## Abstract

Objective

Medical disputes between physicians and patients can occur in non-negligent circumstances and may even result in compensation. We reviewed medical dispute cases to investigate the impact of miscommunication, especially in non-negligent situations.

Design

Systematic review of medical dispute records was done to identify the presence of the adverse events, the type of medical error, preventability, the perception of miscommunication by patients and the amount of compensation.

Setting

The study was performed in Kyoto, Japan.

Participants

We analyzed 155 medical dispute cases.

Main outcome measures

We compared (i) frequency of miscommunication cases between negligent and non-negligent cases, and (ii) proportions of positive compensation between non-miscommunication and miscommunication cases stratified according to the existence of negligence. Multivariate logistic analysis was conducted to assess the independent factors related to positive compensation.

Results

Approximately 40% of the medical disputes (59/155) did not involve medical error (i.e. non-negligent). In the non-negligent cases, 64.4% (38/59) involved miscommunication, whereas in dispute cases with errors, 21.9% (21/96) involved miscommunications. (P <thinsp;0.01) Although almost at negligent dispute cases were compensated (94/96), the frequency of positive compensation in non-negligent cases was significantly higher if miscommunication was perceived: 78.9% (30/38) with miscommunication and 52.4% (11/21) with non-miscommunication (P < 0.05). The presence of medical error and patients' perception of miscommunication were important predictors of positive compensation (odds ratio: 36.9 and 3.6, respectively.)

Conclusions

Medical disputes can occur without negligence and may have costly consequences. Medical staffs need to understand that not only the ‘presence of medical errors’, but also ‘patients’ perception of miscommunication', especially in cases with a non-negligent adverse event, can cause serious medical disputes. To prevent future disputes or claims, there is a strong need to improve communication between providers and patients or their relatives.

## Introduction

Medical dispute cases reflect detrimental relationships between health-care professionals and care recipients (or families) and can arise for various reasons. Some disputes arise in the absence of either medical injury or demonstrable negligence [1]. In contrast, not all medical errors cause medical disputes or lawsuits [2]. Thus, to reduce medical disputes, as well as working to prevent medical errors, it is necessary to prevent avoidable medical disputes. Recently, Studdert et al. [3] reported that 36.7% of malpractice claims did not involve medical errors. In their report, 72.6% of claims that were not associated with errors did not result in actual compensation. However, this also means that compensation was given in 27.4% of non-erroneous cases.

Although backgrounds and outcomes of medical errors have been well reported, few studies have investigated the managerial and economic impact of medical disputes, especially in non-error cases. As well, the factors resulting in costly consequences in non-error cases have rarely been discussed.

Kagawa-Singer and Kassim-Lakha [4] advocated the importance of reducing the risk of miscommunication to increase the likelihood of improving health outcomes. However, the ‘communication’ factor has also rarely been investigated in medical dispute cases. Furthermore, few investigations on medical malpractice claims in Japan have been conducted since the information related to these claims has been closely guarded [5].

In this study, we analyzed medical dispute cases in Japan: (i) to characterize such cases and to compare medical error and non-error cases, and (ii) to analyze the impact of miscommunication, especially in non-error cases.

## Methods

### Subjects

We obtained medical dispute records from the Kyoto Medical Practitioners' Association. We analyzed 155 consecutive cases that were completely resolved between 1989 and 1998. The members of this association (i.e. clinicians or hospitals) are required to report all cases of medical disputes between hospitals/clinics and patients that cannot be resolved. The association has a Medical Accident Investigating Committee comprising eight physicians and two lawyers. The Committee investigates each of the medical disputes to identify the background, type of error, liability, and preventability of events to determine reasonable compensation. The Committee then discusses the issue with the patient and/or their attorney to arrive at a consensus on the appropriate compensation in each case. A case will go to the court if the mediation is not successfully settled within the organization.

### Definitions of terms

A medical dispute case in this paper is defined as a case that was detrimental to a good relationship between health-care professionals and the care recipient (or family) and that required mediation by a third party. The definition of medical error, consistent with the notion that ‘To err is human’, is defined as a failure to complete a planned action as intended (i.e. error of execution) or the use of a wrong plan to achieve an end (i.e. error of planning) [6]. This type of error may be caused by a slip in attention or memory lapse, or, in the case of a wrong plan, a mistake [7]. In this paper, we equate ‘medical error’ and ‘negligence’.

An adverse event is any deterioration (e.g. injury or death) caused by medical mismanagement rather than the underlying condition of the patient. Prevention of these adverse events was categorized into three groups using the criteria proposed by Leape et al. [8]. An adverse event was classified as ‘preventable’ if it resulted from an error. An adverse event was classified as ‘unpreventable’ if it resulted from a complication that could not be prevented based on the current state of knowledge or due to the natural course of the disease. Unpreventable events are further grouped into foreseeable (e.g. marrow depression following chemotherapy) and unforeseeable (e.g. unknown allergic reaction). An adverse event was classified as potentially preventable if no error was identified. ‘Potentially preventable adverse events’ were in principle considered as unpreventable. However, a high incidence of this type of adverse event can reflect low standards of care or technical expertise, which may be classified as preventable under such circumstances (e.g. wound infection, postoperative bleeding).

### Medical dispute case characteristics

Table 1 demonstrates descriptive statistics for 155 medical dispute cases. Among the 155 cases, 74 involved no injury or just a temporary injury with an eventual complete cure. In 45 cases, patients suffered permanent physical or psychological effects, six had severe after-effects graded as 1 or 2 on the Japanese scale, 13 had moderate after-effects graded 3–6, and 26 had mild after-effects graded 7–14. The remaining 36 patients died as a result of the adverse event. Although the average amount paid was not great ($18 715), a total of$1 384 937 was paid in the 74 cases in which there were no permanent after-effects. The average compensation for severe after-effects was higher than that for death. This might have resulted from the fact that 15 of the 36 fatal cases (41.7%) died as a result of the natural course of their disease or of inevitable complications, which resulted in zero/small amount of compensation.

Table 1

Descriptive statistics of all dispute cases

No. Compensation [US Dollars ($)] Total Average (1) Adverse event Yes 150 96.8 6 027 740 40 185 No 3.2 7 500 1 500 (2) Outcomes Complete recovery 74 47.7 1 384 937 18 715 Mild disability 26 16.8 437 827 16 840 Moderate disability 13 8.4 363 344 27 950 Severe disability 3.9 1 335 000 222 500 Death 36 23.2 2 514 132 69 837 (3) Type of error No 59 38.1 1 147 475 19 449 Yes: slips/lapse 55 35.5 2 027 449 36 863 Yes: mistake 41 26.5 2 860 316 69 764 (4) Preventability of adverse events Preventable 54 34.8 2 921 273 54 098 Potentially preventable 60 38.7 2 306 664 38 444 Unpreventable Foreseeable 12 7.7 423 150 35 263 Unforeseeable 29 18.7 384 153 13 247 (5) Perception of miscommunication Presence 59 38.1 1 368 621 23 197 Absence 96 61.9 4 666 619 48 611 No. Compensation [US Dollars ($)]

Total Average
Yes 150 96.8 6 027 740 40 185
No 3.2 7 500 1 500
(2) Outcomes
Complete recovery 74 47.7 1 384 937 18 715
Mild disability 26 16.8 437 827 16 840
Moderate disability 13 8.4 363 344 27 950
Severe disability 3.9 1 335 000 222 500
Death 36 23.2 2 514 132 69 837
(3) Type of error
No 59 38.1 1 147 475 19 449
Yes: slips/lapse 55 35.5 2 027 449 36 863
Yes: mistake 41 26.5 2 860 316 69 764
Preventable 54 34.8 2 921 273 54 098
Potentially preventable 60 38.7 2 306 664 38 444
Unpreventable
Foreseeable 12 7.7 423 150 35 263
Unforeseeable 29 18.7 384 153 13 247
(5) Perception of miscommunication
Presence 59 38.1 1 368 621 23 197
Absence 96 61.9 4 666 619 48 611

All compensation amounts were converted to US Dollars using $1 = 120 JPY, a rate from March 2007. A total of$4 887 765 was paid in the 96 medical disputes with errors. The average compensation for a mistake ($69 764) was almost twice that for slips/lapses ($36 863). Fifty-nine cases (38.1%) were judged as involving no error, but it required >$1 000 000 in total compensation to resolve the disputes. Compensation was greater in preventable and potentially preventable cases than in unpreventable ones. Fifty-nine patients mentioned ‘miscommunication’ between patient and physician, medical staff, or hospital administrators. These cases included unfavorable physician (or staff) attitudes before the event, insufficiently informed consent, feeling ignored during the procedures, insufficient explanation of the event, and little response after the event. ### Impact of miscommunication Table 2 shows a detailed analysis of outcomes, positive compensation, presence of medical errors (negligence), and claims for miscommunication. Of a total of 96 negligent cases, miscommunication was identified in 21 (21.9%). In contrast, the involvement of miscommunication was significantly frequent in non-negligent cases, 64.4% (38/59) (P < 0.01). Table 2 Number of cases classified by outcomes, compensation, error and miscommunication Medical error No Yes Total % of miscommunication Miscommunication No Yes No Yes In all cases In non-error cases In error cases Outcomes Complete recovery 14 37 14 74 37.8 60.9 27.45 Mild disability 10 12 26 46.2 83.3 14.29 Moderate disability 13 61.5 87.5 20.00 Severe disability – 33.3 100.0 20.00 Death 18 36 25.0 40.0 14.29 Compensation Positive 11 30 73 21 135 37.8 73.2 22.3 Negative 10 20 40.0 44.4 Proportion of positive compensation (%) 52.4 78.9 97.3 100 87.1 Total 21 38 75 21 155 38.1 64.4 21.9 Medical error No Yes Total % of miscommunication Miscommunication No Yes No Yes In all cases In non-error cases In error cases Outcomes Complete recovery 14 37 14 74 37.8 60.9 27.45 Mild disability 10 12 26 46.2 83.3 14.29 Moderate disability 13 61.5 87.5 20.00 Severe disability – 33.3 100.0 20.00 Death 18 36 25.0 40.0 14.29 Compensation Positive 11 30 73 21 135 37.8 73.2 22.3 Negative 10 20 40.0 44.4 Proportion of positive compensation (%) 52.4 78.9 97.3 100 87.1 Total 21 38 75 21 155 38.1 64.4 21.9 In terms of compensation, most negligent cases resulted in positive compensation regardless of the presence of miscommunication; 100% (21/21) with miscommunication and 97.3% (73/75) with non-miscommunication. In non-negligent cases, however, the frequency of positive compensation was significantly higher in miscommunication cases; 78.9% (30/38) with miscommunication and 52.4% (11/21) without miscommunication (P < 0.05). The frequency of claims for miscommunication in non-negligent cases was high in those leading to a complete recovery or permanent disabilities (mild, moderate or severe). Average compensation was also high in these cases (Table 3). In contrast, the existence of miscommunication seems not to have had a strong impact on the frequency or the average amount of compensation in negligence cases. Table 3 Average amount of compensation in disputes classified by outcomes, error and miscommunication Medical error No Yes Average % of compensation of miscommunication Miscommunication No Yes No Yes In all cases In non-error cases Outcomes Complete recovery$2778 $11 818$26 935 $14 136$18 715 26.2 86.9
Mild disability $1375$19 842 $18 784$5625 $16 839 47.9 98.6 Moderate disability$0 $34 647$9371 $83 333$27 950 89.7 100.0
Severe disability – $2500$278 125 $220 000$222 500 16.7 100.0
Death $52 963$5694 $99 457$71 025 $69 837 9.8 6.7 Total$24 020 $16 923$55 496 $34 551$38 937 22.7 56.0
Medical error No

Yes

Average % of compensation of miscommunication

Miscommunication No Yes No Yes  In all cases In non-error cases
Outcomes
Complete recovery $2778$11 818 $26 935$14 136 $18 715 26.2 86.9 Mild disability$1375 $19 842$18 784 $5625$16 839 47.9 98.6
Moderate disability $0$34 647 $9371$83 333 $27 950 89.7 100.0 Severe disability –$2500 $278 125$220 000 $222 500 16.7 100.0 Death$52 963 $5694$99 457 $71 025$69 837 9.8 6.7
Total $24 020$16 923 $55 496$34 551 $38 937 22.7 56.0 All compensation amounts were converted to US Dollars using$1 = 120 JPY, a rate from March 2007.

### Multivariate analysis

The presence of a medical error was the most important independent factor leading to the compensation; the odds ratio was 36.3 [95% confidence interval (CI): 7.3–180.3]. Patients' retrospective judgment that there was a lack of appropriate communication (i.e. patients' perception of miscommunication) was the second most significant risk factor; the odds ratio for this was 3.6 (95% CI: 1.2–11.2). The area under the ROC curve in this model was 0.844 (95% CI: 0.751–0.936).

## Discussion

The current study showed that approximately 38.1% of the medical disputes studied did not involve medical errors and that 26.5% of all medical dispute cases were not preventable. These findings confirmed that non-negligent adverse events often are involved in medical dispute cases, probably because there are random occurrences where even correct and appropriate practices may result in undesired results. However, patients who have suffered an adverse event need to be compensated regardless of the cause of the incident. A no-fault mechanism for compensation deserves serious consideration, in particular in cases of adverse events without errors [9–12].

In our logistic regression analysis, ‘presence of medical errors’ and ‘miscommunication’ were independent factors related to compensation. Medical disputes frequently occur because of poor doctor–patient relationships, insufficient explanations, or miscommunication [13–15]. However, retrospective claims by patients may include an information bias. However, it is difficult to judge whether patients have understood the notion of ‘adequate’ informed consent.

Our cohort demonstrated significant difference compared with non-negligent dispute cases in the US in terms of compensation [3]. Although Studdert et al. reported only 23% of such cases that were not associated with errors were compensated, 69.5 % (41/59) of our cohort were positively compensated. Our stratified analysis demonstrated that the existence of miscommunication was significantly associated with higher frequency in compensation (i.e. 78.9 vs. 52.4%) and higher average compensation, especially if patients' outcomes were complete recovery or any type of disability.

The difference may infer that ‘subjective opinions’ regarding miscommunication by patients, even without apparent negligence, may have strong impact resulting in medical disputes and further positive compensation. This result is not a direct indication that Japanese physicians/administrators have poor communication skills, but implies that communication may have a significant role in reducing medical disputes, especially in non-negligent cases.

During the review process, we identified non-error cases had been granted compensation by the Committee for the following reasons: (i) because of the patient or the family's perception of insufficient information sharing, or (ii) to remove the ‘nuisance value’ of the claim. With respect to the first reason, the Medical Accident Investigating Committee of the Kyoto Medical Practitioners' Association awards compensation for adverse events if they judge that patients did not receive sufficient informed consent, regardless of the establishment of the existence of ‘medical errors’ described in the Methods section. In Japan, the violation of a patient's informed consent rights is compensable, especially if there is physical injury [16, 17]. Japanese law might be relatively generous to plaintiffs' claims in such ‘informed consent’ cases. With respect to the second reason, some defendants prefer to dispose of claims quickly with relatively small payments, rather than spend much time, money and effort contesting a claim. This is done on the basis that it is sometimes difficult to prove there were ‘Zero errors’ in adverse events.

Medical staffs need to understand that not only the ‘presence of medical errors’, but also ‘patients' perception of miscommunication' especially in cases with a non-negligent adverse event, can cause serious medical disputes and attract positive compensation. To prevent future disputes or claims, there is a strong need to improve communication between physicians and patients or their relatives.

## Acknowledgement

The authors appreciate the assistance of the Kyoto Medical Practitioners' Association (Director: Dr Hiroshi Seki), Kyoto, Japan, in preparing the comprehensive data for this analysis.

## References

Weiler
P
Hiatt
HH
Newhouse
JP
, et al.  .
A Measure of Malpractice
,
1993
Cambridge, MA
Harvard University Press
Localio
AR
Lawthers
AG
Brennan
TA
, et al.  .
Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III
N Engl J Med
,
1991
, vol.
325
(pg.
245
-
51
)
Studdert
DM
Mello
MM
Gawande
AA
, et al.  .
Claims, errors, and compensation payments in medical malpractice litigation
N Engl J Med
,
2006
, vol.
354
(pg.
2024
-
33
)
Kagawa-Singer
M
Kassim-Lakha
S
A strategy to reduce cross-cultural miscommunication and increase the likelihood of improving health outcomes
,
2003
, vol.
78
(pg.
577
-
87
)
Nakajima
K
Keyes
C
Kuroyanagi
T
, et al.  .
Medical malpractice and legal resolution systems in Japan
JAMA
,
2001
, vol.
285
(pg.
1632
-
40
)
Medicine
Io
To Err is Human
,
2000
Washington, DC
Vincent
CA
The Study of Errors and Accidents in Medicine
,
1993
London
Oxford University Press
Leape
LL
Lawthers
AG
Brennan
TA
, et al.  .
Preventing medical injury
Qrb Qual Rev Bull
,
1993
, vol.
19
(pg.
144
-
9
)
Bernstein
AH
Paying for medical injury: no-fault in Sweden and New Zealand
Hospitals
,
1978
, vol.
52
pg.
42

4, 6
Horwitz
J
Brennan
TA
No-fault compensation for medical injury: a case study
Health Aff
,
1995
, vol.
14
(pg.
164
-
79
)
Johnson
WG
Brennan
TA
Newhouse
JP
, et al.  .
The economic consequences of medical injuries. Implications for a no-fault insurance plan
JAMA
,
1992
, vol.
267
(pg.
2487
-
92
)
Manuel
BM
Sounding board: professional liability: a no-fault solution
N Engl J Med
,
1990
, vol.
322
(pg.
627
-
31
)
Clark
FI
Informed consent in Missouri: where has it taken us?
Mo Med
,
1994
, vol.
91
(pg.
72
-
4
)
Green
JA
Minimizing malpractice risks by role clarification. The confusing transition from tort to contract
Ann Intern Med
,
1988
, vol.
109
(pg.
234
-
41
)
Gutheil
TG
Bursztajn
H
Brodsky
A
Malpractice prevention through the sharing of uncertainty. Informed consent and the therapeutic alliance
N Engl J Med
,
1984
, vol.
311
(pg.
49
-
51
)
Leflar
RB
Informed consent and patients' rights in Japan
Houston Law Rev
,
1996
, vol.
33
(pg.
1
-
112
54–6
Takeda v. State

54(2) Minshu 582 (Sup. Ct. 2000)