Welcome to Talk EM, brought to you by the Emergency Medicine Institute, where our whole goal is promoting clinical excellence. Our focus is for the advanced practitioners: emergency medicine, nurse practitioners and physician assistants who work in the field taking care of people who are sick.

Welcome to part two of medical malpractice defense (find part one here) and a conversation about how to keep yourself safe. Sun Tzu says in his book “The Art of War,” if you know the enemy and know yourself you may not fear the result of 100 battles. You need to be proactive about how you defend yourself, and to do that you need to know the enemy and yourself. So, we have to define who the enemy is and how well you know yourself.

Too often entrepreneurs are found working in their business and not on their business. Too often couples are so busy going through the grind of having a family they don’t spend enough time working on their marriage. And too often we’re too busy working in medicine as opposed to stepping back and saying, “How am I practicing medicine? How am I thinking within the medicine?”

Let’s ask some questions: How well do you know yourself? Who’s the enemy?

Who’s the Enemy?

Now, a lot of people say it’s the lawyers, the attorneys. They’re the enemies. Is it the medical legal system? Is it our patients? Is it greed? Is it just human nature? Who is the enemy and what’s most healthy to think about as the enemy?

Is it the lawyers? Well, no. Abe Lincoln, he was a lawyer and in 1847 in Coles County, Illinois, he defended Robert Matson, who was a slave owner, about a runaway slave. Lincoln said it wasn’t about the feelings, it was about the law. So it’s not lawyers that are the enemy.

So how should we look at it? Guys, here’s how I recommend you look at it. You go and you see a patient and then something bad happens, something you didn’t expect. That patient then goes to an attorney, the attorney then gets a request for records and then they send a certified letter to you, and it’s on. Once you get a certified letter, closure takes two or three years. It’s not a fast process at all and being sued can be very difficult.

You have to understand that angry patients sue. Angry patients are the real trigger point; the medical records are a real trigger point. Preventing something bad from happening while you practice medicine should really be a standard and what we all strive for. Now, angry patients sue. I’ve never heard of someone going, “Oh my gosh I love him, he’s such a good practitioner. He’s taken such good care of my mom and I feel horrible about this but I want to sue him.”

No, they’re angry and something bad happened. The attorney is going to do a request for records if they feel it’s a big payday and then that record itself is going to determine if you get a certified letter. Therefore, excellent medicine is what we always shoot for. We really can’t control if something bad happens a lot of the time, and we really can’t control the financial reward if something bad happens, but we can absolutely control two things.

We can control the enemy because the enemy is our chart, our documentation. You should look at the chart as the enemy you have to proactively fight against. To know yourself, you have to ask consistently, are you pissing off patients, are you upsetting patients, are you making patients angry? There is a very good correlation between angry patients and lawsuits.

Are you pissing patients off? Do you have cognitive biases? What’s your TLC score?

Cognitive Biases

Now, what are the major cognitive biases? Cognitive biases are a talk that gets very profound, very outside of medicine. It started at the Harvard Business School, and it’s talked about whenever there’s an airline crash or something dramatic happens. They look at the cognitive biases that altered the decisions.

The big one I see in medicine is attribution error. That’s when some attribute of the patient changes how you think. It could be Cyert-satisficing, which means you look for the initial answer that satisfies your needs and don’t go deeper than that. Anchoring triage-queuing is where we get anchored on something like, “hey, the patient’s got a cold” or “the patient’s always here for hydrocodone.” We get anchored that way, or triage-queuing. If you have someone with a cough, they go to the fast-track and might be a very superficial workup but if it goes to an acute care bed, they get the full court press. Post-year probability meaning you rely too much on what happened in the past to determine what happens today. Verticle thinking diagnostic momentum means you have a diagnosis that’s kind of given to you, whether it’s at the patient’s sign out or if a physician has on the chart anemia chronic disease. Well, you may not even question it, you may have diagnostic momentum.

Framing: how something is said and by whom it’s said may change how you think. Premature closure’s where you make up your mind too quickly and don’t take in new data. Availability means giving content that’s very available to your brain more weight than it’s really due. That could be something that proximally happened, like if last week you had a cauda equina syndrome, the back pain today’s going to make you think cauda equina syndrome. If you had something that was very intense like a lawsuit, you’re going to be prone to giving that more weight. Confirmation bias is cognitive cherry picking. It’s where we already made up our mind on what we want and that we discount information that steers away from that.

The last one is what I call the IE ratio mismatch, and that’s the intelligence to ego ratio. You have to keep them all in balance. If you’re really intelligent and have a really high ego, you’ll be fine. If you’re really low intelligence and low ego, you’ll be fine. If your ego is higher than your intelligence, you take on more than you should and that causes all sorts of problems. What I’m saying here is not all-inclusive; it’s just a catalyst for thought, you have to know how you think. This body of information has changed my life once I got a deep understanding of what they all mean. I do a lecture nationally on cognitive biases and medical errors. I’ve done it twice at the APA and I’ll do it this year at the North Carolina Academy of Physicians Assistants. This is unbelievably powerful to help you not just in medicine but in your life.

TLC Score

The TLC score is a scoring system we developed for looking at people trying not to get sued. They get scored by a nurse who comes into the room and watches what they do. They look at their tone, likeability and communication, and you get a score. So what does that mean?


Are you expressing an empathetic tone or a dominant tone? Empathy is the ability to understand and share the feelings of another. Dominance is power and influence over another, and ladies and gentlemen, that is the key. If you’re talking from a position of dominance, nobody likes that. Patients won’t tolerate that; it angers them. Talking from a position of empathy completely changes the interaction.

There was a study done at Stanford about tone of voice. They looked at surgeons’ tone of voice and evaluated them based on two ten-second clips extracted from each surgeon’s first and the last interactions with two different groups of patients. Half of the surgeons was never sued; the other half were sued twice or more. The researchers wanted to see what the difference was between the two of them.

In this study, they just looked at the tone of voice. They listened to these ten-second clips and you could have an idea by their tone that either they’re empathetic or dominant. You say, “oh, that one’s dominant.” It turned out, that particular surgeon was in the group that got sued more often. Their conclusion was that tone of voice is associated with their history of medical malpractice claims. This was the first study to show a clear association between communication and malpractice.

They’ve linked the surgeon’s tone to medical malpractice claims, and I think it has to do with the psychology behind the tones. If you think you’re the doctor and the patient is going to do what you tell them, because you’re in charge, you’re dominant over them. Patients don’t like that. If you’re empathetic and caring, that increases how much they bond with you.

There’s a book called “Subliminal,” and it’s a powerful book that looks at what’s called this visual dominance ratio. This may be a little bit confusing, but let me walk you through it. You take the percentage of time that you gaze at a patient while speaking and divide it by the percentage of time that you gaze at them while you’re listening. So, if you gaze directly at them 30% of the time while you’re speaking, and you listen and stare at them 30% of the time, your ratio is 1.0. This reflects your position and social dominance hierarchy, relative to the conversational partner. It’s found in a number of different mammals. If your ratio is really high, that says I’m more dominant than you. If it’s really low, it shows you’re more dominant.

For example, if you’re talking to the boss, you will look at the person while you’re speaking for longer periods of time than you will when you’re listening, therefore your ratio will be greater than one. If while I’m speaking I stare at you 40 percent of the time, while I’m listening I stare at you about 30 percent of the time, so 40 divided by 30 is a ratio of greater than 1.0. Greater than 1.0 says I’m more important than you are. What does all that mean? If you want to have a high TLC score, you need to keep your eyes focused on them while you’re listening. While they’re talking to you, you look right at them and listen and nod your head and furrow your brow. Keep your eyes focused while listening, and I’m declaring myself as equal and thus more empathetic. It gives you massive dividends with your likeability.

To immediately implement empathetic conversations, your tone has to be caring-concerning. Walk into a room and practice this. “My name is John, I’m a physician’s assistant, how can I help you today? What’s going on today?” That’s a very different tone than, “Hey what’s going on? What was your emergency that brought you here today?” Completely different psychologies. Make sure you’re looking at them when they’re talking to you. Look at the patient when they are talking to you and really show them you’re engaged.


Robert Cialdini wrote the book “Influence.” It’s a powerful book and I highly recommend it. I had the privilege of going to one of his conferences and actually meeting him. He’s got six major triggers of influence, the R-class: reciprocity, consistency, authority, likeability, social validation and scarcity. There are five components of being really likable and the mnemonic is CASTA.

C is compliments. Give your patients compliments as often as you can. “Oh my gosh you gave your kid Pedialyte? That’s fantastic, I wish all my parents would do that.”

A is attractive. If you are attractive, the other person thinks you’re attractive, the studies show that they will like you better.

S is similarity. If you have something in common with your patient you should highlight that. You should highlight it because they will like you more.

T is team. I love this one working in the emergency room because why are patients normally upset? Well, the two most common, based on Press Ganey data, is poor quality communication and time delays. High-quality communication, that takes practice and skillsets, that’s why some of the best PA students I’ve ever worked with were waitresses before they got into PA school.

A lot of times you can’t control time delays, but when I go into a room and someone’s really angry, I just kind of say, “Man, I am sorry that you had to wait, and I hate waiting. If I were you I would be just as frustrated, and I’m sorry for the wait, my friend, but I’m here now and I want to take really good care of you. So let’s try to work past that cause I’m going to be here for you and I’m going to take really good care of you.” That little bit of empathy normally gets them down to a low yellow.

A is associations. That’s referred to as the halo effect. You want to be associated with positive things. That’s why it’s really important that you go to your peer review meetings and your QA meetings. Let them see your face and get to know who you are and like you. Be polite, respectful, and then, if you have a bad case people judge you easier. If you’re not liked, how does that play out? Well, if you look at Press Ganey satisfaction scores, if you’re in the bottom third, you have 2.5 times the complaints and two times as many risk management episodes, but you are over 100 percent more likely to have medical malpractice suits. Being liked is wicked important. If you are one of those people who just don’t care if people like you, you’re asking for trouble. You’re going to get booted from your ER group.

In conclusion of part two of our medical malpractice talk, you should ask yourself about your cognitive biases. Ask yourself, how’s your tone, how’s your likability and how’s your communication? Ladies and gentlemen, you can start this today. Have an empathetic tone and look at them while they’re talking.

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