What triggers litigation in patients – something we said, something we did? Or something more? Helen Harbourne, Claims Manager at Dental Protection, considers the issue.

How outrageous would it sound if someone told you that a successful wisdom tooth extraction performed on a 39-year-old male would result in two years of litigation, over AUD$650,000 paid in damages and solicitor fees, as well as an immeasurable reputational and personal cost to the dentist? It sounds like something that could only happen in America, but sadly this happened in Australia and to one of our Dental Protection members. And the worst part is that it is far from being an exception. 

Dental Protection published an article in 2018¹ stating that a survey conducted by our UK counterparts revealed that nine in ten dentists fear being sued by patients. The survey revealed that nearly all respondents (98%) believed that we live in an increasingly litigious society, and 77% of respondents admitted that the fear of being sued has caused them stress or anxiety. The case I mentioned in the introduction highlights that this concern is for very good reason. But I believe it doesn’t need to be like this. If we learn from our colleagues’ misfortunes and be more conscious and deliberate in our dealings with patients, perhaps you could feel more reassured.

Spotting the signs 

Mistakes and accidents happen every day and even to the most experienced, most accomplished and highly credentialled dentists. But in my experience (and studies confirm), not every person considers legal action as a solution when something goes awry. If you knew the common signs that one of your patients might be more likely to sue you than the others, do you think it would be worthwhile following a few simple guidelines to avoid the situation described above?  

Throughout my career as a personal injuries lawyer, I have seen a pattern emerge and repeated time and time again. There are patients with serious complaints/injuries who are completely satisfied (and even grateful for) a refund and their remediation/rehabilitation to be funded. While others that suffer a mere adverse outcome (for which they were usually fully warned about at the outset) instantly lawyer-up and devise a claim worth a million dollars or more. Since moving into my role at Dental Protection, I have learned that the world of dental injuries is definitely no exception to this phenomenon. 

This led me to consider, what are the particular personality traits in some individuals that lead them to be more likely to take legal action than others? And if there are common personality traits, is there something that you can do differently in your treatment of these patients to try to prevent this happening to the best of your ability? 

I'm certainly not saying it is possible to prevent all injury related litigation; that would of course be foolish. There will always be some people that simply cannot be pleased and that is inevitable. But in many cases (dare I say most cases) there are steps you can take to reduce the likelihood of a litigious outcome with people that possess a propensity to sue.

Who is most likely to sue? 

A European study was undertaken into the profile of a person most likely to litigate.²

Interestingly, the study found that the demographic characteristics of sex, educational level and economic status were not predictors of the likelihood to litigate. The dominant predictors were age, religious disposition, level of dependency on the health system and certain personality traits.

Older patients with a more religious disposition were the least likely to have litigious intentions. It is considered that a stronger religious background perhaps meant those people were more likely to view a setback or mistake as a test of faith in God or the healing process.

Patients that were more frequent users of the healthcare system were also less likely to report litigious intentions. It is considered that perhaps given they are more likely to experience dependence on their health provider this may make them feel less inclined to sue them. 

By far, it was found that the biggest indicator for the likelihood of a person to sue their practitioner, was those with a higher expectation for information during a medical consultation. Patients with greater expectations of receiving information during doctor-patient consultations were more likely to consider suing their practitioner.
Information and consent

This finding underlines the critical importance of receiving informed consent for all medical procedures after adequate informing. The study highlighted that failures in the area of doctor-patient communication are crucial in the decision to proceed in suing. 
So then, what types of people have a higher expectation for information during a medical consultation? Generally, people with higher levels of stress or anxiety are the most likely to be reliant, and to demonstrate almost obsessive behaviour about the information they require from a medical practitioner.  

Everyone, regardless of their underlying personality type, experiences or has experienced anxiety at one time or another. However, people with anxiety disorders frequently have intense, excessive and persistent worry about fear and everyday situations according to the Mayo Clinic.³ Their feelings of intense anxiety and fear or terror interfere with daily activities and are out of proportion to the actual danger.

Certainly not every single person that suffers from an anxiety disorder is going to have a propensity to sue you, but they certainly would all benefit from receiving a high standard of informed consent in relation to their dental treatment. 

When I look at the high value dental cases currently in my portfolio, all the patients involved in these cases have this element in common. They all suffered from anxiety disorders of varying degrees prior to their dental treatment, and they all had a higher than usual requirement for information during their medical consultation – as well as a continued need for information and consideration during the recovery period.  
For these people, it's about having their suffering validated and understood and, as a result, they tend to become obsessive litigants. The cost or consequences of litigation are sometimes trivial to these patients and a sense of retribution for a real or imagined slight or injustice is their foremost priority. 
 
Practitioners that adopt a more patient-centred approach experience numerous beneficial outcomes, including higher patient satisfaction and adherence and better health outcomes, but also a decrease in the likelihood that their patients might develop litigious intentions. 

Perhaps then we could consider that in getting to know our patients better at the consultation stage, not only can we identify potentially litigious patients, but we could also take requisite steps to manage them. Consider, for the sake of an extra ten minutes spent with these patients spent explaining, listening and keeping detailed records, would it not be worth saving the stress and indignity of litigation? Your future self would likely thank you for this extra investment of time. 

References

¹Dental Protection survey reveals 9 in 10 dentists fear being sued by patients
²What is the profile of patients thinking of litigation? Results from the hospitalized and outpatients’ profile and expectations study
³Anxiety disorders - Mayo Clinic