Dr. Paul Ryder (University of New South Wales)
and Dr. Themi Garagounis, MBBS., FRACGP
In Australia, and elsewhere, medical practitioners are finding themselves increasingly subject to complaints, processes of investigation, and litigation. While a large body of research signposts the part that indifferent, or otherwise poor, communication plays in prompting patients to complain, little work has been done in considering the history of the doctor-patient relationship and the way that the nature of that historical relationship is projected into the modern medical milieu. This essay traverses the deleterious effects of complaints against practitioners, considers evidence suggesting that communication breakdown is a significant cause of patient dissatisfaction, and interrogates the history of the doctor-patient relationship in terms of power. Leveraging the work of Michel Foucault and John French and Bertram Raven, we suggest that, from the seventeenth century, doctors acquired a unique power that resulted in abstracted and entirely rational practice and discourse — and that this cultural background profoundly informs the asymmetrical and otherwise flawed communication that characterises the work of too many contemporary physicians. Focussing on the complaints end of the medico-legal spectrum (we propose to deal with the effects of litigation elsewhere), the paper argues that in order to address the above, doctors must recognise the unique and deep-seated cultural dynamics that inform both their practice and their interaction with patients. Having foregrounded these dynamics (and their origin), we offer a range of communication and semiotic strategies that speak to the unique nature of the practitioner-patient relationship and that may mitigate the risk of complaint.
Key words: practitioner, complaints, communication, power, strategy, regard.
The frequency of complaints made against general practitioners is rising. While this paper focuses on the experience of Australian doctors, evidence is also drawn from America and the UK suggesting that, in the Western world at least, doctors about whom complaints are made experience a misery that is arguably peculiar to their profession. While Australian data is scattered, the evidence suggests that, as with their overseas counterparts, Australian general practitioners are increasingly exposed to the threat and actuality of complaints and that the consequences of even a minor complaint can be very significant. We observe that many complaints against doctors and their practices have their origin in indifferent, or otherwise poor, communication, and suggest a range of cultural models that may be reflected upon (and several theories of communication that may be martialled) by practitioners to mitigate the risk of such complaints being made in the first place. We set the scene, however, by traversing the deleterious emotional (and other) sequelae of complaints against general practitioners. These include: psychological trauma, the exacerbation of existing physical ailments, the onset of physical illness, alcohol abuse, damage to the doctor’s family unit, inappropriate personal behaviour, and the contemplation of suicide. The paper argues that a fairly predictable pattern of emotional and physical responses may be deduced, culminating in the practice of negative defensive medicine—or in a decision on the part of the practitioner to give up his or her practice.
Focussing on the (formal) complaints end of the medico-legal spectrum (the authors propose to deal with the effects of litigation elsewhere), the paper argues that in order to address the above — along with attendant issues of rising insurance premia and the challenges of recruitment and retention that may be linked to the threat of litigation — doctors need to recognise the unique and deep-seated cultural dynamics that inform the practitioner-patient relationship. Where many studies acknowledge the positive influence of communication training programs on patient satisfaction, none address the evolution of what Foucault (1973) calls the ‘medical gaze’ and the discursive, profoundly asymmetrical practices of communication that inevitably emanate from it. Furthermore, few studies place the tactics that are recommended as part of communication training programmes in the context of communication theory. We suggest that it may also be this failure to locate the problem of poor practitioner communication in an historical mis en scene and against the informing backdrop of academic consideration that may account for the limited impact of practitioner education programmes. Having established the deleterious consequences of patient complaints on practitioners, and having observed that many complaints have their origin in compromised communication, we argue that it is only through an understanding of power dynamics — and an appreciation of the evolution of a particular clinical perspective that places the patient in the position of subject rather than participant — that doctors might reduce the risk of complaints. While observing that such a lessening of risk will see a concomitant reduction in the financial, emotional, physical, clinical, and societal costs endured when complaints are formalised, the present paper focuses on preventing complaints and does not purport to address strategies that may be implemented once complaints are actually made.
Many doctors will recognise in this article’s title the allusion to William Shakespeare’s Othello, in which a deeply dispirited Michael Cassio complains to his associate, the hero’s adjutant Iago, that his reputation has been lost: ‘Reputation, reputation, reputation! Oh, I have/ lost my reputation…’ (Act II, sc. iii, 262-63) In one of his many cynical moments, Iago tells Cassio that ‘reputation is an idle and most false/ imposition; oft got without merit, and lost without/ deserving…’ (Act II, sc. iii, 268-270) He knows, however, that reputation is built up over a lifetime of personal endeavour and careful professional practice. But he is absolutely (in context, ironically) correct when he asserts that reputation may be lost without cause. Later in the play, when an overwrought hero himself makes the same complaint to the same man, for peculiar ends of his own Iago offers a far more sobering response:
“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash; ’tis something, nothing;
‘Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.”
(Act III, sc. iii, 155-161)
The three aims of this article are as follows: to review recent Australian and international research on the effects of complaints made against medical practitioners, to consider the extent to which failures of communication inform these complaints, and to suggest how practitioners might reflect on cultural, communication, and semiotic theory and (with such in mind) practically mobilise certain theoretical principles in order that the risk of complaints being made against them might be mitigated. In addressing these aims, we place our research in a broader academic context that stretches back to the 1960s. Collectively, this research — largely from America, partially from the United Kingdom, and also from Australia itself — canvasses the profoundly deleterious effects of complaints and litigation against specialists and general practitioners. We focus, particularly, on the complaints end of the medico-legal spectrum, highlighting research that shows the complaint to be at least as damaging as any ensuing court case. To this end, we consider the notion of reputation and doctors’ indubitable sensitivity to any questioning of it. (Charles, 2001; Gabbard, 1985; Nash et al., 2004) Regardless of its legitimacy, among the deleterious effects of a complaint against a medical practitioner is the impact on the doctor’s sense of professional standing among his or her colleagues and among members of his or her broader community. Although the research canvassed shows that some doctors who are subject to complaints and ensuing legal processes seem to come through relatively unscathed, the fact remains that these uncommonly robust individuals are in a distinct minority and that perceived attacks on reputation most often result in a predictable pattern of responses ranging from disbelief to despair.
While the strategic and tactical communication and semiotic practices that may be mobilised so that a doctor might protect and defend his or her good name are the focus of the second half of this paper, we begin by observing that the most valuable asset possessed by a medical practitioner (or any businessperson or service provider, for that matter) is his or her reputation. A significant body of literature suggests that reputation is ‘capital’ of sorts that may be accumulated and ‘exchanged’ for social and/or professional standing. For example, Klewes & Wreschniok (2009) argue that reputation is ‘best be understood as the sum of the expectations that the public places on the future behaviour of an agent or institution…[and that] ‘expectations, if fulfilled, … can crystallise into reputational capital.’ (p.3) In their article Intellectual capital literature review: Measurement, reporting and management, Richard Petty and James Guthrie observe that reputation is one of those ‘intangible items’ that should ‘form part of a company’s intellectual capital,’ (p. 156) While valuable and intangible, then, reputation is also a professional’s most vulnerable asset, and any attack on it (substantive or otherwise) may seriously jeopardise one’s standing among one’s peers and in the community more generally. It follows that a complaint may seriously compromise one’s ability to earn an income. In considering the threat of litigation endured by American doctors, Majorie Thomas et al. (2009) make the following observation: ‘[i]t is not the probability [of being sued] with which the physician lives, but the daily worry that cuts to the core of who he or she is. Many related concerns flood the physician’s mind, not the least of which is how an allegation of improper care will affect his or her standing in the community.’ (p.17)
In Australia, whose system of healthcare is arguably following the American model, doctors operate in an increasingly litigious environment in which, according to recent research, up to sixty-five percent of medical practitioners have been (or are) involved in medico-legal issues. (Nash, et al., 2009) This study, carried out in cooperation with Avant Mutual Group Ltd, indicates that the involvement of doctors in medico-legal matters is a cause of substantial, and growing, concern. While Nash et al. observe that ‘doctors overestimate the likelihood of being sued’, when extrapolated, the data offered nonetheless convincingly suggests that medical professionals have every reason to be apprehensive about becoming involved in the earlier phases of the medico-legal process—especially the formal complaint and investigative elements of it. (p.440)
Earlier Australian research—for example, a 2007 article published in Australian Doctor—notes that each year one in twenty general practitioners is the subject of a formal written complaint. In this research, author Dr Sara Bird observes that while few of these complaints result in disciplinary action, even the threat of a claim or complaint is a ‘severe source of stress for GPs’. (“Medicolegal survival skills”) Bird goes on to point out that ‘the most experienced and competent GPs can become involved in medical negligence claims and complaints, and that these can occur at any stage in a GP’s career.’ (ibid.) Bird also observes that clinical competence is not generally the issue and that ‘communication and systems failures are a major contributing factor.’ (ibid.) In her essay “High anxiety” (2009), Christina Anastasopoulous cites the above research by Nash et al., adding that, nationally, the frequency of complaints to complaints bodies against Australian GPs tripled between 2003 and 2008. More anecdotally, in 2003 Australian Doctor published an article that followed the decision of Canberra GP Dr Kerrie Nogrady to retire early. The author of that article quotes Dr Nogrady who, following her early retirement at fifty-five years of age, spoke of the trauma associated with an expectation that, as a GP, one might expect to be sued at least once (“Driven to retirement”).
While we place the above Australian studies in the context of international research and, therefore, in the context of a broader set of findings regarding the impacts of medico-legal processes on doctors, for the moment we note that the above study by Nash et al. draws several important conclusions among which is that ‘[c]learly, the longer someone practises medicine, the more likely it is that he or she will eventually be involved in a medico-legal matter.’ (p.437) It is observed in the same paper that the most common types of medico-legal matter reported by respondents were claims for compensation and complaints to the Health Care Complaints Commission (HCCC). Thirty percent of the doctors surveyed by Nash et al. (2009) have experienced such claims. The research also draws comparisons with an American study that foundeighty-six percent of interventional specialist doctors in the United States have been named in a malpractice suit. As Nash et al. point out, this represents ‘the extreme in medico-legal action’ but the rising number of complaints and lawsuits against Australian doctors is of real concern. Even more so are the effects of these complaints on practitioners’ psychology and physical health. (ibid.)
The effects of complaints
In focussing on the psychological impact of complaints and negligence suits on doctors, an earlier study by Nash, Tennant, and Walton (2004) made a preliminary attempt to contextualise the experience of Australian doctors in terms of international research. While not purporting to offer anything approaching a comprehensive survey, the authors conclude that ‘beyond the eventual medical and financial outcome [of complaints], there remain ongoing psychological sequelae for patients and doctors.’ (p.278) The authors furthercite a 1992 qualitative study of Oregon doctors by Christansen, Levinson, and Dunn in which respondents consider ‘the significant emotional distress on the physician’ as being a major effect of the making of clinical errors (ibid. p. 280). Also referenced hereis a qualitative study by M. C. Newman (1996) which sought information from doctors regarding the emotional impact of mistakes. Among the emotions experienced, fifty percent of respondents cited fear as a significant stressor. Other nominated stressors included self-doubt, disappointment, self-blame, and feelings of shame. (ibid.) As is observed in numerous studies, these emotional states broadly parallel the emotional outcomes experienced by practitioners about whom a complaint is made. Doctors are unusually sensitive to accusations of failure, and Nash et al (2004) note that ‘[t]heir sense of professional identity is at stake and the threat of damage to reputation can be devastating.’ (p.281)
In 1999 Jain and Ogden undertook a qualitative study of general practitioners’ experiences of patients’ complaints. Participants described their experiences of complaints in three stages: initial impact (characterised by shock, panic, and a feeling of powerlessness); conflict (characterised by feelings of anger and depression, the onset of doubts about one’s professional capacity and clinical competence, and conflicts within one’s family); and resolution (characterised by practicing in a defensive manner, and by the practitioner planning to leave general practice). This research finds that only a small minority considered the complaint and the process surrounding it a learning experience. Among the more disconcerting findings of the research is that ‘[g]eneral practitioners find patients’ complaints … interfer[e] with their working and personal lives.’ (p.1596) A particularly sobering feature of the research is the recording of the emotional state of the doctors about whom complaints were made. One doctor recalls feeling incensed:
“I just felt very angry, very angry … I was so angry it probably took me about a week to recover from the anger … you spend the whole weekend brooding over it.” (p.1597)
Referring to the drawn out nature of medico-legal procedures, another said:
‘For those two years life was difficult… I used to wake up in the early hours of the morning thinking about it, and sometimes even considered suicide in those early hours…’ (p.1598)
The research also observes that the potential effects of a complaint on family life can be dire. One doctor noted:
‘the initial complaint and its effect on my confidence and home life had an indirect bearing on the breakdown of my marriage.’ (ibid.)
The researchers further observe that some participants simply offered a more limited service, while others practiced by rote and by rule. While the research also points to a growing desire for affected doctors to leave the profession, the most typical response was for practitioners to stop practicing medicine in an intuitive sense:
‘It has changed my kind of practice from the best I could do for my patients to becoming much more defensive and referring more things for investigation or for [a] consultant’s opinion, quite knowingly inappropriately…. simply because I’m being careful to avoid possible future complaints if I can.’ (p.1599)
Among the above paper’s key messages are that complaints against general practitioners are becoming more common, are profoundly deleterious, and that only a small minority of practitioners against whom complaints have been made found the complaints process to be a learning experience. It concludes that, for many of the participants, there was no positive resolution to the complaint or the resultant processes. Describing the fallout from his patient’s complaint as being ‘like divorce’ (a characteristically bitter experience that can never be entirely erased from one’s consciousness), the contribution of one doctor seems to summarise the general feeling of many of his colleagues about whom a complaint had been made. (1599). A broad range of scholarly material reinforces the themes of the above studies. As Marjorie Thomas et al. (2009) put it:
“At a time when we face a shortage of physicians, many experienced physicians are leaving medicine earlier than they had planned or are restricting their practices to exclude high-risk patients.’ (p.3)
As suggested above, such avoidance of high-risk patients and the practicing of defensive, ultra-conservative, high-intervention medicine arguably means that these doctors are no longer ‘practicing’ medicine at all. .
In further considering the practice of ‘defensive medicine’, it is germane to observe that the term means quite different things to medical practitioners and to economists. To the latter, care that outstrips expected benefits is excessive and defensive, whereas to practitioners, practicing defensively means being over-cautious. Sloan and Shadle (2008) argue that slippage between the two meanings may account for distortion in the outcomes of research on defensive medicine. Referring to a 2005 study by Studdert et al., Sloan and Shadle argue that the provision of additional care where only low marginal benefits might be gained and the withdrawal of care due to the threat of lawsuits are both widespread practices. (p. 482) What is less clear is the quantum of these respective practices, and while Sloan and Shadle’s own research suggests that the threat of malpractice litigation may not materially affect physician behaviour, the authors do note some significant limitations of their work. Moreover, they observe that while a much-quoted empirical study by Kessler and McClellan (1996) suggested that reform to tort law can reduce the practice of defensive medicine (as defined by economists), a later study by the same researchers (2002) concludes that the threat of medical malpractice suits has more of an effect on diagnostic than on therapeutic decisions. (p. 490) Sloan and Shadle also note that Baiker et al. (2007) find that ‘growth in medical malpractice payments in a state…was highly associated with growth in imaging.’ (ibid.)
While the effects of complaints or litigation on a doctor’s clinical practice appear to be significant then, in Practicing Medicine in Difficult Times: Protecting Physicians from Malpractice Litigation, Marjorie Thomas et al. (2009) point to a harm of equal magnitude: the emotional toll of complaints, censure, or litigation. ‘After you are sued’, the authors write, ‘a traumatic event has occurred that will extract a price from you even if you “win” the case. The emotional toll of being sued for malpractice is high even for those with nerves of steel. … The average time between the occurrence of the injury and the closure of the claim is five years. This is a very long time to live with the stress of an unresolved lawsuit on your mind.’ (p.12) In “Counting the cost”, Nicole Mackee (2006) traces the personal cost of even unsuccessful litigation. Mackee refers to the trauma experienced by Australian doctors Heise and King. Following his trial (in which he was acquitted) and an appeal (which was dismissed) the former noted a ‘drift away’ from him at his practice and that ‘some patients suddenly disappeared’. (ibid.) Six years after his trial, Dr Heise reported practicing more defensively, arguing that his job was ‘too dangerous’. But, at fifty years of age, the doctor considered his alternatives to be few and so continued to practice — though never with the same sense of total satisfaction. (ibid).
As suggested in the introduction to this paper, the authors contend that the probability of being involved in a medico-legal issue (certainly at the level of complaint) in Australia is high and rising. Presently, this reality (which echoes the experience of doctors in the UK and in America) is being projected into the professional domain by a medical indemnity insurance industry that, not unreasonably, anticipates rising premia. In the October 2010 issue of the MIGA Bulletin which, incidentally, references the 2009 study by Nash et al., the following headline appears: ‘What happens when you receive a complaint or notification from AHPRA.’ (p.3) The lead-out text states: ‘It is an unfortunate reality of modern medical practice that you may be the subject of a complaint by a patient or third party.’ (ibid.) While the lead-out is a little more cautious, then, the authors observe the ‘not if, but when’ assertion in the headline. Elsewhere in the publication, the insurers record that they have witnessed ‘a steady increase in the number of these [medico-legal] matters in the last [three] years.’ (p.6) Yet, Australian insurers have been aware of this issue for at least a decade. In the Medico-Legal Handbook: A guide to legal issues in medical practice (2003), Australian insurer United Medical Protection (now Avant), writes that ‘the threat of being sued or receiving a complaint has become an inescapable reality for all who practice medicine.’ (p.133) ‘Even medical practitioners recognised as the best in their field can be subject to a complaint,’ they add. (ibid.)
Returning, now, to the impact of complaints made against medical practitioners, in our introduction we broadly canvas the findings of Nash et al. (2004) who observe that, for doctors, ‘the threat and actuality of a complaint or law suit can cause emotional and physical disequilibrium…’. (p.281) Doctors who have complaints made against them endure a range of debilitating maladies including depression, anxiety, somatic conditions, insomnia, and alcohol-related issues. These we shortly discuss in more detail, but it is important to first expand on a point made earlier: that, as a group, medical practitioners are especially sensitive to criticism and ‘have personality traits that make them vulnerable to the adverse effects of stress’. (Breen et al. 2010) While Breen et al. point out that these same traits ironically make doctors ‘more empathic,’ they also predispose them to burnout. (171) Breen et al. argue that because most doctors are ill equipped for a change in career (or are emotionally or financially committed to medical practice), those experiencing stress ‘exhibit maladaptive coping mechanisms such as narcotic and alcohol abuse, extramarital affairs, or sexual misconduct with patients.’ (ibid.)
The Australian medical insurance industry itself acknowledges the deleterious effects of complaints made against doctors. The Medico-Legal Handbook (2003) has this to say: ‘When a practitioner becomes the subject of a complaint or claim, common reactions include doubt, excessive self-scrutiny, guilt, and shame, and even self-condemnation, depression, and thoughts of suicide.’ (p.133) The handbook goes on to note that ‘[s]ome practitioners’ first reaction is to quit medicine’. (ibid.) The handbook also observes that ‘studies reveal that practitioners generally experience the event in one of a variety of ways’ including ‘betrayal and anger’, ‘greater anxiety about decisions and overreaction to the stress of ordinary practice – especially when the complaint directly challenges the practitioner’s feelings of competence’, and ‘irritation and frustration’. (ibid.) While the more recent studies cited above clearly point to a range of debilitating emotional maladies endured by doctors about whom a complaint is made (or who face — or are in the midst of — litigation), much earlier studies identify this issue. For example, a 1984 paper published in the American Journal of Psychiatry argues that affected medical professionals experience emotions ranging from anger to ‘feelings of devastation’. (Charles et al., p.563) The same study observes that affected doctors experienced symptoms falling into two broad groupings: the first associated with clinical depression, and the second characterised by feelings of overwhelming anger and frustration. (p.564) Charles et al. assert that doctors who experienced clinical depression reported insomnia, loss of appetite, loss of energy, decreased libido, and, in some instances, thoughts of suicide. In addition to their feelings of anger and frustration, the second grouping of doctors identified maladies including irritability, headache, inner tension, gastro-intestinal distress, and insomnia. (ibid.) The study also points to a smaller cluster of doctors who experienced the onset of a physical illness or the exacerbation of a previously diagnosed one. In the most severe of cases, doctors drank excessively, abused drugs, or contemplated suicide. (ibid).
Communication as a source of complaints
That complaints have serious consequences for practitioners has been established, but what are the sources of these? Surprisingly, as noted by Bird, above, rather than being grounded in issues of clinical competence, many complaints have their genesis in failures of communication and systems. As we ourselves observe, and as Trumble et al. (2006) assert, practitioner registration boards and the medical indemnity insurance industry have long recognised that deficits in doctors’ communication skills are a significant source of complaints. In terms of academic investigation on the matter, Beckman et al. (1994) find that seventy percent of litigation has its foundation in poor communication while Ong et. al (1995) note a link between patient satisfaction and practitioners’ capacity to communicate. Levinson et al. (1997) observe that patients express their dissatisfaction with doctors’ communication abilities by complaining or instigating litigation. This is a finding supported by Hickson et al. (2002), White et al. (2005), Saravanan et al. (2007), and Barry Egener (2008) who bluntly argues that ‘deficient physician communication skills…lead to complaints by patients and colleagues’ (p. 1890) The research by Saravanan et al. (2007) focuses on the complaints of surgical patients, but interesting here is that for both inpatient and outpatient research cohorts, communication problems rank third — not far behind complaints about delays and administration.
While the above literature is representative of that identifying poor communication as a major source of patient complaints against clinicians, there is a similarly significant body of research arguing that communication-training programs might do much to reduce the risk of these (Kim et al. 2004; Moore et al. 2000; Saravanan et al 2007; Scheeres et al. 2008; Trumble et al. 2006). Australian-based research by Trumble et al. (2006) examines changes in patient satisfaction after doctors have attended a medical intervention workshop in medico-legal risk management. Among the findings is that effective listening, the sending of cues that signpost empathy, the use of certain vocabulary features, and the offering of particular paralinguistic information, have positive effects on patient perception of practitioners. While we later identify these tactics and place them in the context of communication and semiotic theory (part of our argument is that doctors should be conscious of such), it is here germane to observe that, following educational intervention, the above research showed an increase in patient satisfaction with doctors’ communication. In particular, the researchers observe a significant increase in terms of clinicians’ capacity to meet the expectations of their patients. It is important to note, however, that while the research shows satisfaction levels to have improved, the ‘actual percentage increases in complete patient satisfaction are relatively small.’ (p.305) While the authors did not assess pre and post workshop rates of complaint or litigation, the modest increases in satisfaction wrought by this intervention suggests that more work needs to be done in terms of shaping intervention programs.
Nonetheless, in her paper Can communication skills workshops for emergency department doctors improve patient satisfaction? Fei Lau (2000) observes that complaints against doctors might be reduced if physicians attend communication skills training courses. As for Fei Lau, research by Scheeres et al. (2008) focuses on communication in the context of emergency departments (EDs). Although offering an environment very different from than that of the general practitioner’s consulting room, the conclusion that poor communication in EDs results in critical incidents, patient harm, and (by implication) complaints, suggests that such studies remain relevant. Interestingly, one of the education implications identified in the study by Scheeres et al. is that ‘training could explore ways in which clinicians can emancipate themselves from their organisational settings by taking more time with patients.’ (p.19) This is a theme that we develop immediately below — although in the particular (and even more crucial) sense of clinicians emancipating themselves from an inherited, and deeply institutionalised, perspective on the body that indubitably informs every aspect of the patient-practitioner relationship, communication included.
Theories of culture and communication
Picking up on — and developing — notions of power proposed by French and Raven (1959), in 1963 French philosopher Michel Foucault (himself the son of a doctor) published The Birth of the Clinic. Like his Folie et Déraison: Historie de la folie à l’âge classique (History of Madness, 1961), The Birth of the Clinic is largely an archaeology of (medial) science but it foreshadows a very significant development in Foucault’s thought. While hinted at in the earlier book, The Birth of the Clinic comprehensively considers the phenomenon of what, in French, Foucault calls ‘regard’ or ‘the medical/observing gaze’: an injurious process of examination by which a patient’s body becomes an object detached from the patient’s essential self or person. Foucault’s argument is that this process of objectification positions the body in a field of power that renders it susceptible to various degrees of (legitimised) abuse. Privileging, as it does, the part over the whole, Foucault’s point is that this (practised and re-practised) perspective invests and inscribes in the figure of the physician a particular mode of detached power. While objectifying and dehumanising the subject, the implication is that the medical gaze also dehumanises the physician.
In the introduction to The Birth of the Clinic, having considered the recorded treatment of an hysteric towards the middle of the eighteenth century, Foucault details the far more ‘reductive’ language of a physician practicing less than one hundred later. (xi) Foucault’s point is that while, between the eighteenth and nineteenth centuries, there is no substantive difference in medical perspective itself (both physicians categorise and linguistically dissect components of the body) there is a substantive difference in the intensity of regard and in the language used to describe and qualify the process of examination. Foucault argues that during the intervening century, metaphor (and an, albeit scant, acknowledgement of the patient) gave way to ‘rational discourse’: the result of ‘a rather more meticulous gaze’. (ibid.) The resultant language betrays ‘a more measured verbal tread with a more secure footing upon things, a more delicate, though sometimes rather confused choice of adjective’: a new style of medical language. (ibid.) Pointing to this ‘mutation in discourse,’ Foucault sees regard as having evolved into something self-reflexive, self-supporting, and self-justifying. (xii) Ultimately, he argues, the gaze is not reductive at all simply because it has finally ‘mastered’ the body — reducing it to its irreducible essence, making possible the organisation of a rational language around it. According to Foucault, medical science thus lifted the old Aristotelian prohibition in that ‘one could at last hold a scientifically structured discourse about an individual’. (xiv) Progressively and inevitably, as the language of rationality took hold though the later eighteenth century, the physician took an increasingly detached view of the body, rhetorically ‘separating’ from the patient his or her internal structures so that these might be freed to his gaze. As observed above, this amounts to an act of violence upon the patient ‘and not only [upon] the patient; [but upon] the doctor too.’ (ibid. p. 8)
Foucault further argues that the ability to gaze in this way came not so much from academic instruction (although that undoubtedly contributes), but from intensive internships and apprenticeships in which the gaze might be rehearsed — putting beyond question the doctor’s extraordinary experience and wisdom. In some senses, this seems to anticipate Pierre Bourdieu’s observation that elite systems of education bestow ‘a consecration that…lends the school its more or less complete autonomy with respect to worldly demands.’ (1996 : 294) It also anticipates an important argument in Foucault’s grim opus, Discipline and Punish (1977 ) in which Foucault observes that discipline proceeds from the distribution of individuals in space; a distribution sometime requiring enclosure. He references the French collèges (secondary schools), the military barracks, and the factory: all places of regimentation and training. (pp. 141-142) To the list he finally adds the hospital as a variant of Bentham’s panopticon: one of several spaces in which ‘instruments and modes of…power…can be implemented’ (p.205). The teaching hospital is an excellent example since ‘interns’ were (and remain) semi-confined: trained in the art of regard while being observed, examined, and disciplined. All this, we argue, informs the rational and, all-too-often, aloof practice of the modern clinician.
Returning to regard as such, in addition to a developing nosology (or system of classification and description of diseases), through the period of the Enlightenment and beyond, systems of instruction and practices of repeated examination (of both the patient and the doctor) laid bare the secrets of the body and became glorified as a sign of collective clinical wisdom and the individual clinician’s capacity to ‘penetrate’. Foucault puts it thus:
‘What now constituted the unity of the medical gaze was not the circle of knowledge in which it was achieved but that open, infinite, moving totality, ceaselessly displaced and enriched by time, whose course it began but would never be able to stop — by this time a clinical recording of the infinite, variable series of events. But its support was not the perception of the patient in his singularity, but a collective consciousness, with all the information that intersects in it, growing in a complex, ever-proliferating way until it finally achieves the dimensions of a history, a geography, a state. (1973: 29)
Connected to this notion that the medical gaze became a unified, self-sustaining phenomenon, earlier in The Birth of the Clinic, Foucault writes of regard as a totalising perspective — not in the sense that it acknowledges the person who is subject to it, but in the sense that the gaze has become attentive to all of the subtle modulations necessary to diagnosis. This knowing of the body — this capacity to identify, separate, and categorise — has given rise to a paradox informing the psyche of the modern clinician: ‘[i]f one wishes to know the illness…one must subtract the individual …’ (14) Compounding this profound clinical détachment was the rise, through the second half of the seventeenth century, of the clinic itself, which supported, further justified, and legitimised the doctor — permitting him to gaze on that which was not self-evident: the naked body. Furthermore, as a result of repeated processes of examination, the physician was able to deal in probability, chance, and risk. So, further to its powers of unfettered and intensive penetration (and to its character as strictly rational, with a vocabulary to match), through the clinic the gaze became ‘calculating’ (89)
As it evolved through the eighteenth century, moreover, Foucault argues that the clinic became a place of near God-like insight wherein regard might reveal hidden truths about the corporeal being.Through the use of induction (which depended upon a growing body of medical texts and upon repetitive processes of examination), the doctor could leverage a vast knowledge and make the unknown known. This was a radical departure from the medicine practiced by Hippocrates (who, eschewing all systems, confined himself strictly to observation) and marked the clinic as a place of privilege and perception. In the seventh chapter of The Birth of the Clinic Foucault defines the character of that perception. Regard is silent and utterly ‘immediate’, but behind it is the strength of theory and, in particular, the compound experience of previous examination going back at least four hundred years. The medical gaze, then, belies a profound reserve: as Foucault argues, it is ‘a perceptual act sustained by a logic of operations’ (109). It is little wonder, therefore, that the doctor came to be regarded as God-like, and the clinic as a site of arcane intuition.
As noted at the beginning of this section, the progenitors of Foucaultian thought on the inscription and promulgation of power were John French and Bertram Raven. In 1959 French and Raven developed a model highlighting five types of power: positional (legitimate), referent, expert, reward, and coercive. Fundamentally informing the practitioner-patient relationship are positional and expert forms of power. A doctor’s legitimacy is a function of his or her professional position while expert power is founded on a specialised knowledge of the body enshrined in the formality of tertiary qualifications and in the ‘aura’ of practice and experience. In tracing the rise of the clinic (and in suggesting how it was that the clinician came to be a revered occupant of it), Foucault seems to tap into these modalities which, when reflected upon, offer an insight into the historical position of the doctor vis-à-vis the patient.
We argue that an understanding of the history of clinical practice and the modes of power that are invested in it is fundamental to understanding the doctor-patient relationship, and to appreciating the communicative dynamics of that relationship. While Foucault does not address the latter, his work implies that the modern practitioner-patient relationship is one in which the patient defers to the doctor and in which the doctor operates in the context of a four-hundred-year cultural hangover. French and Raven’s discussion of positional and expert power intersects perfectly with the power of the physician as cast by Foucault and we argue that it is precisely positional and expert power that may cause a doctor to be dismissive or aloof (by which we mean the entire process of regard as discussed above) and the patient to be deferential. We further argue that the weight of history (that is, the history of the clinic and the clinician) and the discursive nature of positional and referent power act as brakes on the dialogic communication that is necessary for better doctor-patient relationships, diagnoses, and treatment.
Despite the fact that so much research identifies poor communication as a source of complaints against clinicians, medical school curricula place less than sufficient emphasis on this issue. It is almost axiomatic that doctors are repositories of remarkably esoteric knowledge, but communicating this to patients requires a deft approach. There can be little doubt that the rising number of complaints made against general practitioners is a clear sign that doctors themselves are increasingly, and ironically, subject to processes of examination. As Foucault (1977) argues, ‘[t]he judges of normality are present everywhere’; we are all under a universal, judgmental, normative gaze. (p.304) Along with everyone else, he posits, and by all those with an interest, ‘doctors are judged in terms of body, attitudes, practices, aptitudes, and achievements’. (ibid.) While students of communication quickly learn of the benefits of two-way symmetrical and two-way asymmetrical communication practices, it is ironic that doctors, who arguably need it more, do not learn enough about the fundamentals of dialogic communication—an approach that has its foundation in Greco-Roman theories of rhetoric. Caught now, between worlds wherein the patient revered, in an exaggerated way, the expertise of the doctor, and one in which the patient now regularly questions the authority of the physician, we argue that it is in the practitioner’s self-interest to abandon the medical gaze (and the clinical, rational rhetoric that attends it) in favour of a broader perspective that acknowledges the whole person of the patient and that sees him or her as a principal actor in processes of medical remediation. By so doing, the doctor might effectively nullify the potentially alienating effects of (a usually unconscious) ‘clinical professional perspective’—one partially informed by the intensive, repetitive practices of examination still taught in medical schools and, especially, during the course of hospital internships.
As the (often semiotic) theories and models below suggest, in order to promote a two-way dynamic, the doctor needs to actively privilege referent power: the power of interpersonal skills and charisma — including a willingness to listen empathetically, and to engage the patient as an ally against ailment. In this way, rather than passively — and even submissively — accepting a diagnosis and treatment advice, the patient actively participates. While we consider the relevance of such a modality below, for the physician who is not familiar with communication theory it is useful to briefly set the scene by traversing and contextualising the early work of Claude Shannon and Warren Weaver who developed the so-called ‘mother of all communication models’.
Engaged by Bell Labs (a division of the Bell Telephone Company) as a research scientist, in 1948 Shannon conducted investigations into signal processing operations — including limits on the compression and transmission of data through telephone lines. The model he developed saw communication as an essentially linear process comprising information source, transmitter, channel, receiver, and destination. Weaver developed and refined the work, introducing to the model the notion of ‘noise’ (initially electromechanical in nature) that got in the way of reception. It did not take long, however, for Weaver to appreciate that a range of other factors might get in the way of reception: attitudes, inferences, culture, and so on. In 1949, a co-authored work — The Mathematical Theory of Communication — offered a reprint of Shannon’s technical essay from the year prior and a popularised version of it by Warren Weaver. It was at this point that ‘noise’ became a significant factor in communication studies. Scholars realised that communication was never, in fact, ‘one way’ but that many factors might produce misunderstandings between senders and receivers; that communication was not linear at all, but involves a complex series of feedback loops that act as a system of checks and balances in the face of ‘noise’ from a range of sources.
The result of such noise is the ambiguity and uncertainty that always compromises communication. While the problem of uncertainty absorption (often a function of mute deference to superiors and to blind adherence to other informal cultural practices) is arguably pertinent to the doctor-patient relationship, so too is the capacity to mobilise ‘uncertainty reduction theory’ as a defence against the potentially deleterious effects of uncertainty absorption. In essence, and the genesis of the problem is traversed above in the context of our discussion of French and Raven’s work on power and Foucault’s work on the medical gaze, uncertainty absorption occurs when a subordinate fails to alert a superior to symptoms that might result in a catastrophic system failure. A (now) classic example from the non-medical world includes the semi-fictionalised filmic account of the K-19 nuclear submarine catastrophe wherein a junior engineer fails to alert a senior engineer to a higher-than-usual fuel rod temperature. Although the junior engineer knows that the higher reading is irregular, he is reluctant to trouble superiors who seem less fazed. The result is the near meltdown of one of the submarine’s reactor cores and the loss of many crewmembers to radiation poisoning. Malcolm Gladwell’s book Outliers provides another instructive insight into the phenomenon of uncertainty absorption and its potentially catastrophic consequences. Gladwell observes that hierarchical, deferential societies experience more aviation catastrophes because co-pilots are less willing to challenge the judgements and actions of superiors. The point, here, is not to suggest that deference to doctors will always result in catastrophe but to note that when the ‘noise’ of a deferential culture exists (such as that arguably manifest in the doctor-patient relationship – especially in its early phases), important information may not be disclosed leading to complications that result in complaint. It is, therefore, very much in the practitioner’s interest to create a culture that encourages full disclosure. And here, Uncertainty Reduction Theory has a significant place.
Uncertainty Reduction Theory (URT) proposes that a mix of ‘passive’, active’, and ‘interactive’ strategies be mobilised to reduce uncertainty between strangers. Developed in 1975 by Charles Berger and Richard Calabrese, URT interrogates the nature of initial meetings between strangers (such as the first consultation between patient and doctor) and suggests how the inevitable uncertainty between such people might be overcome. This is particularly relevant in the case of the itinerant or peripatetic patient, but applies to the initial phases of all practitioner-patient relationships. Berger and Calebrese’s model identifies three developmental phases of a relationship: an entry phase (characterised by the granting of essential demographic information); a personal phase (wherein interlocutors, feeling less constrained, reveal attitudes, beliefs, and more personal information); and an exit phase (characterised by the granting of less information and by the avoidance of communication altogether). Of interest to the present study is the area between the entry and personal phases. Here, where trust is formed, passive, active, and interactive strategies can reduce uncertainty and facilitate a more productive relationship. Passive strategies include unobtrusive observation of a person while active strategies might include finding out about the person from others. In the case of the doctor-patient relationship, the doctor might read the case-history notes of another practitioner or take a briefing about the patient from another practitioner. Interactive strategies, on the other hand, are dialogic and conversational in nature. The model holds that, together with passive and active strategies, dialogue (and especially increased frequency of dialogue) builds coalitions. In addition to the identification of the three ‘relationship’ phases, Berger and Calabrese’s work offers a number of axioms from which are derived a range of theorems. Of the axioms, most pertinent to this study is that as the amount of verbal communication between strangers increases, uncertainty decreases and that as the number of non-verbal affiliative expressions (smiles and so on) increase, uncertainty decreases. Of the theorems, those most relevant are: that quantum of speech and quantum of non-verbal communicative expressions are positively related; that quantum of talking and level of intimacy are positively related; and that quantum of non-verbal expression and level of intimacy are positively related.
Communication Accommodation Theory (CAT) focuses in on the role of such dialogue. A broadly heuristic theory, CAT sets out to ‘describe and explain aspects of the way people modify their communication according to situational, personal, or even interactional variables.’ (Williams, 1999: 152) More significantly, the model provides a framework through which changes in communicative behaviour might be considered in relation to certain psychological processes that either diminish or exacerbate the differences between interlocutors. Two descriptors ‘reference’ these polarities: processes of convergence (through which certain features of diction, syntax, and prosody indicate and reflect an individual’s desire for social connection and approval), and processes of divergence in which choices in the same areas indicate indifference about such connection and approval. For instance, and again this is of significance to the doctor-patient relationship — especially in its crucial early phase — when a speaker aims to improve the quality of interaction, in a process called ‘communicative tuning’, he or she will select communication strategies that attend to and/or anticipate the communication needs and characteristics of another. This may involve using plain language (as opposed to jargon), offering affiliative non-verbal cues, asking open questions, and mimicking the body language and speech behaviour of the other party. While the latter may sound potentially offensive (and, under certain circumstances, it may be), when people converse it is surprisingly common for them to mimic each other’s speech. This is done almost intuitively, but in a muted, reciprocal way that falls well short of parody. Under these circumstances, such mimicking is interpreted as mutually sympathetic interaction and a sign of symmetrical communication. Of interest here is a 1986 study by DiMatteo et al. (that found that when doctors matched patients’ body language patient satisfaction improved) and a 2004 study by Williams and Ogden that made the same observation with respect to vocabulary.
While two-way symmetrical communication has been long held up as an ideal, in 1984 Grunig and Hunt proposed that, under certain circumstances, two-way asymmetrical (read: uneven, but fundamentally dialogic) communication might have substantial advantages. As its name suggests, two-way asymmetrical communication implies that one of the communicating parties is in a position of cultural dominance (here we re-reference our main them) and that, in order for the agenda of that party to prevail, the dialogue must, in some sense, be ‘directed’. This mode of communication is distinct from two-way symmetrical communication that implies a near perfect (even idealistic) balance of input. Clearly, such a mode is not appropriate for an expert/novice relationship, but the two-way asymmetrical model works well where one party has far more knowledge than the other—precisely the case in the doctor-patient relationship. While actively seeking feedback, under the two-way asymmetrical model, the expert ‘dominant’ party (the doctor) ‘sets the agenda’ — that is, offers a perspective to be explored — and sensitively moves the discussion towards a medically acceptable conclusion. An analogy is public concern over airport operations. Suppose, as is often the case, there is objection to the choice of flight paths over residential areas. The public voices its concern and objections, but there may be compelling technical reasons for the selection of these paths – something that experts in the airline industry need to explain. In the case of the doctor-patient relationship, the patient is carefully listened to while the practitioner, with years of experience and medical knowledge behind him or her, guides and encourages the patient to participate in processes of diagnosis, treatment, and management.
Finally, while counterintuitive to suggest that self-interest, as is implied above, might have a place in the context of a profession dedicated to the service of others, given the ‘difficult times’ in which doctors now practice, it is argued that the application of theories of self interest might serve both doctor and patient very well. While there is a range of such theories, among the more contextually enlightening is Michael Jensen’s theory of self-interest, altruism, incentives, and agency. In his 1994 paper of the same title, Jensen presents what is an essentially libertarian argument: that ‘history provides much evidence on the adverse consequences that follow from failing to understand the proper role of self interest, how self-interest is consistent with altruistic concerns for the welfare of others, and how increased attention to self-interest or rational behavior would make the world a better, not worse, place to live.’ (p. 4) The focus of Jensen’s paper is commercial self-interest but his work nonetheless has implications for the practice of medicine. Jensen’s sub-thesis that ‘there is nothing inconsistent between self-interested and altruistic behaviour’ and that a willingness to sacrifice one’s time, energy, and resources for the benefit of others does not necessarily point to the ‘perfect agency’ that altruism implies, suggests that a doctor’s self interest might not be incompatible with vocational imperatives. (p.5) Jensen argues that people commonly exhibit non-rational behaviour (read: behaviour that is dysfunctional or counterproductive and, therefore, not in one’s self-interest) and that this behaviour systematically and predictably harms individuals. (p.8) When projected into the sphere of medical practice, it is argued that doctors should understand that reflection on the history of the clinic and clinicians and the application of new modes of communication are entirely rational, and that such activity is not only in the best interests of the patient (in terms of involving him or her in processes of medical remediation) but in the interests of practitioners themselves. Doctors should further understand that, in this case, putting themselves first is not necessarily a bad thing.
This preliminary paper, which draws together just some of the research conducted over the last twenty-five years (especially), points to a malaise already having a significant impact on the medical profession. In greater number, and often as a result of poor or indifferent communication, Australian doctors are finding themselves subject to processes of formal complaint and litigation. While the vast majority of complaints against practitioners do not result in court action, their increasing frequency and their profoundly deleterious effects are nonetheless disconcerting. The issue does not only affect medical practitioners, but a broad range of health professionals who now come under the auspices of AHPRA. These include nurses and midwives, dentists, pharmacists, chiropractors, optometrists, osteopaths, podiatrists, physiotherapists, and psychologists.
While Nash et al. (2010) argue that ‘[d]octors need to be educated about medico-legal processes and understand how the experience may affect their health, their work, and their loved ones’ (pp. 164-165), we argue that a far more pressing concern is to suggest ways that medical practitioners might significantly reduce the risk of complaints being made against them in the first place and, therefore, limit the risk of litigation.14 While much of the literature points to the inevitability of doctors’ involvement in medico-legal matters, no matter how careful they might be in their practice, we have argued that attention to the history of clinical practice (and to particular, contingent, theories and modalities of communication) might see better outcomes for training programmes and a reduction in the number of complaints.
In the meantime, as practitioners consider the present article, another figure from Shakespeare’s Othello offers a sage observation. Burdened with a judgement he believes unjust and reflecting on the counsel of those who tell him he must accept the outcome, a humiliated Brabantio simply says: ‘He bears the sentence well that nothing bears.’ (Act I, sc. iii, 213) In other words, unless one experiences the trauma of a perceived injustice—especially a perceived assault on one’s reputation—one cannot hope to empathise. The connection to our paper is this: sadly, as more and more doctors in Australia (and elsewhere) directly experience patient complaints, they will find themselves hoping for the understanding, sympathy, and support of those who have not experienced the trauma—yet. While our work is preliminary, it is our hope that an understanding of the cultural and historical dynamics of clinical practice (and the martialling of communication and semiotic theory tailored to redressing certain contingent communication imbalances) will mean that fewer doctors find themselves so positioned.
 While of significance, we do not propose to deal with the prospect of informal complaints against medical practitioners — such as those that might appear on private websites, in blogs, in discussion groups, and in similar fora.
 Christina Anastasopoulous (2009) makes the point that, in Australia, there are no comprehensive national figures showing either growth in or decline of litigation and complaints against GPs. Consequently, the researcher must aggregate scattered data and information.
 A first glance this figure seems out of step with the results published by Nash et al. (2009), until one realises that the latter figure refers to all medical professionals and not only to general practitioners.
 A 1994 US Office of Technology report defines defensive medicine as a phenomenon occuring ‘when doctors order tests, procedures, or visits, or avoid certain high-risk patients or procedures, primarily (but not solely) because of concern about malpractice liability.’ (US Office of Technology Assessment in Sloan and Shadle, 2008)
 Medical specialist and researcher Nicholas Summerton (2000) writes that ‘[d]efensive medicine may be defined as the ordering of treatments, tests, and procedures for the purpose of protecting the doctor from criticism rather than diagnosing or treating the patient. (p.565)
 Sloan and Shadle’s (2009) study is limited to the elderly, who are less inclined to make complaints or sue for medical malpractice.
 See Dyer, C. (1999)
 The Economist of May 21st, 2011 notes that ‘[m]any doctors spend thousands of dollars each year, if not each month, on premiums for medical malpractice insurance…’ (p.43)
 the Australian Health Practitioners Regulatory Agency
 It may be because doctors feel in some sense trapped in their profession that, rather than leave the job, those who have had a complaint made against them commonly resort to over-cautious, non-engaged practice.
 While communication in the context of emergency departments is, in many respects, very different from practitioner-patient communication in the context of a general practice, there are important areas of cross-over including concern about mismatches between the communicative aims of patient and practitioner, issues around the way in which diagnoses are delivered, and a consciousness of the need to listen.
 In was, in fact, Isocrates (and not Grunig and Hunt) who first identified that two-way symmetrical and two-way asymmetrical communication builds coalitions.
 In 1954 Wilbur Schramm further developed the work of Shannon and Weaver, proposing that complex processes of encoding, decoding, and feedback were fundamental to communication. While acknowledging various sources of ‘noise’, he also argued that the receiver’s knowledge, culture, and capacity to understand are central to the communication process – and that without feedback, the sender might never be sure that the message had been received as intended.
14 It is pointed out that medico-legal processes prior to litigation can have more serious repercussions than the machinery of the courts. Quoting Avant’s general manager of risk management, Christina Anastasopoulos (2009) highlights that a successful complaint can result in deregistration: ‘A complaint to the medical board can lead to the loss of the right to practice, which in many ways is a much more severe long-term outcome than most litigation. And yet complaint to a board, while obviously distressing, does not seem to cause as much immediate stress as receiving a writ.’ The point is borne out by an article that appeared in a 2003 edition of Medical Economics, which points out that, in America (as in Australia), while physicians legitimately fear a lawsuit, few realise ‘that a patient’s complaint…could pose an even greater threat to their careers and livelihoods.’ (Hilliard, p.83)
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