

Information from the risk management division of St. Paul Fire and MarineInsurance Company [the leading underwriter of malpractice insurancefor many years] shows that about 1 in 100 hospitalized patients couldlegally bring a negligence action against their medical-care provider forfailing to act, or acting improperly. Yet, less than 10 per cent of them do.Why? Often the answer lies with the type of relationship the patient haswith his health care provider. The more positive the relationship, the lessthe malpractice risk (Sommers, 1985:299).

Also consider the following comments made by Avery (1986:646) aboutfailure to diagnose a nonfunctioning kidney. He remarks that 'retrospectiveanalysis of this case suggests several areas where one would stronglysuspect physician negligence.' He goes on to state that 'since no claim waspressed in this case, we can conclude that the physidan/patient relationshipwas strong enough to negate any feelings of anger on the part of thispatient. . . .' He concludes that:

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The prevention of malpractice litigation, even in the face of possiblemistakes of management, depends primarily on a good physician/patientrelationship and good medical record (Avery, 1986:646).

One explanation put forward by the medical profession to account forthe (usually unspecified and argued to be very small) core of genuinemalpractice that does exist is that it is due to a very small group ofincompetents. Moser (1986), for example, talks of one per cent ofincompetents. Further, as Fine and Sunshine (1986) and Bovjberg (1986)remark, suits that are brought are often seen to fall at random whencommunication breaks down. Repudiating an association between iatro-genic and negligent injury and litigation can lead to 'explaining away' acore of genuine malpractice. Admittedly the patient's perception of anevent must influence whether a suit is filed and, in this way, the incidentitself is insufficient to explain a claim. But, taken in conjunction with theargument that most suits are 'frivolous', the role of patients' perceptionscan be stretched too far leading to the conclusion that it is not the negligentact, but the patient's perception of it which causes a suit. It then takes littleimagination to target doctor-patient interaction as the seat of medicalreform. This deflects attention away from physicians themselves and theirpractice which is strongly resistant to regulation and change (Freidson,1970). Reform in the doctor-patient relationship, then, could be little morethan a cosmetic operation, its function summarised in the following remarksmade by Kraushar (1987b:3); 'the best prophylaxis for medical malpracticelitigation is nurturing and maintaining the doctor-patient relationship.'

Primary and secondary malpractice prevention

Most suggestions for modifying the doctor-patient relationship to avoid asuit rely principally upon 'primary prevention'. This involves 'preventingsuits', managing relationships so that if something happens, the physician'sgood rapport with the patient can be called upon to 'put the problem right'.It is argued that this management process should begin upon the doctor'sfirst contact with the patient. • Sommers (1985:300) urges that 'anappropriate communication pattem must be initially established with newpatients by the office staff and physicians. Dialogue must set in motion aclear, meaningful relationship between patient and physician.' Manage-ment even extends to the pre-patient stage as physicians are advised to vetnew patients. Once a patient is accepted into the practice, physidans arewarned to ensure the effective communication and sharing of information.

One further primary management strategy that follows on frominformation exchange is dissolution of responsibility. Beginning from thepremise that problems can be caused by unrealistic expectations ofmedicine, Gutheil et al., (1984) encourage physicians to share uncertainty

The malpractice crisis 11

with patients. It is suggested that the physidan should treat medidne as aprocess of mutual discovery with patients (Applegate, 1986). Gutheil etal.'s advocacy is based on work in the mental health field where the modelof a 'therapeutic alliance' (Gutheil and Havens, 1979) is perhaps mostapplicable. They stress its clinical benefits for patients but also point outthat 'legal benefits flow from the clinical ones. . .[the] use of informedconsent to enlist the patient in an active alliance with the physiciandiscourages overly simplistic blaming and reduces the alienation from thephysician which leads the patient to seek legal remedies for dissatisfaction'(Gutheil era/., 1984:51).

In theory, such an alliance between physician and patient would offer asolution to the problems caused by the typical active physician-passivepatient situation and allow the patient a degree of mastery over his or hertreatment. However, it is extremely difficult to realize in practice. Thereare often organisational constraints to the 'therapeutic alliance' even if it islargely desired by patient and provider (Annandale, 1987). Further,models of shared decision-making rely implicitly on the assumption that ifthe physician changes his or her behaviour to involve patients in a moreequal alliance, then the patient will somehow automatically follow suit.While it seems clear that many patients do desire an increased role intreatment decisions, their behavior when in the position to adopt this rolemay involve retreat rather than involvement (Haug and Lavin, 1983;Silverman, 1987). The point to be made, then, is that a therapeutic alliancemay be difficult to realize in practice. In addition, a distinction can be madebetween shared decision-making and shared responsibility. The lattermakes explicit reference to ensuring that the patient takes responsibilityfor his or her own care (and hence the outcomes of treatment), absolvingthe physician of responsibility. This could be problematic for the patient(or patient's advocate) if taking responsibility leads to self-blame for anoutcome that was, in fact, attributable to physidan negligence.

As we saw earlier, establishing a 'good' doctor-patient relationshipfunctions to preclude a suit if negligence occurs. Secondary preventioninvolves action taken to reduce the effects of a clinical error after it hasoccurred or to dissuade a suit brought by a patient (in the absence oferror). One such secondary prevention technique involves 'forgiving' thepatient's fee. Kraushar (1987b) advises that physicians need to be carefulbecause this could be seen as a sign of guilt:

. . . . [W]hen faced with a poor result and a patient who appears litigious,forgiving the portion of the fee not covered by insurance may prove asound investment in the physician's peace of mind. He also recommendsthat the physician take special note by flagging the medical records ofpatients whose results are less than satisfactory and to 'being as solicitousas possible with these patients' (Kraushar, 1987b:4).

Most discussions of malpractice exhort the physician to be honest if a

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complication or bad result arises when treating a patient. For instance,altering or completing medical records retrospectively is discouraged(Souviron, 1983). Nonetheless, attention is also being given to 'managingpatients' through interaction after the event - conceptualised here as'secondary prevention.' Recall, for instance, the quotation from Henderson(1986:244) where the surgeon explained that if he experienced anuntoward result he made the patient one of his family, and loved andsupported him. Murray (1984:237) talks of tertiary prevention which 'aimsto diminish the effects of the mishap and to re-establish proper relationshipsat the earliest, and hopefully, cheapest means.' Souviron (1983:40) urgesdentists that if a mistake occurs it should be pointed out to the patientimmediately 'before he or she makes the discovery. It can then be classifiedas a complication, rather than an error.'

'Suit-Prone' Patients

Much of the attention given to the doctor-patient relationship and itsassociation with malpractice has been directed towards changing physicianbehaviour. It is assumed that patients will take up physician cues todevelop a consultative style which centres around shared decision-makingand responsibility. But, as we have seen, this does not mean that patientbehaviour is ignored in the attempt to reduce the impact of malpracticeupon the physician. Mindful of the significance of patients' perceptions ofmedical injury (negligent or otherwise) physicians' and lawyers' attentionhas focused upon recognising the 'suit-prone' patient during consultations.This should not be a surprise since the stereotyping of patients has beenshown to be common in medical practice (Wallen et al., 1979) and,furthermore, has been associated with poor patient outcomes (Fisher,1979). Rarely, however, have these stereotypes been made so explicit as inthe current climate of litigation. Characteristics of suit-prone patients canbe divided into psychological and socio-demographic dimensions.

Psychological characteristics of 'suit-prone' patientsDiscussing the emotions which spark a malpractice action, Souviron(1983:39) claims that 'anger, fear, greed, and rejection are some of thestrongest psychologically motivating forces.' But rather than point tohuman emotions alone, other commentators have addressed the 'personalitytypes' most likely to sue. Bernzweig (1985:63) a lawyer, writing in anursing joumal, for instance, claims that 'some patients, because of theirpersonalities, are more likely to take you to court than others.' Somers andSomers (1961) cite a 1958 study by the Califomia Medical Associationwhich, they explain, described the suit-prone patient as a 'mild neurotic,dependent, lacking in understanding of his own emotions.' (Somers andSomers, 1961:473). It is difficult to accurately summarise which personality

The malpractice crisis 13

characteristics physicians see as suit-prone. A whole gamut appear in theliterature, including patients who are 'dependent', 'uncooperative', 'hostile',have 'unrealistic expectations', are 'self-styled experts', 'emotionallydisturbed', 'flatterers', are 'subservient', 'demanding', 'cranks', 'paranoid','psycho-neurotic', 'untrusting' and 'dishonest'.

These typifications are problematic for physicians because they violatethe very reforms that they are attempting to make in the doctor-patientrelationship. For example, Ginsberg (1983) and Bernzweig (1985),attorneys writing for dentists and nurses respectively, both warn of the'dependent patient'. Bemzweig (1985:63) explains that this patient'exhibits a childlike dependence. He expects [nurses] to tend to his everyneed, and he may refuse to do anything for himself.' Continuing thistheme, Ginsberg (1983:116) comments that the dependent patient'. . .soundslike a lovely, cooperative patient, but she. . .is sending you a signal.Beneath her pleasant remarks she's telling you "Don't involve me! It'syour responsibility, not mine. So, if anything goes wrong, that will be yourresponsibility, and your fault too"' The 'dependent patient', then, fails tocomply with the felt need for patient self-responsibility.

Another example is the 'demanding patient' who is said to want'constant attention. . .He's out to punish anyone who fails to cater to hisunreasonable whims. His best revenge, of course, is to drag you to court'(Ginsberg, 1983:116). Hershey (1982:144) found that physicians cited'pushy, demanding, belligerent and antagonistic' patients as personalitytypes most likely to sue. The same author quotes a physician whoremarked that such patients say things Uke 'I've been coming here a lot andspending a lot of money, and I'm not getting any better' or 'Why haven'tyou referred me to another specialist' (Hershey, 1982:144). This type ofpatient is seen to violate the norm of being 'realistic' about what medidnecan achieve; he or she quite simply is seen to expect too much.

Resembling the demanding patient, is the patient who is seen as'knowing too much'. This is the 'self-styled expert' or 'supervising patient'.Ascherman (1985:29), a dentist and attomey, advises being wary of 'thepatient who seems to make mental, verbal, or written notes of highlytechnical information. . . .The pitfalls in dealing with the consumerist, asthese patients are often called, is that they may set traps for you,attempting to corner you into suggesting that a certain sequence ofsymptoms makes you suspect a certain diagnosis.' Clearly this patient isseen to take too much control.

Socio-demographic characteristics of 'suit-prone' patientsReferences to perceptions of the socio-demographic characteristics of suit-prone patients are not as evident as the psychological. Ritchey (1979,1980)found that physicians tended to see the semi-educated and blue-collar/working class patients as most Ukely to sue. And, among Hershey's (1982)physicians who perceived an assodation between social class and mal-

14 Ellen C. Annandale

practice, a few were wary of working class and minority groups. It isdifficult to know if the lack of data in the literature on sodo-demographiccharacteristics and physidan perceptions of malpractice-proneness reflectsa lack of association in the minds of physicians or a lack of researchinterest. There is certainly a lack of attention to socio-demographiccharacteristics amongst medical commentators, but this could reflect thesalience of psychogenic explanations for patient behaviour in general.Given the large body of social science research pointing to the salience ofpatient age, gender and social class in physician behaviour (Roth, 1981;Armitage et al., 1979), it would be premature to conclude that socio-demographic characteristics are irrelevant to how physicians respond whenjudging the suit-proneness of their patients.

There is something inconsistent about these perceptions of suit-pronepatients and the way in which their physicians and dentists are beingexhorted to change their interactional style (to reduce malpractice). Theyare advised that patients who defer to physicians should be avoided andthat physicians who expect deference are only asking for trouble. Yet, theconsumerist patient who, it appears, wants to take responsibility and whoclearly does not defer is also seen as suit-prone. Indeed, Ritchey's(1979:163) physicians saw 'the suit-prone personality as someone who doesnot pay deference to a physician's "charisma", who does not recognise thephysician's status and social standing.' Perhaps there is some ideal-type ofpatient (who will not sue) embodied in this simultaneous rejection andacceptance of imputed patient characteristics; a patient who wiU balance alevel of deference with a little (but not too much) knowledge, who will takeresponsibility for decisions, but only those deemed appropriate by thephysician? I suggest that what this seeming ambivalence on the part ofphysicians actually reveals is a reluctance to accept the very reductions inauthority, standing and control that are being called for to reducemalpractice suits.

What implications might these characterizations of suit-prone patientshave for patient care? Millman's (1977) observations of hospital mortaUtyreviews reveal that one way in which physicians demonstrate why their ownperformance led to error is by shifting blame away from themselves toeither the unusual circumstances of a case or to the patient. If blame isshifted to the patient it can involve pointing to certain social andpsychological characteristics which misguided the physician. She foundthat such patients were often discredited as misleading the physician bybeing 'alcoholic,' 'obnoxious,' 'uncooperative,' and 'crazy.' (MiUman,1977:107). The impHcations of such patient stereotypes are not difficult todiscem; they carry the clear potential for discrimination and for practicethat is motivated not by what the physician perceives to be the patient'sbest interest, but by avoiding a malpractice suit. Thus, 78.9 per cent ofprimary care physicians, responding to a mailed questionnaire, said thatthey felt that they must 'be more cautious with certain patients who they

The malpractice crisis 15

think are "suitprone"' (Ritchey, 1979:162). Ritchey (1980) also found thatsuit-prone patients are likely to be treated in a defensive way by primarycare providers and to be referred prematurely to specialists^.

Conclusion

I have outlined the ways in which the medical profession has responded tothe malpractice crisis. My argument is that from the point of view ofpatient care, the malpractice crisis may have both positive and negativerepercussions. Most significantly, there is evidence to suggest that thethreat of malpractice may lead to reforms in the way in which physiciansinteract with their patients*. They are being urged to develop a goodrapport, to share decision-making and to persuade patients to take moreresponsibility. Reference to the large body of social science research ondoctor-patient interaction and patient care suggests that such reformsshould be welcomed.

Back in 1970, Freidson argued that medicine needed to becomeaccountable to the individual patient. Throughout the 1970s and on intothe 1980s, social scientists have continued to call for a reduction in thepower and autonomy of the practitioner and for increased consumer voice(DiMatteo and DiNicola, 1982; Tuckett et al., 1985). The current andfuture ability of the medical profession to uphold its position of dominanceremains a topic of quite fierce debate.

Discussing the implications of malpractice for professional autonomy inBritain and Sweden, Rosenthal (1987:239) concludes that 'overt professionalcontrol of disciplinary mechanisms is not required for professional intereststo be protected. A profession can exerdse power and authority withoutovert autonomy.' Though Rosenthal's (1987) research addresses institutionalregulation and public policy, my conclusions compliment her own;manipulating interaction with patients is a rather covert way of protectingprofessional interests. In these concluding remarks I would like to broadenthe discussion and consider further why a major response to themalpractice crisis has been located at the level of interaction with patientsand its links to professional dominance and control over patient care.

MiUman (1977:91) explains that 'defenses against acknowledging mistakesreside in the very heart of medical work, philosophy and organization.'There is, she claims, no standard and universal definition of what is rightand wrong. In his study of physician training and the management offailure. Bosk (1979) shows that the physician's 'failure to performcompetently' has two dimensions; 'errors in technique' (faUure to correctlyapply the body of knowledge that is available) and 'moral failures' (failureto follow the professional code of conduct). He argues that 'social controlof the profession subordinates technical performance to moral performance'

16 Ellen C. Annandale

and negligence itself 'is defined in terms of clinical norms - moral values -and not technical standards' (Bosk, 1979: 168, 181).

The implication of this research is that it is difficult for the medicalprofession to 'punish' technical errors for it is not always clear whether themistake lay in the individual physician or the state of medical knowledge(Bosk, 1979). MiUman (1977:117) demonstrates that individual physiciansare discouraged from admitting mistakes for to do so would mean upsettingmedicine's 'faith in science, objectivity and rationality.' Further, admittingerrors opens the individual up to self-doubt and guilt, quaUties which arefelt to be incompatible with continued practice.

This body of research provides some clues as to why interaction withpatients has become a principle location for solving the malpractice crisisfor physicians. It suggests not only clear constraints against reveaUngerrors, but also against recognizing that they have occurred at all as 'theindividual [physician] claims his conduct is beyond question - that he dideverything any other member of the profession might have done in similarcircumstances - and that failure is accidental, incidental, and random'(Bosk, 1979:170). There is here a separation of the individual physicianfrom medicine as a body of knowledge and technique. This division iscarried over into the management of malpractice: when errors occur theyare perceived to be due to the state of knowledge and technique; thephysician cannot control this, he or she can only control his or her ownconduct in interaction with patients.

Responses to malpractice, then, are essentiaUy reductivist; solutions aresought in interaction not at the broader level of the organization ofpractice. Medical injury is often associated with the use of high technologyand vogue therapies (Furrow, 1981). The development of medicaltechnology is largely unregulated (MiUman, 1977), its appUcation may befostered more by the search for profits in a competitive market (Waitzkin,1979; Hughes, 1985) than for any obvious therapeutic benefit. There hasbeen sufficient suggestion in recent years of expanded Uability wherebyhospitals are held responsible for the negUgence of physicians who practicein them (even when physicians are independent contractors) (Furrow,1981). Unless physicians begin to 'focus upstream' and look at theorganisation and basis of medical knowledge in relation to individualpractice, there is a clear potential for increased corporate control over theprofession in the form of alterations in the work setting, increasedevaluation of procedures and more practical use of information gatheredby risk management programmes to change physician behaviour. In thiscUmate of increased corporatization of hospital and primary care,malpractice may be one further stimulus for corporate control over themedical profession.

However, the profession's inabUity to withstand corporate threats to itsautonomy tells us Uttle about its abiUty to retain control in interaction with

The malpractice crisis 17

patients. Attention is being given to interaction and affect at a time whenpatients are increasingly vocal in their dissatisfaction with the technologicaland de-humanized practice of medicine. Patients' expectations for a morecoUegial and jiffective medical care provide physicians with a solid basefrom which to launch an attack upon malpractice, one that is Ukely to meetwith success precisely because it coincides with patient aspirations.Medicine's ability to foster its own speciaUst interests by drawing upon thegeneral trend towards humanism in patient care has not been missed byother commentators. De Vries (1984) shows how parent-infant bondingtheory was embraced by physicians because it provided a scientificrationale for responding to consumer complaints about contemporaryobstetric practice. Furthermore, bonding provided justification to enhancerather than diminish professional control over perinatal and neonatal careas physicians and allied workers were needed to ensure that the 'correct'type of attachment developed.

Herein lies the irony, for this trend towards humanism may be broughtby patients at the cost of increased medical control over their own care.Humanism is accompanied by an extension of the 'clinical gaze' (Foucault,1973) as medicine moves from a specific etiologic to a multi-causal model(Zola, 1981) and Ulness is seen no longer to lie only inside the body but alsoin the social and psychological context of the patient's life-world(Armstrong, 1984). By this process, medicine's power and control ismagnified as patients become more and more visible, accessible and'known' (Arney, 1982). As control is ostensibly diffused and the patient isplaced in the role of a rational, thinking 'partner' in, to use Applegate's(1986) term, a process of mutual discovery with the physician, that patientwith his or her social and psychological baggage becomes ultimatelyresponsible for what transpires as treatment. In the context of malpracticethis process, along with broader reforms in the way physicians relate totheir patients, can keep errors in practice off the agenda altogether. Thismay be the most powerful form of control of all (Lukes, 1974).

In this situation - of what Lukes (1974) calls three dimensional power -the physician's power inheres in being able to influence patient expectationsso that they may faU to act in their own interests (even at the same time asexpressing satisfaction). The patient may thus be dissuaded from gainingcompensation for errors of medical practice. This possibility is furthersuggested by research demonstrating an association not only betweenpositive evaluations of physicians' communicative style or affect andgeneral satisfaction, but also with technical competence. Early research byBen-Sira (1976) noted such an association and a more recent study byBuUer and BuUer (1988) found that patient satisfaction with physicians'communication style explained 76 per cent of the variance in satisfactionwith medical care. These authors conclude that, for patients, competencein communication may be a facet of medical competence. In Ught of this

18 Ellen C. Annandale

research 'improved rapport' may indeed be a very real and potent but,nonetheless, fundamentaUy mispl&ced antidote to litigation.

MRC Medical Sociology Unit6 Lilybank GardensGlasgow G12 8QQ

Acknowledgments

I wish to thank PhU Brown and Sarah Cunningham-Burley for helpfulcomments on an earlier version of this paper.

Notes

1 Legal commentary does not, of course, strictly reflect the view of the medicalprofession. But as it is located in medical and dental journals this suggests that itis seen as pertinent to, perhaps even endorsed by, medicine.

2 With the increased ease of communication between physicians in differentlocalities, the 'locality rule' is in many cases no longer recognised by the court(Harrison et al., 1985).

3 In the late 1980s there has been much debate about putting malpractice on acontractual basis where individual physicians and their patients would negotiatehow to manage risk (Robinson, 1986). The usual objection to such a changecentres, quite understandably, around the unequal access to knowledge ofpatient and doctor (Epstein, 1986). Havighurst (1986), one of the foremostprotagonists in the debate, has suggested specimen contracts that a patient mightagree to which absolve the physician of responsibility for all but gross negligence(i.e., willful neglect) in return for the physician's acceptance of that individual asa patient. Such moves are problematic and, as Law (1986) points out,misconstrue the nature of medical malpractice for patients typically do not wantto pay less and get less protection, but want higher quality at reduced costs.

4 The collateral source rule allows plaintiffs to recover amounts for which theyhave already been reimbursed under their own insurance. Recent refonns haverequired that collateral sources be offset against awarded damages (Robinson,1986; Schwartz, 1982).

5 The actual input that patient characteristics have in litigation is difficult todiscern. There is no data on psychological characteristics. Research on socio-demographic characteristics either suggests that patients who sue are representativeof the population as a whole (DHEW, 1973) or that they are disproportionatelyfrom the white-collar and better educated (Doherty and Haven, 1977; Brown,1980). Though this evidence is slight, this would appear to be in contrast tophysicians' own perceptions suggesting that suit-proneness may be a function ofsocial distance; that it is those patients who have characteristics the least incommon with physicians who are seen as more likely to sue.

The malpractice crisis 19

6 It should be pointed out that some physicians have argued against the use of thedoctor-patient relationship to lessen the impact of the malpractice crisis. Tanay(1983:271), for instance, remarks that, 'Good doctor-patient relationships arehighly desirable for a variety of reasons; malpractice prevention is not one ofthem.' This comment, though, does not detract from the centrality of the doctor-patient relationship in discussions of malpractice; in fact, it highlights its salience.

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