February 1999 Bulletin

What you say matters-now or in court

Mediation panel finds many conflicts caused by failure to communicate

By Sandra Lee Breisch

A self-described "great cmmmunicator," the orthopaedic surgeon now sat before a disgruntled patient and a mediator.

"The patient felt that the physician did not do what was clinically right and on a deeper level, that there wasn't enough communication going on for a proper diagnosis" explains mediator Leonard J. Marcus, PhD, director, Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health.

The patient had filed a complaint with Board of Registration of Medicine in Massachusetts which reached the Medical Liability Mediation Project. The project is a collaborative pilot program developed last year by an alliance of the Massachusetts Medical Society, the Massachusetts Bar Association and the Harvard School of Public Health, Program for Health Care Negotiation and Conflict Resolution.

The program's goal: to resolve potential medical liability matters before they reach the court system; and to give each party a better understanding of the other's perspective.

"As I watched the doctor talk to the patient, I saw that his attitude, body language and tone of speech made it very clear that the physician didn't pay much attention to what the patient thought or felt," explains Marcus. "The physician was being very arrogant. He so intimidated his patient that the communication channels were blocked. As a result there were problems in clinical care. The physician really wasn't able to see his own strengths and weaknesses as a communicator."

Still, another complaint stemmed from an unscheduled patient visit. "The same patient walked into his physician's office, told the staff he was not feeling well and wanted to see his physician," explains Marcus. "The staff berated the man, saying, 'You just can't walk into this office and see the doctor. If you're having an emergency problem, go to the emergency room.'"

"If the staff is treating his patients this way-with such arrogance-it demonstrates a 'shadow effect.' The physician set a tone that was very demeaning to his staff, and they in turn, demeaned the physician's patients."

Complaints like those often don't reach the level of mediation, but rather the court system. "This program came out of a recognition that it may be more effective to utilize mediation to resolve medical liability matters than a very prolonged, time-consuming litigation," explains Joan E. Roover, interim executive director of the Center for Health Care Negotiation. Promotional materials about the program are being distributed to professional liability insurance companies, physicians and members of the bar association.

In many instances, the conflict that creates the need for a mediation is that the parties aren't understanding each other, says Roover. "When you add the additional emotional overlay involved in health care, it creates even more serious problems" she adds. "And there's a different level of healing that can be accomplished that doesn't necessarily get accomplished when the case is litigated in the courtroom."

It'll benefit physicians to work with their office staff to create the kind of culture within the office that conveys a caring, concerned atmosphere.

The physicians, who are at the top of their totem pole, should set the right expectations for how their office staff should relate to patients. This can short-circuit a lot of angry feelings and ill-will that gets created from the lack of communications.

Document complaints-particularly if you believe this may be problematic case down the road.

According to Roover, the pace of health care, as a result of managed care, has really cost the public the human caring dimension of the doctor/patient relationship. "It's true that mediation can be an effective way to resolve conflicts-but good solid effective communication is useful in helping to prevent the conflict from arising," she stresses.

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