Practice of Medicine

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Don’t Make Your Patient a Victim: When Doctors Criticize Other Doctors

Executive Summary 

It is unethical for a physician to disparage another physician or suggest mismanaged care by a colleague to a patient or third party without substantial evidence. When a patient hears criticism, they may feel that care was inappropriate and that may increase the risk of litigation for both physicians. Physicians should obtain all relevant information and communicate with previous providers before reporting or disclosing concerns to the patient. 

Recommended Actions

  • Communicate clearly with specialists, generalists and subsequent physicians to ensure effective collaboration and cooperation. 
  • After thorough review of the patient’s medical records, discuss honest concerns regarding the patient’s previous care in a neutral tone. 
  • Report care that you believe to be inappropriate or in need of improvement after initiating discussion with and appreciation of the perspective of the provider in question. 

While much attention, literature and training has been developed over the past decade on the subject of medical errors and the process of disclosure, very little has been explored regarding how to respond to patients and colleagues when a doctor becomes aware of the errors of other clinicians. 

"Jousting" is the unfortunate practice of one health care professional making derogatory comments about another provider’s care, either to the patient or in the chart and without having reviewed all pertinent records or discussing concerns with the previous physician. Jousting appears as the cause of medical litigation, but until recently, it had never been studied. A 2013 article in the Journal of General Internal Medicine1 shed light on this hitherto known but underappreciated practice.   

Researchers from Rochester, Purdue and Michigan wanted to know how physicians spoke about other physicians to seriously ill patients. They evaluated this by enlisting standardized patients (SPs) to portray middle-aged men with advanced lung cancer. A medical oncologist constructed the medical record and reflected standard of practice care. 

The SPs visited family medicine and oncology physicians and the visits were secretly recorded. The SPs presented for a first visit without the physicians’ knowledge of the study. The SPs were not to ask opinions about their previous care and previous physicians. The transcripts of these visits were analyzed and divided into neutral, supportive or critical. Of the 34 encounters, 41 percent contained comments about prior care. Among 42 comments, 12 were supportive, 28 were critical and two were neutral. 

One of the interactions went like this: 

“So he radiated your ribs not your…,” said Dr. 25. 

“Yeah,” said the SP. 

“That guy’s an idiot,” said Dr. 25. 

“Doctors will throw each other under the bus,” said Susan H. McDaniel, M.D., lead author of the study from the University of Rochester Medical Center. “I don’t think they even realize the extent to which they do that or how it can affect patients.” 

Provider jousting comes in many forms. When one physician criticizes another, both may be at increased risk for litigation. When a patient hears criticism, they may feel the care they received was inappropriate. The words they hear may lead them to seek legal counsel regarding litigation. A glance away, a look of incredulity or an offhand comment may also be enough to trigger the feeling that care was inadequate. 

We always try to do our best for our patients. Medicine is complex and often we are treating patients early in the course of their illness or relying on gut instincts in their care. Autopsy studies suggest that we are wrong at least 10 percent of the time in our diagnosis and treatment decisions. It is much easier to make the right call when looking back at a case after tests are all in and the illness has evolved. Hindsight is indeed 20/20. Often those who criticize don’t have a clear understanding of what has happened and are jumping to a conclusion with incomplete facts or just the patient’s side of the story. 

Provider jousting can also occur outside of in-person interactions. A chart entry may also be damaging. “Dr. A did not return his phone calls as is usually the case” could be an example of a note in a chart that casts a bad light on the physician. Even if the care is good, that physician may have a difficult defense related to that note. 

“There is probably something reassuring in saying, ‘Boy, your doctor didn’t do a good job and now I’m going to take care of you’,” noted Dr. McDaniel. “But those kinds of comments are bad for the patient…In the moment, criticizing another physician to a patient might have felt like an effective way to fortify their own credentials and build up the patient’s trust.” Perhaps the only way we can put ourselves in suffering's way or perform complex surgeries is to feel we can do a better job than other providers. 

Whatever the reason or form provider jousting takes, The American College of Physicians Ethics Manual says, “It is unethical for a physician to disparage the professional competence, knowledge, qualifications, or services of another physician to a patient or third party or to state or imply that a patient has been poorly managed or mistreated by a colleague, without substantial evidence.”2 

Teams and teamwork are at the core of healthcare delivery these days. No one person can deliver all the parts of a patient’s care. Therefore, we need to have clear communication between specialists, generalists and subsequent physicians. Jousting has a profound effect on providers and on the emotional and physical well-being of the patient and reflects an erosion of collegiality and professionalism. 

Finally, after investigation, a physician may sometimes discern care or treatment that is clearly inappropriate or substandard. In this case, it is appropriate to discuss the situation with patients, with care and concern for what is best for them. While is it inappropriate to make negative comments about other physicians, a patient deserves an honest response with the most accurate information available. 

Trying to ascertain the facts, observations and thought processes used by another physician is challenging. It is important to relay this to the patient in a neutral way. As we have outlined, there are often other drivers to making negative statements. In the JGIM study above (where the records showed guideline-concordant care), critical remarks were still seen in one-third of the visits. Physicians must be aware of their own reactions and other reasons that can lead to negative comments. 

None of this discussion should prevent healthcare providers from reporting care that they believe to be inappropriate or in significant need of improvement through the appropriate process. Ideally, such reports should involve the discussion with and appreciation of the perspective of the provider in question. Professional review proceedings, licensing board proceeding, or other entities that perform comprehensive investigations based on all the necessary information are strongly encouraged when providers are unable to communicate or come to a performance improvement plan, or have determined that a significant issue exists that adversely affects patient care. Provider jousting has none of those elements. 

Supported by a grant from the Greenwall Foundation and by the Risk Management Foundation of the Harvard Medical Institutions, an international panel assembled to develop a collaborative approach to the issue. Subsequently, The New England Journal of Medicine published an article3 entitled “Talking with Patients about Other Clinicians’ Errors.”  Some of the excerpted principles and observations of the study included: 

"Clinicians might be tempted to use the patient’s medical record to raise concerns about a potential error without initiating a direct conversation."

In our experience, this approach is counterproductive to the aims of improving the patient’s medical care, informing and potentially educating the previously erring clinician, and provides evidence that could be taken out of context in a subsequent liability action. 

"Patients and families should come first."

Disclosure is ethically required, and patients and families should not bear the burden of digging for information about their care. There is a professional ethical responsibility to treat the patient and not to put physician needs or anxieties concerning an uncomfortable discussion with another clinician above that. 

"Explore, do not ignore."

While an ethical duty to disclose exists, that disclosure process must also contain the appropriate factual information in an appropriate setting over an appropriate course of time. The NEJM article contains a useful table outlining various clinical situations, the participants in the disclosure and the rationale for disclosing harmful errors in common situations involving other clinicians.  

Communication with all the previous clinicians and an attempt to resolve the factual history and the correct subsequent course should precede the disclosure process with the patient and family. However, the patient’s need to know dictates that communication among clinicians is time-sensitive. These situations do not get better with a delay of disclosure. 

"Institutions should lead."

Colleague-to-colleague discussions, investigation into the facts and a decision about a proper course of action requires an institution that is supportive and ultimately expects accountability and professionalism of its members. Just-in-time disclosure coaching programs can assist with these difficult situations. Involvement of trusted leaders and physician champions can greatly assist. Strive to develop a “just culture,” which the article describes as “atmospheres of trust in which people are encouraged, even rewarded, for providing essential safety-related information — but in which they are also clear about where the line must be drawn between acceptable and unacceptable behavior.” 

Call MagMutual Early

We recognize the incredible complexity and sensitivity that these situations often pose. There is no single correct approach in every situation. Please know MagMutual is available to assist in discussing the approach to these difficult situations. 

Lessons Learned  

  • Consider asking the patient neutral questions about their previous care to understand their perspective and conversations with their previous physicians.  
  • Train clinical staff and assistants on the importance of remaining neutral during an encounter with a patient and informing a physician if they notice a discrepancy in the patient’s previous care. 
  • Develop a protocol for reaching out to physicians with concerns about their patient care that avoids offensive commentary or accusatory questioning. 
Potential Damages

Criticizing the care provided by another physician can increase the risk of litigation. Although relatively infrequent, unsubstantiated or unsupported claims by one provider regarding another provider’s patient care may lead to lawsuits based on defamation and slander.  

Quiz

Answers are provided below 

True or false?  

Question 1: It is easy to judge the relevance of care and a physician’s decisions when looking back on a patient’s medical record and after the illness has evolved. 

Question 2: Physicians should disclose concerns about a patient’s medical care with the patient, regardless of how difficult it may be. 

Question 3: Physicians should disclose concerns they have with a patient’s medical treatment to the patient before communicating with the previous providers. 

 

Answers 

Question 1: True. It is easier to judge care retroactively rather than making the right call early in the course of a patient’s illness. Often physicians who criticize care don’t have a clear understanding of what has happened and can jump to a conclusion with incomplete facts. 

Question 2: True. Patients and families come first. There is a professional ethical responsibility to treat the patient and not to put physician needs or anxieties concerning an uncomfortable discussion with another clinician above that. 

Question 3: False. While there is an ethical duty to disclose, physicians must evaluate the appropriate factual information and confer with previous providers before discussing concerns with the patient.

[1] J Gen Intern Med 28(11):1405–9 May 2013

[2] ACP Ethics Manual Sixth Edition

[3] N Engl J Med 369;18 1752-1757– October 31, 2013

01/23

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Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.