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Deconstructing the Litigious Pain Patient

Ben A. Rich JD, PhD
DOI: http://dx.doi.org/10.1111/j.1526-4637.2008.00506.x 1143-1145 First published online: 1 November 2008

Legend has it that patients in pain are a singularly disgruntled lot. Perhaps there should be nothing surprising or particularly perplexing about this phenomenon, at least to the vast majority of us who have not been blessed with a (relatively speaking) pain-free existence. For too many of those with serious chronic pain problems, the injury causing the pain is exacerbated by its persistence long beyond the period of normal healing and resolution, and then coupled with the insults too often experienced by the victims of chronic pain—doubts of others about the accuracy or even the legitimacy of their reports of pain [1]. In this issue David Fishbain and colleagues undertake an important exploration into the characteristics of pain patients whose disgruntlement is at some point expressed as an inclination to initiate legal action against their physician.

The research and analysis is important because there is a significant amount of myth and misinformation pervading the medical community and the lay public about what prompts patients to file claims against physicians. The basic assumption, despite growing evidence to the contrary, is that patients often have unrealistic expectations about the curative powers of medicine, and when those unrealistic expectations (unsurprisingly) are not realized, there is a predisposition to lash out at the physician and at the same time pursue a financial windfall from a physician whose malpractice liability insurance offers a “deep pocket”[2]. Previous efforts to systematically generate and analyze data on patients who sue their physicians reveal a much more complicated picture. First and foremost, there are many more patients who are injured by medical negligence who never file a claim than there are patients who file groundless or frivolous claims [3]. Moreover, the medical malpractice system more accurately distinguishes the meritorious and nonmeritorious claims than many physicians appear to realize or acknowledge [4].

An investigation into the characteristics of patients who contact attorneys about the possibility of suing their physician reveals that many more people confer with attorneys than actually file claims, and their inquiries are prompted by a wide variety of factors [5]. The common view among attorneys who handle medical malpractice claims for both plaintiff patients and defendant health care institutions and professionals has been that the vast majority of medical malpractice claims are precipitated by the confluence of two important factors: 1) an unanticipated adverse outcome, and 2) a failure to establish, or a breakdown in the professional-patient relationship, largely associated with effective communication or a lack thereof [6]. As for the first factor, patients whose physicians are candid and straightforward with them about the challenges posed by their medical conditions, as well as the risks and potential adverse sequelae of treatment, are much better prepared for and more tolerant of suboptimal outcomes. It is the patient to whom the challenges and risks have been downplayed, for whatever reasons, who tends to be more inclined to hold the physician accountable. The second factor helps to explain the phenomenon of physicians whose favorable claims record belies deficits in knowledge and skill. Some less-than-stellar clinicians nevertheless have very strong interpersonal skills. They relate well, perhaps even bond with their patients. Such patients are extremely reluctant to blame these physicians, often characterized as caring and compassionate, for poor outcomes.

Fishbain and colleagues identify three major variables that were highly predictive of an inclination on the part of chronic pain patients to sue their physician: 1) currently being in litigation over a Workers' Compensation claim, 2) being compelled to see a physician whom the patient did not trust, and 3) being angry with their physician. That each is a predisposing factor to thoughts of litigation is not particularly surprising.

The Workers Compensation system in place in every state is a no-fault system for compensation of employees who sustain illness or injury in the course and scope of carrying out their duties as employees. An important rationale of the system is to significantly reduce the need for and hence the likelihood that an employee will file suit against the employer. Workers Compensation claims become adversarial when employers dispute that the employee's illness or injury is work-related, or when there is a disagreement about the nature and extent of the employee's disability. At such time, employees may seek legal representation and the claim may come before an administrative law judge (hearing officer) for resolution of the dispute. If the employee/patient is already in the midst of one form of legal proceeding (albeit administrative in nature), and has felt the need to secure legal representation, then it is a smaller step to contemplate a related form of legal proceeding to redress perceived grievances with a physician. What cannot be concluded from the data in this study is that those who pursue Workers Compensation Claims are intrinsically litigious by nature.

The second variable raises as many questions as it answers, as the origin of the distrust may vary markedly. While it is typical of Workers Compensation systems to allow employers to establish panels of physicians to care for their injured employees, a similar phenomenon characterizes managed care. In both instances, most patients are not at liberty to seek medical care from any physician of their choice and still claim benefits that include covering the cost of medical care. Thus it is an open question whether any patient who is restricted in their choice of a physician by some third party will be predisposed to distrust that physician. It is true that trust is generally viewed as absolutely essential to a positive physician-patient relationship [7]. Trust in the relationship between physicians and chronic pain patients is particularly problematic for reasons that have been addressed in the pages of this section previously [8]. Even with the impressive recent advances in the field of pain medicine, chronic pain patients continue to be subjected to disproportionate levels of scrutiny and clinician demands for adherence to detailed lists of conditions for treatment, most notably signing opioid contracts and submitting to random urine drug screens. It should come as no surprise that when physicians demonstrate a lack of trust in these patients, the patients respond with their own distrust of the physician, resulting in a failure to develop a genuine therapeutic alliance.

The third variable calls to mind the admonition and reminder that “another name for angry patient is plaintiff”[9]. Physician behaviors can play a major causal role in precipitating and then failing to address anger in a timely and effective way that prevents the transition from patient to malpractice plaintiff. This failure is all-the-more regrettable because avoiding it in many instances requires nothing more than demonstrating common courtesy.

A few examples should suffice. Do not keep a patient waiting for extended periods beyond the designated appointment time on a routine basis, or without sincerely apologizing and explaining why it happened. Listen attentively and empathically to the patient's complaints, and answer their questions in a sincere and straightforward manner that is free of medical jargon or any suggestion that the question is stupid or otherwise inappropriate. If and when your proposed treatment plan makes potentially burdensome demands on the patient, take the time to explain why they are important not just for your comfort or convenience but also because they better promote the patient's welfare.

There are, to be certain, problem patients whose attitudes and behaviors would challenge even the ideal physician. But most patients are quite the opposite, and want more than anything else to find a physician to whom they can confidently entrust their search for relief from the fears and burdens of illness and injury. Fishbain and colleagues perform a valuable service when they remind clinicians how best to minimize the risk that their own unthinking or insensitive behaviors toward patients may lead to a failure to form or an irretrievable breach in the therapeutic alliance.


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