Doctor-patient relationship undermined by medical malpractice threats

opinion

Opinion contributor

Published 7:00 AM EDT Mar 21, 2019

Recently, a story circulated concerning a person being told bad news while he was a patient in an intensive care unit at a California hospital. Getting bad news while in a hospital is not at all unusual, but this story was different. The patient was informed that the hospital had run out of treatment options by an intensive care unit doctor communicating via a video monitor. The patient died shortly thereafter, and his granddaughter criticized the experience as being excessively cold and impersonal.

I am an ICU doctor and I, too, have given bad news to patients. Hearing this story, it occurred to me how the clash of expectations and promises collide in hospitals every day. No one wants to give bad news, but in our current moment, ethical practice requires a doctor be honest with a patient about serious matters such as life and death.

This was not always the case.

Why doctors lie to their patients

Hippocrates, known for his oath still taken by doctors, directs the doctor to conceal bad news from the patient and instead offer cheeriness instead of truth. Lying, to spare a patient the stress of bad news, was ethically acceptable in the recent past. Even to the present day, some doctors lie to patients to spare them the pain of bad news or to protect the doctor from the consequences of being the bearer of that bad news.

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Several years ago, I was hosting a group of doctors from Iraq as a goodwill event during the Iraq War. During dinner, I fell into conversation with an Iraqi surgeon who told me that before he operated on any patient, he would tell them the chances of survival were exceedingly small and they would likely die.

Surprised, I asked whether his practice was full of particularly complex and critically ill patients. He informed me that in fact, he operated on many individuals who were quite healthy. Why make such a claim, I asked? At the time of our conversation, Iraqi medical jurisprudence was often handled directly between the doctor and the patient or the patient's tribe. If a bad outcome occurred, the patient and the doctor would immediately agree on an amount of money to be paid in compensation. If the doctor did not pay, the punishment would be death.

Doctor-patient relationship undermined by medical malpractice threats

I do not fear such retributive justice in American health care. As an ICU doctor, however, I find I am frequently in a situation where I must confront a family’s crushed hope for a better outcome.

In the doctor-patient relationship, a doctor is supposed to provide all the necessary information for the patient to make an informed choice. Sometimes that information is provided at the moment when a person is least able to comprehend it all. Fear blinds reason and, when a doctor slides the consent form in front of you for your signature, the small print matters. As a consequence of our desire to avoid litigation, doctors and patients are transformed into lawyers negotiating a hostile takeover, each struggling to not be held accountable.

Hope is not a treatment plan

For the average person, it is very difficult to comprehend the odds of survival for complex and risky procedures. Worse, it is even more difficult to truly understand what recovery might involve. For serious procedures, survival might mean relying on a mechanical ventilator or being on dialysis. It might involve living in a facility, profound weakness, serious infection or prolonged cognitive disability.

Your doctor will inform you of these risks. It’s in the small print. You will very likely not hear it, not comprehend it, or simply believe it will never happen to you. The doctor is trying to not alarm you by withholding or muting the graphic details lest it clouds your judgment when the risks are relatively small.

Risk and probability are difficult things for people to grasp. That’s why we buy more than one lottery ticket even when it has no chance of increasing the probability of our winning. Unfortunately, it just doesn’t feel like that. When your doctor quotes a 5 percent chance of a serious complication, it just doesn’t feel like a risk. Getting consent from a patient has been transformed into a math problem as a consequence of our litigation fears, and most people are not good at math.  

The practice of medicine is miracle free, although the public loves a miracle.

Recently, I was horrified to see a large hospital advertise itself as a place of miracles. Although I hesitate to discourage hope, hope is not a plan. Medicine is also not heroic. If we require heroism, it implies that other times doctors are practicing in an inferior sort of way. Heroism implies a person is driven to exceed what is known and what is safe for some unreasonable purpose.

It might be better to consider heroes merely as individuals bad at math. If a doctor offers you a choice between certain death and near-certain death, the offer is unethical. Very-unlikely survival is not a heroic offer, and accepting it is not heroic character. Better than hope, miracles and heroism is sound, regular, reliable, repeatable and testable treatment explained slowly and carefully.

Giving bad news is never easy and receiving bad news is extraordinarily difficult. In these situations, I pull up a chair, sit down and take my time. I ask the same of the people who receive the information. Together we can generally come to an understanding and, even when the news is the worst, when a patient and family experience a conversation from a doctor that is compassionate, unhurried and in a language that is understandable, usually the reply to the doctor is gratitude.

We don’t need to be afraid of bad news, and we don’t need to sugarcoat risk or discourage grief. We are all better off when we exchange in our common humanity. 

Joel Zivot is an associate professor of anesthesiology and surgery at Emory University School of Medicine. He is also an adjunct professor of law and liberal arts at Emory University.

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