Impact of Shared Decisionmaking on Legal Complaints in Medicine
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Florida State University**We aren't endorsed by this school
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LAW 6725
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Medicine
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Dec 11, 2024
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The Effect of Shared Decisionmaking on Patients’Likelihood of Filing a Complaint or Lawsuit: ASimulation StudyElizabeth M. Schoenfeld, MD, MS*; Shelby Mader, BS; Connor Houghton, DO; Robert Wenger, DO; Marc A. Probst, MD, MS;David A. Schoenfeld, PhD; Peter K. Lindenauer, MD, MSc; Kathleen M. Mazor, EdD*Corresponding Author. E-mail:elizschoen@gmail.com, Twitter:@EMSchoenfeld.Study objective:Shared decisionmaking has been promoted as a method to increase the patient-centeredness of medicaldecisionmaking and decrease low-yield testing, but little is known about its medicolegal ramifications in the setting of an adverseoutcome. We seek to determine whether the use of shared decisionmaking changes perceptions of fault and liability in the case ofan adverse outcome.Methods:This was a randomized controlled simulation experiment conducted by survey, using clinical vignettes featuring no shareddecisionmaking, brief shared decisionmaking, or thorough shared decisionmaking. Participants were adult US citizens recruitedthroughanonlinecrowd-sourcingplatform.Participantswererandomizedtovignettesportraying1of3levelsofshareddecisionmaking.All other information given was identical, including thefinal clinical decision and the adverse outcome. The primary outcome wasreported likelihood of pursuing legal action. Secondary outcomes included perceptions of fault, quality of care, and trust in physician.Results:We recruited 804 participants. Participants exposed to shared decisionmaking (brief and thorough) were 80% less likelyto report a plan to contact a lawyer than those not exposed to shared decisionmaking (12% and 11% versus 41%; odds ratio 0.2;95% confidence interval 0.12 to 0.31). Participants exposed to either level of shared decisionmaking reported higher trust, ratedtheir physicians more highly, and were less likely to fault their physicians for the adverse outcome compared with those exposed tothe no shared decisionmaking vignette.Conclusion:In the setting of an adverse outcome from a missed diagnosis, use of shared decisionmaking may affect patients’perceptions of fault and liability. [Ann Emerg Med. 2019;74:126-136.]Please see page 127 for the Editor’s Capsule Summary of this article.Readers: click on the link to go directly to a survey in which you can providefeedbacktoAnnalson this particular article.Apodcastfor this article is available atwww.annemergmed.com.0196-0644/$-see front matterCopyright © 2018 by the American College of Emergency Physicians.https://doi.org/10.1016/j.annemergmed.2018.11.017SEE EDITORIAL, P. 137.INTRODUCTIONBackgroundShared decisionmaking, an approach in which cliniciansand patients share the best available evidence when faced withthe task of making decisions, and in which clinicians supportpatients in considering options to achieve informedpreferences, has been called“the pinnacle of patient-centeredcare.”1,2It has been promoted and studied for decades underthe premise that it enables patient-centered care, facilitatespatient autonomy, and may improve resource use.3-5Shareddecisionmaking has also been proposed as a method todecrease overtestingbecausesome evidencesuggeststhat whenpatients fully understand risks and benefits, they are less likelyto choose invasive or aggressive options.6,7In this way, shareddecisionmaking mayreducedefensivemedicine,in whichtestsof marginal utility are ordered primarily to decrease thephysicians’perceived medicolegal risk.8The practice ofdefensive medicine is thought to cost an estimated $46 billionannually in theUnited States, where the majorityof physiciansreport overusing tests to mitigate their liability.8,9ImportanceMore than 75% of emergency physicians will be namedin a malpractice claim at some point in their career, andthose who are will spend an average of greater than 4 yearsengaged in that claim.10Emergency medicine has highmalpractice risk because of the undifferentiated patientpopulation, limited time, and high medical acuity.11Mostemergency physicians admit to ordering medicallyunnecessary imaging and cite fear of malpractice as a main126AnnalsofEmergency MedicineVolume74, no. 1:July2019THE PRACTICE OF EMERGENCY MEDICINE/ORIGINAL RESEARCHDownloaded for Anonymous User (n/a) at Florida State University from ClinicalKey.com by Elsevier on May 10, 2021. For personal use only. No other uses without permission. Copyright ©2021. Elsevier Inc. All rights reserved.
Editor’s Capsule SummaryWhat is already known on this topicThe practice of emergency medicine putspractitioners at risk of malpractice litigation. We havelimited understanding of how to mitigate this risk.What question this study addressedDoes the practice of shared decisionmaking changethe likelihood that a patient with a bad outcome willinitiate a lawsuit?What this study adds to our knowledgeAccording to a written simulation of delayed diagnosispresented to a nonrandom general population throughthe Internet, the use of shared decisionmaking mayalter patients’sense of fault and reduce liability risk.How this is relevant to clinical practiceThis work provides tentative additional support forthe use of shared decisionmaking in daily practice.reason, but also recognize that involving patients in shareddecisionmaking could help decrease the number ofmedically unnecessary tests ordered.7However, no clearevidence exists in regard to the effect of shareddecisionmaking on malpractice risk, and physicians havecited this as a barrier to implementation of suchdecisionmaking.12-14Goals of This InvestigationDecreasing unnecessary testing and reducing physicians’medicolegal risk are not the primary objectives of shareddecisionmaking. However, to gather evidence to supportimplementation efforts, and in response to input fromphysician-stakeholders,12we sought to assess the potentialmedicolegal consequences of shared decisionmaking.Specifically, we sought to determine whether emergencydepartment (ED) patients would have different perceptions offault and liability when physicians engaged them in shareddecisionmakingcomparedwith whenphysiciansconveyed thesame information but used a physician-centered approach toclinical decisionmaking. We hypothesized that participants ina simulation would self-report a lower likelihood of intentionto contact a lawyer if shared decisionmaking was used.MATERIALS AND METHODSStudy DesignWe conducted a randomized experiment byquestionnaire (Figure 1). Instrument design, development,and testing are described below.Selection of ParticipantsWe used Amazon Mechanical Turk (MTurk) to recruitrespondents aged 18 years and older and residing in theUnited States (Amazon MTurk Beta, Seattle, WA).15MTurk is an online, Web-based platform that allowsresearchers to crowd-source tasks such as surveys andexperiments. Its use for academic research has beenextensively studied, and a recent systematic review foundthat results obtained through MTurk were largelycomparable to those collected by more conventional meanssuch as convenience sample recruiting.16-18Respondentswere asked various questions to assess their similarity to EDpatients (such as relating to their own use of the ED).Respondents were provided an incentive according thestandard MTurk guidelines based on the duration ofparticipation (8 to 12 minutes) and federal minimum wage($7.25/hour), which resulted in a payment of $1.50.Respondents are prevented from answering surveys morethan once. Because MTurk closes a task once the requestednumber of respondents is reached, a response rate cannot becalculated. The platform directed participants to the survey,which was created with Qualtrics, allowing randomizationof each participant to 1 of 3 groups (version 11.17;Qualtrics, Provo, UT). The study was granted exempt statusby the Baystate Medical Center institutional review board.InterventionsA vignette-based questionnaire was developed withprevious literature and input from practicing emergencyphysicians.19,20Three versions of the questionnaire weredeveloped, with each version varying the degree of shareddecisionmaking that occurred (no shared decisionmaking,brief shared decisionmaking, and thorough shareddecisionmaking). The questionnaire was refined through29 cognitive interviews and was piloted twice in 2 groups of30 participants. We decided to use the clinical scenario ofsuspected appendicitis for 2 reasons;first, physicians reportusing shared decisionmaking in this scenario, and second,“failure or delay in diagnosis”is the most common reason alawsuit isfiled against an emergency provider.12,21Thefinal questionnaire (Appendixes E1 to E4, availableonline athttp://www.annemergmed.com) consisted of 6sections: a vignette describing the patient’s presentation tothe ED for abdominal pain; 1 of 3 possible patient-physician dialogues in regard to the ordering of a computedtomography (CT) scan of the abdomen and pelvis; amanipulation check to assess whether participants read thedialogue carefully and recognized the aspects ofcommunication presented; the conclusion of the scenario,which resulted in a repeated ED visit and a CTdemonstrating a ruptured appendix (and an explanation ofVolume74, no. 1:July2019AnnalsofEmergency Medicine127Schoenfeld et alShared Decisionmaking and LiabilityDownloaded for Anonymous User (n/a) at Florida State University from ClinicalKey.com by Elsevier on May 10, 2021. 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the adverse consequences of the delay in diagnosis); itemsassessing the participants’response to the scenario anddialogue in light of the adverse outcome; and demographicvariables. None of the sections varied other than thesecond, and each section is described in detail below.A detailed description of dialogue development isavailable inAppendix E5(available online athttp://www.annemergmed.com). To ensure realistic dialogues, 301practicing emergency clinicians contributed to dialoguedevelopment by indicating what concepts they usuallyconvey both when having a shared decisionmakingconversation in the simulated clinical scenario and whennot engaging patients in decisionmaking about the use of aCT scan. In regard to content, the no shareddecisionmaking dialogue contained the same informationand was the same length as the brief shared decisionmakingone (eg, reasons to return to the ED). The differencebetween the no shared decisionmaking and brief shareddecisionmaking scenarios was that the physician explainedthat a decision needed to be made and solicited thepreferences of the patient. In the brief shareddecisionmaking scenario, the physician points out that heor she is giving the“advantages and disadvantages,”but theactual information conveyed is the same as in the no shareddecisionmaking group. The thorough shareddecisionmaking dialogue contained additional informationand was longer.Final questionnaires differed only in the dialogue betweenthe patient and physician (Figure 1); the rest of the vignettewas identical across all 3 groups (the initial explanation of thepatient’s presenting concern and thefinal outcome). In allvignettes, a CT scan was not obtained and the patient cameback to the ED with a ruptured appendix requiring anextensive surgical procedure, a prolonged recovery, and a 6-week absence from work. In all vignettes, after the rupturedappendix was diagnosed, a physician explained that had theCT been obtained on thefirst ED visit, the surgicalprocedure and recovery would have been significantlyreduced. Each participant received only one vignette and wasnot aware of the manipulated variable.Methods of MeasurementA manipulation check asks participants directly aboutthe manipulated variable—in this case, the degree of shareddecisionmaking—to ensure that the variable is trulyperceived as different between groups.22To assess whetherthe dialogues communicated the degree of shareddecisionmaking intended, participants were given adescription of shared decisionmaking and asked whetherthe dialogue, in their opinion, met the definition provided.They also completed the Shared Decision MakingQuestionnaire–9, a validated measure of shareddecisionmaking that asks 9 questions about whether aconversation met the criteria for shared decisionmakingFigure 1.Components of the questionnaire presented to participants (full questionnaire and dialogues inAppendixes E1 to E4,available online athttp://www.annemergmed.com).SDM, Shared decisionmaking.Shared Decisionmaking and LiabilitySchoenfeld et al128AnnalsofEmergency MedicineVolume74, no. 1:July2019Downloaded for Anonymous User (n/a) at Florida State University from ClinicalKey.com by Elsevier on May 10, 2021. For personal use only. No other uses without permission. Copyright ©2021. Elsevier Inc. All rights reserved.
(such as“My physician made clear that a decision needs tobe made”).23Participants were instructed to consider both whathappened at theirfirst ED visit (the manipulated dialogue)and the conclusion of the scenario (the adverse outcome)when answering the remaining questions. A set of 5 items wasdeveloped to assess participants’behavioral intentions, withbehaviors ranging from complaining to friends and family tocontacting a lawyer and initiating a lawsuit. Because all 5items referred to behaviors (eg,“How likely would you be tofile a formal complaint with the claims department about yourfirst ED visit?”), the 5 response options were“very unlikely,”“somewhat unlikely,” “neutral,” “somewhat likely,”and“verylikely.”In accordance with our previous work involvingmedical error, 7 items were developed to assess feelings ofblame and fault (eg,“The physician in this case was at fault”),and 5 response options were provided:“strongly disagree,”“disagree,” “neutral,” “agree,”and“strongly agree.”19Fouritems assessed perception of overall care (the HospitalConsumer Assessment of Healthcare Providers and Systems),whether the dialogue was perceived to be realistic, and thephysician’s communication skills.24Last, participants wereasked tofill out a validated 5-item Trust in Physician Scale.25Thefinal set of items elicited standard demographicinformation (eg, age, race, primary language, education,health insurance) and previous experience with medicalmalpractice. To assess for generalizability with ED patients,participants were also asked whether they had been to anED as a patient, family member, or friend, and how manyvisits they had had in the past 12 months.Outcome MeasuresThe primary outcome was the proportion of participantsin each group who, after reading the entire vignette,responded that they were“somewhat likely”or“very likely”to contact a lawyer to discuss their options. Secondaryoutcomes included other measures of fault and blame,physician ratings, and reported Trust in Physician score.Primary Data AnalysisThe sample size needed for this study was calculatedaccording to the assumption that a difference in“intent tosue”from 20% to 10% would be clinically meaningful. Inaccordance with this assumption, 250 participants pergroup would give a power of 86% to detect this degree ofdifference at a 2-sided .05 significance level. Because wehad 3 groups and wanted to account for missing data, weplanned to have approximately 800 total respondents.Descriptive statistics were used to describe thecharacteristics of participants.c2And Fisher’s exact testswere used to assess whether degree of shareddecisionmaking influenced responses to the itemsintended to measure intent to sue and secondarymeasures, and 95% confidence intervals (CIs) werecalculated. Perception of liability was dichotomized, with“somewhat likely”and“very likely”combined, and“veryunlikely,” “somewhat unlikely,”and“neutral”combined.Statistical analyses were completed with R (version 3.4; RFoundation for Statistical Computing, Vienna, Austria;http://www.R-project.org/).RESULTSCharacteristics of Study SubjectsA total of 812 respondents were randomized and 804had complete data for the manipulation check and theprimary outcome. Participants were aged 19 to 73 years,with a mean age of 36 years, and were 46% women and79% white (Table 1). Eighty-eight percent of participantshad visited an ED as a patient or friend or family member.There were no significant differences between groups inregard to collected demographics. Twenty-two percent ofparticipants reported that they or a family member had hadan experience with a similar medical scenario (with orwithout an adverse outcome), and 3% reported they hadfiled a claim or lawsuit against a health care provider.The results of the manipulation check indicated thatrespondents understood the vignettes and recognized thepresence or absence of shared decisionmaking. In the noshared decisionmaking group, 22% of respondents (95%CI 17% to 27%) reported that there was shareddecisionmaking, whereas for the brief shared decisionmakingand thorough shared decisionmaking groups, this proportionwas 89% (95% CI 83% to 93%) and 94% (95% CI 91% to97%). Measurement through the Shared Decision MakingQuestionnaire–9 concurred, with mean scores of 36 of 100,78 of 100, and 84 of 100, respectively (95% CI 30% to41%, 73% to 83%, and 79% to 88%, respectively;P<.01for between-group differences for all 3 groups). In regard tothe realism of the vignette, 70%, 77%, and 74% of eachgroup agreed that the description of what the physician saidwas realistic (95% CI 65% to 75%, 72% to 82%, and 69%to 79%, respectively;P¼.13).Main ResultsWithin the no shared decisionmaking group, 41% ofrespondents reported that they were“somewhat”or“verylikely”to contact a lawyer to discuss litigation; thesepercentages were 12% and 11% for the brief and thoroughshared decisionmaking groups, respectively. Comparingbrief shared decisionmaking with no sharedSchoenfeld et alShared Decisionmaking and LiabilityVolume74, no. 1:July2019AnnalsofEmergency Medicine129Downloaded for Anonymous User (n/a) at Florida State University from ClinicalKey.com by Elsevier on May 10, 2021. 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Table 1.Participant characteristics.CharacteristicNo SDM,n[270Brief SDM,n[274ThoroughSDM,n[260Age, mean (median), y36.0 (33)35.0 (32)36.2 (34)Sex, No. (%)Men141 (52.6)150 (54.9)139 (53.7)Women126 (47.0)120 (44.0)118 (45.6)Nonbinary/third gender03 (1.1)2 (0.8)Race/ethnicity, No. (%)White205 (75.9)219 (79.9)206 (79.2)Black24 (8.9)24 (8.8)24 (9.2)Asian20 (7.4)18 (6.6)17 (6.5)Multiracial10 (3.7)5 (1.8)6 (2.3)American Indian or AlaskaNative2 (0.7)4 (1.5)1 (0.4)Other4 (1.5)2 (0.7)4 (1.5)Prefer not to answer5 (1.9)2 (0.7)2 (0.8)Ethnicity, No. (%)Not Hispanic or Latino245 (91.8)228 (83.5)221 (86.7)Hispanic or Latino15 (5.6)39 (14.3)29 (11.4)Prefer not to answer7 (2.6)6 (2.2)5 (2.0)Primary language, No. (%)English263 (98.5)267 (98.5)251 (97.7)Spanish2 (0.7)01 (0.4)Chinese1 (0.4)1 (0.4)2 (0.8)Other1 (0.4)3 (1.1)3 (1.2)Education, No. (%)>4-year college degree24 (9.0)33 (12.1)35 (13.6)4-year college degree105 (39.3)108 (39.7)91 (35.4)Some college or 2-year degree103 (38.6)88 (32.4)90 (35.0)High school graduate or generalequivalency diploma33 (12.4)41 (15.1)40 (15.6)Some high school but did notgraduate1 (0.4)1 (0.4)1 (0.4)Prefer not to answer1 (0.4)1 (0.4)0Employment status, No. (%)Employed, working±40 h/wk161 (60.1)191 (70.0)165 (64.0)Employed, working 1–39 h/wk57 (21.3)40 (14.7)47 (18.2)Not employed, looking for work16 (6.0)13 (4.8)17 (6.6)Not employed, not looking forwork6 (2.2)10 (3.7)9 (3.5)Student10 (3.7)5 (1.8)10 (3.9)Retired8 (3.0)5 (1.8)6 (2.3)Disabled, not able to work6 (2.2)4 (1.5)2 (0.8)Prefer not to answer4 (1.5)5 (1.8)2 (0.8)Ever worked in health care,No. (%)Yes36 (13.5)42 (15.5)47 (18.1)Table 1.Continued.CharacteristicNo SDM,n[270Brief SDM,n[274ThoroughSDM,n[260Ever worked in law or the legalsystem, No. (%)Yes9 (3.4)22 (8.1)20 (7.8)Total household income lastyear, No. (%), $<25,00046 (17.2)50 (18.3)57 (22.0)25,000–34,99945 (16.8)40 (14.7)37 (14.3)35,000–49,99954 (20.1)55 (20.1)43 (16.6)50,000–74,99958 (21.6)69 (25.3)61 (23.6)75,000–99,99934 (12.7)30 (11.0)27 (10.4)100,000–149,99920 (7.5)16 (5.9)19 (7.3)±150,0005 (1.9)9 (3.3)11 (4.2)Prefer not to answer6 (2.2)4 (1.5)4 (1.5)Ever visited a US ED as a patientor friend/family member, No. (%)Yes236 (88.4)240 (88.9)220 (85.6)No. of times ED visited in thepast year, No. (%)0161 (60.1)171 (62.6)164 (63.3)1–294 (35.1)81 (29.7)86 (33.2)3–512 (4.5)18 (6.6)7 (2.7)±61 (0.4)3 (1.1)2 (0.8)Self-rating of participant’s overallhealth, No. (%)Excellent36 (13.5)41 (15.0)49 (18.9)Very good100 (37.5)107 (39.2)87 (33.6)Good89 (33.3)91 (33.3)93 (35.9)Fair37 (13.9)30 (11.0)26 (10.0)Poor5 (1.9)4 (1.5)4 (1.5)Type of insurance, No. (%)Private or commercial148 (56.8)156 (57.6)150 (59.5)Medicaid or another insuranceplan through home state46 (17.6)68 (25.1)45 (17.9)Medicare (usually for people>65 y or disabled)16 (6.1)12 (4.5)15 (6.0)No insurance50 (19.2)32 (11.8)40 (15.9)Other1 (0.4)3 (1.1)2 (0.8)Everfiled a claim or lawsuit of any sortagainst a physician or other healthcare provider, No. (%)Yes3 (1.1)10 (3.7)12 (4.7)Had an experience, either as a patientor as a friend/family member in amedical scenario similar tothis example, No. (%)Yes68 (25.4)56 (20.5)53 (20.6)Shared Decisionmaking and LiabilitySchoenfeld et al130AnnalsofEmergency MedicineVolume74, no. 1:July2019Downloaded for Anonymous User (n/a) at Florida State University from ClinicalKey.com by Elsevier on May 10, 2021. For personal use only. No other uses without permission. Copyright ©2021. Elsevier Inc. All rights reserved.
decisionmaking, the odds ratio for contacting a lawyer was0.20 (95% CI 0.12 to 0.31), and the odds ratio for thesame question in comparing thorough shareddecisionmaking with no shared decisionmaking was 0.17(95% CI 0.11 to 0.28). That is, participants exposed to anydegree of shared decisionmaking were 80% less likely toreport a plan to contact a lawyer compared with those notexposed to shared decisionmaking.The differences between the no shared decisionmakinggroup and both shared decisionmaking groups were alsopresent for other measures of dissatisfaction and perceivedliability (Figure 2); however, there were no statisticallysignificant differences between responses for the 2 shareddecisionmaking groups.Responses about blame and fault were similar to thosefor primary outcome measures (Table 2). Fewerparticipants in the 2 shared decisionmaking groups believedan error had occurred, fewer thought the physician was atfault, and more believed the patient and the physicianshared responsibility for the outcome.Overall ratings of the ED visit improved as the degree ofshared decisionmaking increased. This was also observedfor the ratings of the physician’s communication skills(Figure 3).In regard to the 5-item Trust in Physician Scale, scoreswere significantly different between groups. Of a possible25 points, the no shared decisionmaking group had a meanscore of 11.2 points, and brief and thorough shareddecisionmaking groups had mean scores of 16.7 and 18.4points, respectively (95% CI 9.7 to 12.7, 15.3 to 18.1, and17 to 19.7, respectively;P<.01 for between-groupdifferences for all 3 groups).LIMITATIONSOur study has several limitations. First, we usehypothetical vignettes. Because of the difficulties in assessingthe effect of shared decisionmaking on actual lawsuits, wechose to use a hypothetical scenario with potential EDpatients to assess reactions to an adverse event, an approachwe have used before.19By using vignettes and dialogues, wewere able to randomize participants to controlled versions ofa patient-clinician interaction and assess the likelihood of anoutcome that is relatively rare. From an ethical perspective,we would have been unable to perform this study withoutusing hypothetical vignettes. Additionally, previous researchon the use of“analogue patients”(vignettes) has concludedthat this method is valid and reliable for gathering patient-perception data.22,26Figure 2.Participants’responses to“How likely would you be able to.”Schoenfeld et alShared Decisionmaking and LiabilityVolume74, no. 1:July2019AnnalsofEmergency Medicine131Downloaded for Anonymous User (n/a) at Florida State University from ClinicalKey.com by Elsevier on May 10, 2021. For personal use only. No other uses without permission. Copyright ©2021. Elsevier Inc. All rights reserved.
Our method assumes that patients’responses to ourscenarios are at least somewhat predictive of what theirreal behavior would be in the same situation, but thiscannot be fully known. Psychology literature, includinga meta-analysis of greater than 80,000 subjects,demonstrates a positive correlation between intention andbehavior.27Sheeran et al27also note that the“intention-behavior gap”(when intention and behavior do notmatch) is due much more to“inclined abstainers”—thosewho self-report intention but do not engage in thebehavior—than those who report no intention and thenengage in the behavior. A systematic review of clinicians’intentions and behavior supports this notion.28Taken asa whole, although it is possible or even likely that theproportion of participants who would sue reported in thisstudy is different from what would be observed in reality,the direction of the difference caused by shareddecisionmaking is likely accurate.Table 2.Responses in regard to blame and responsibility.QuestionNo SDM, No. (%)Brief SDM, No. (%)Thorough SDM, No. (%)ORIn this scenario, who made the decision not to obtain a CT scan on thefirst visit?The patient alone6 (2.2)43 (15.8)66 (25.4)No SDM vs brief: OR 0.03(95% CI 0.02–0.05)No SDM vs thorough: OR 0.04(95% CI 0.03–0.07)The physician alone235 (87.0)14 (5.1)5 (1.9)The physician and the patienttogether*26 (9.6)211 (77.6)184 (70.8)Not sure3 (1.1)4 (1.5)5 (1.9)In your opinion, for a decision like this, who should make the decision?The patient alone8 (3.0)19 (7.0)28 (10.8)No SDM vs brief: OR 1(95% CI 0.7–1.6)No SDM vs thorough: OR 1.6(95% CI 1.1–2.4)The physician alone31 (11.5)33 (12.2)44 (17.0)The physician and the patienttogether*212 (78.5)208 (77.0)179 (69.1)Not sure19 (7.0)10 (3.7)8 (3.1)In your opinion, not ordering a CT scan at thefirst visit was:Not a medical mistake24 (8.9)69 (25.4)98 (37.8)No SDM vs brief: OR 3.6(95% CI 2.6–5)No SDM vs thorough: OR 4(95% CI 2.8–5.8)A minor medical mistake68 (25.3)109 (40.1)78 (30.1)A serious medical mistake*177 (65.8)94 (34.6)83 (32.0)The physician in this case made an error.Agree/somewhat agree*234 (86.7)124 (35.4)86 (33.3)No SDM vs brief: OR 7.8(95% CI 5.1–12)No SDM vs thorough: OR 13(95% CI 8.5–20)Neutral13 (4.8)56 (20.5)39 (15.1)Somewhat disagree/disagree23 (8.5)93 (34.1)134 (51.7)The physician in this case was at fault.Agree/somewhat agree*222 (82.5)95 (34.9)75 (28.9)No SDM vs brief: OR 8.8(95% CI 5.8–13)No SDM vs thorough: OR 11(95% CI 7.7–17.6)Neutral28 (10.4)60 (22.1)46 (17.7)Somewhat disagree/disagree19 (7.1)117 (43.0)139 (53.5)The patient in this case was at fault.Agree/somewhat agree*32 (11.8)77 (28.3)84 (32.3)No SDM vs brief: OR 0.5(95% CI 0.3–0.8)No SDM vs thorough: OR 0.4(95% CI 0.25–0.63)Neutral31 (11.5)62 (22.8)55 (21.2)Somewhat disagree/disagree127 (76.7)133 (28.9)121 (46.6)In this case, the patient and the physician share the responsibility for the outcome.Agree/somewhat agree*32 (11.8)165 (60.4)166 (63.9)No SDM vs brief: OR 0.09(95% CI 0.06–0.14)No SDM vs thorough: OR 0.07(95% CI 0.05–0.12)Neutral39 (14.4)49 (17.9)44 (16.9)Somewhat disagree/disagree199 (73.7)59 (21.7)50 (19.2)OR, Odds ratio.*ORs presented are based on pairwise comparisons for these responses.Shared Decisionmaking and LiabilitySchoenfeld et al132AnnalsofEmergency MedicineVolume74, no. 1:July2019Downloaded for Anonymous User (n/a) at Florida State University from ClinicalKey.com by Elsevier on May 10, 2021. For personal use only. No other uses without permission. Copyright ©2021. Elsevier Inc. All rights reserved.
Additionally, whether a patient considers suing doesnot alone predict whether a lawsuit will be broughtagainst a physician because numerous other factorsinfluence whether a case is pressed. Furthermore, thedemographic characteristics of the MTurk responderssuggest that they have higher educational attainment andbetter health compared with patients surveyed recently ina multisite survey of urban EDs, suggesting a highermean socioeconomic status.29Evidence suggests patientswith lower socioeconomic status sue physicians lessfrequently, but it is unknown whether the effects ofshared decisionmaking on liability would be as robustin a different population.30Although the MTurkpopulation may not have had the same mind-set as EDpatients, the majority reported an ED visit, and 3%reported havingfiled a claim or lawsuit against a healthcare provider.Last, our study assessed only one scenario and onesetting—missed appendicitis in the ED—and ourfindingsmay not generalize to other scenarios in the ED or othersettings. Although it is unclear whether the effects of shareddecisionmaking would endure for a more significantadverse outcome, 3% of the participants in this studyreportedfiling a claim or lawsuit against a health careprovider. This is much higher than reported rates oflawsuits, which have been estimated to be related to0.001% and 0.03% of all hospital visits, suggesting thatthis group of participants was an appropriate cohort fortesting whether an intervention changed litigiousness.11,31DISCUSSIONTo our knowledge, this is thefirst large study to assesswhether the use of shared decisionmaking confersmedicolegal protection in the setting of an adverseoutcome. Although intent as reported on a survey does notalways predict behavior, our results suggest that the use ofshared decisionmaking confers medicolegal protection inthe event of an adverse outcome. The consistent dose-response curve observed in our secondary outcomes(Figure 3and Trust in Physician Scale) is further evidenceof the effect of shared decisionmaking on the outcomesmeasured.Our results are consistent with those of a similarexperimental study by Barry et al32assessing hypotheticaljurors’attitudes toward malpractice in a case involving adecision aid for prostate cancer screening. Rather thanusing hypothetical jurors, we thought that asking potentialpatients to be respondents was more relevant to ourquestion because avoiding a lawsuit altogether is morerelevant to both physicians and patients than the success orfailure of litigation.We used practicing clinicians to create realistic scenariosand attempted to balance the actual content of informationexchanged. The no shared decisionmaking and the briefshared decisionmaking scenarios were equivalent in theirinformational content. Therefore, differences found are notdue to amount of information exchanged. All participantshad an unfavorable outcome. Despite this and theretrospective bias it created, significantly fewer participantsFigure 3.Participants’responses to questions rating the ED and physician.Schoenfeld et alShared Decisionmaking and LiabilityVolume74, no. 1:July2019AnnalsofEmergency Medicine133Downloaded for Anonymous User (n/a) at Florida State University from ClinicalKey.com by Elsevier on May 10, 2021. For personal use only. No other uses without permission. Copyright ©2021. Elsevier Inc. All rights reserved.
in the groups who engaged in shared decisionmakingexpressed that they thought the physician had made anerror and was at fault. They reported higher marks forcommunication and greater trust. Similarly, the briefshared decisionmaking and no shared decisionmakingscenarios were the same length. Although in realityengaging a patient in shared decisionmaking may take moretime than explaining one’s decision (such as in the noshared decisionmaking dialogue), ourfindings suggest thattime spent in conversation was not the driving factor. It isnotable that a conversation that was the same length andconveyed the same information had such notabledifferences in meaning to the participants as to elicit suchdifferent responses regarding blame and fault.Our results support the assertion that shareddecisionmaking provides patient-centered care that is valuedand appreciated by patients.2,33Despite a bad outcome,the majority of participants who had“thorough shareddecisionmaking”reported they would“probably”or“definitely”recommend this ED, as compared with less than8% of participants who did not receive shareddecisionmaking. Greater than 80% of participants gave theirphysician overall positive ratings, with greater than 90%reporting that the physician had good to excellentcommunication skills. For many participants, the positiveeffects of the shared decisionmaking managed to overcomethe negative effects of the adverse outcome in terms of theirrelationship with the physician. Although multiple studieshave shown that uncertainty can negatively affect patients’perceptions, such as increasing decisional conflict anddecreasing trust, our study suggests shared decisionmakingmay mitigate this.34When uncertainty was presented withclear options, participants rated physicians as moretrustworthy than when no shared decisionmaking occurred.The demonstrated effects on physician trust, even in thesetting of an adverse outcome, have potential downstreamconsequences for patients’overall trust in physicians and thehealth care system, and may meaningfully benefit future careand adherence. This may indicate that shareddecisionmaking could be particularly powerful in the settingof ED care, when patients have no previous relationship withtheir physicians.35This may reflect the true promise ofshared decisionmaking: that a conversation has the power toconnect 2 strangers in a way that not only improvesunderstanding but also increases trust and empowerspatients.36Ourfindings are consistent with those of previousresearch: the majority of patients want to be involved inmedical decisionmaking, even in emergency care.29,35Aminority of patients believed that the physician should havemade the decision to obtain a CT scan unilaterally, evenwhen hindsight suggested that in deciding together, thedecision led to an adverse event.In the context of what is known about why patientsinitiate litigation, ourfindings are not surprising.Numerous studies have shown poor communication to beassociated with patient complaints and litigation.37-42Recent studies in emergency medicine have failed tofindphysician characteristics that lead to increased litigation,other than simply volume of patients treated.11Althoughthis study is by no means conclusive in regard to therelationship between shared decisionmaking andmalpractice, high-quality empiric data are not likely to beforthcoming because shared decisionmaking is variablyused and variably documented. Rather than focusing onthe effects of shared decisionmaking on liability,physicians and researchers should work to promoteclinical care that is rational and inclusive of patients’preferences.In summary, the desire to avoid litigation shouldnot be the underlying rationale for using shareddecisionmaking.43This patient-centered practice shouldbe promoted and implemented because of its ethicalfoundation in respect for patient autonomy. Our studyshould ease concerns that using shared decisionmakingwill increase litigation, and it should support the ethicaland patient-centered basis for shared decisionmaking.“People don’t remember what you said[;] they rememberhow you made them feel.”44This study suggests that thefeelings imparted by even a brief shared decisionmakingconversation were significantly different from thoseexperienced when shared decisionmaking was not used,and this translated to a number of important downstreameffects. The positive and patient-centered interaction ofshared decisionmaking, called“a human expression ofcare that is careful and kind,”appears to have mitigatedthe negativity of the adverse outcome.33Physicians shouldbe aware that respectful and patient-centeredcommunication may be medicolegally protective in theevent of an adverse outcome.Supervising editor:Stephen Schenkel, MD, MPP. Specific detailedinformation about possible conflict of interest for individual editorsis available athttps://www.annemergmed.com/editors.Author affiliations:From the Department of Emergency Medicine,University of Massachusetts Medical School–Baystate, Springfield,MA (E. M. Schoenfeld, Mader, Houghton, Wenger); Institute forHealthcare Delivery and Population Science, University ofMassachusetts Medical School–Baystate, Springfield, MA(Schoenfeld, Lindenauer); the Department of Emergency Medicine,Icahn School of Medicine at Mount Sinai, New York, NY (Probst);the Department of Biostatistics, Harvard School of Public Health,and Harvard Medical School, Boston, MA (D. A. Schoenfeld); andShared Decisionmaking and LiabilitySchoenfeld et al134AnnalsofEmergency MedicineVolume74, no. 1:July2019Downloaded for Anonymous User (n/a) at Florida State University from ClinicalKey.com by Elsevier on May 10, 2021. For personal use only. No other uses without permission. Copyright ©2021. Elsevier Inc. All rights reserved.
the Department of Medicine, University of Massachusetts MedicalSchool, and Meyers Primary Care Institute, Worcester, MA (Mazor).Author contributions:EMS, MAP, PKL, and KMM conceived thestudy, designed the trial, and obtained research funding. EMSsupervised the conduct of the trial and data collection. EMS, SM,CJH, and RW refined the tool and undertook recruitment ofparticipants and managed the data, including quality control. DASprovided statistical advice on study design and analyzed the data.EMS drafted the manuscript, and all authors contributedsubstantially to its revision. EMS takes responsibility for the paperas a whole. All authors attest to meeting the fourICMJE.orgauthorship criteria: (1) Substantial contributions to the conceptionor design of the work; or the acquisition, analysis, or interpretationof data for the work; AND (2) Drafting the work or revising itcritically for important intellectual content; AND (3) Final approvalof the version to be published; AND (4) Agreement to beaccountable for all aspects of the work in ensuring that questionsrelated to the accuracy or integrity of any part of the work areappropriately investigated and resolved.Funding and support:ByAnnalspolicy, all authors are required todisclose any and all commercial,financial, and other relationshipsin any way related to the subject of this article as per ICMJE conflictof interest guidelines (seewww.icmje.org). Drs. E. M. Schoenfeld,Lindenauer, and Mazor were supported by grants from the Agencyfor Healthcare Research and Quality (1R03HS024311-01 and1K08HS025701-01A1). The project described was supported bythe National Center for Advancing Translational Sciences, NationalInstitutes of Health (NIH), award UL1TR001064. Dr. Lindenauer issupported by K24 HL132008: Research and Mentoring inComparative Effectiveness and Implementation Science. Dr.Probst is supported by a career development grant from theNational Heart, Lung, and Blood Institute of the National Institutesof Health under Award Number 1K23HL132052-02.Publication dates:Received for publication July 17, 2018.Revisions received September 27, 2018, and November 6, 2018.Accepted for publication November 12, 2018. Available onlineJanuary 3, 2019.Presented at the New England Regional Society for AcademicEmergency Medicine conference, March 2018, Worcester, MA; andthe National Society for Academic Emergency Medicineconference, May 2018, Indianapolis, IN.The content is solely the responsibility of the authors and does notnecessarily represent the official views of the NIH.REFERENCES1.Elwyn G, Laitner S, Coulter A, et al. Implementing shared decisionmaking in the NHS.BMJ. 2010;341:971-975.2.Barry MJ, Edgman-Levitan S. Shared decision making—pinnacle ofpatient-centered care.N Engl J Med. 2012;366:780-781.3.Elwyn G, Frosch D, Thomson R, et al. Shared decision making: a modelfor clinical practice.J Gen Intern Med. 2012;27:1361-1367.4.Epstein RM, Gramling RE. 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