Medicine, Law & Policy
A Shoulder to Lean On
Physicians who are involved in a lawsuit need help maintaining their emotional health.
By Ronald L. Hofeldt, M.D.
According to the American Medical Association, 42 percent of physicians will face a medical liability claim at some point during their career.1 Working through the litigation process is one of the most difficult things a physician will ever go through on both a legal and personal level. A study published in the Western Journal of Medicine in 1988 found that 70 percent to 86 percent of physicians surveyed reported feeling tension, depression, frustration, and anger while going through litigation. In addition, a portion of them were diagnosed with a new physical illness or experienced the exacerbation of an existing one such as hypertension or coronary artery disease during that period. 2
A malpractice suit is often a shocking and unexpected event. Physicians who are sued often perceive themselves as having failed. That perception erodes their self-esteem and their confidence in their ability to practice medicine.
Common Reactions to a Lawsuit
Denial—the sense that it cannot be happening: “How can such a dedicated and caring physician be sued?”
Avoidance—cutting back on the complexity of procedures performed to lessen the possibility of further litigation. In one case, an orthopedic surgeon refused to operate on left knees after being sued for a left-knee procedure.
Assurance—ordering more tests and requesting more second opinions.
Overwork—seeing more patients in an effort to prove that a physician has not lost his touch.
Self-doubt—physicians thinking they should have provided different care, acted sooner, conducted more research, taken more CME, or spent more time with patients.
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Because a typical malpractice claim takes an average of two years to resolve, it can have a dramatic effect on a physician’s practice. Far too often physicians lose the feeling of joy they get from practicing medicine; some may even leave the profession during the prime of their careers. In an attempt to lessen the risk of further exposure, physicians who are going through litigation often limit their practice by refusing to treat high-risk patients or perform high-risk procedures. In addition, they are often at risk for a range of health concerns brought on by exposure to chronic stress including myocardial infarction, cancer, hypertension, anxiety, depression, abuse of alcohol and other drugs, accident-related injuries, and even suicide. Because of the added strain, physicians’ personal relationships can suffer, and anecdotal evidence of an increase in marital discord and divorce has been noted.
Physicians who’ve been sued worry about the five Rs: reputation, referrals, recredentialing, reinsurability, and remuneration.3 Yet, even though they have reason to be concerned about these issues, very rarely do they become problematic in the event of a single lawsuit. However, because their medical training fails to educate them about the likelihood of being sued and the emotional toll that it takes, physicians often feel shame and humiliation when they are sued. This often causes them to withdraw from social and professional activities: They avoid colleagues in the hospital, arrive late to meetings, and leave early. This creates a harmful cycle, as hiding in silence only further erodes their confidence and self-esteem.
More than Legal Aid
A number of groups have recognized that physicians need more than legal support when facing a lawsuit, and some have created resources that allow physicians to share their feelings, acknowledge their fears, and address the emotional impact of litigation. The Physician Litigation Stress Resource Center (www.physicianlitigationstress.org.), for example, is a not-for-profit organization that directs practitioners to articles, books, and websites that offer strategies for coping with the stress of litigation. In addition, a number of medical malpractice insurance carriers offer physicians help in dealing with the stress and emotions associated with litigation.
In Minnesota, MMIC Insurance Inc. created the Physician Litigation Support Program in 2008 after findings from a survey of physicians indicated that lawsuits deeply affect them and highlighted the lack of resources for those involved in a malpractice suit. It was also reported by defense attorneys that cases that were highly defensible were too often settled, sometimes for large sums of money, because physicians were unable to withstand the pressures of litigation and the rigors of trial. MMIC decided to take a proactive approach and developed a litigation-support program for its clients.
When a claim or lawsuit is brought, physicians automatically receive a letter introducing the litigation-support program. By taking advantage of these services, physicians have an opportunity to share their feelings with a colleague who is knowledgeable about the litigation process and has skills in litigation coaching. Most clinicians are greatly relieved to have an opportunity to openly discuss their feelings about the suit. They’ve often been carrying the load alone and are grateful to be able to confide in a fellow physician who understands their feelings and is nonjudgmental. In addition to being able to discuss what they are feeling and how it is affecting them, physicians who take advantage of the program receive the following assistance, which can help them feel more empowered: Education about the litigation process. Litigation is often an unfamiliar and intimidating process. Physicians need to know what to expect and how to prepare for the grueling ordeal that lies ahead. For that reason, it is essential that the physician is knowledgeable about every aspect of the litigation process. The more they understand, the better they perform in the courtroom.
Help with preparation. Before testifying at their deposition or trial, physicians are coached on how to be a credible and persuasive witness. Because the deposition and trial provide an opportunity for the plaintiff attorney to intimidate or discredit the physician, the physician must be well-prepared and skilled in maintaining control over his or her testimony. Physicians often are too helpful during the deposition, which is a common mistake. The less information the physician volunteers, the better.
Because testifying is an emotionally charged experience, how the physician deals with the situation is central to how a suit eventually turns out. If the physician negatively reacts while in the witness chair, the outcome can be altered, and sometimes a case is settled that would otherwise be defensible. For that reason, the physician needs to learn about the attacks and tricks that often come from the plaintiff attorney. They need to also understand that comments should not be taken personally. With preparation and support, physicians will feel less fear and uncertainty and be more resilient when questioned by attorneys.
Referral to local resources. When the physician needs professional or psychiatric assistance, local resources are sought and appropriate referrals made. On occasion, physicians may be advised to promptly contact their primary care physician for assessment and treatment of underlying depression, anxiety, and other conditions. Appropriate follow-through ensures that necessary care is provided.
Education about the importance of self-care and self-awareness. Physicians who are going through litigation are encouraged to follow the advice they give their patients: to slow down, eat right, socialize, exercise, meditate, discover outside interests, play, laugh, and have fun. They are also encouraged to clarify their personal and professional values and goals. Are they practicing the way they want? Do they need a better balance between work and other priorities? Even though litigation is painful, it can help one re- focus and define what in life is meaningful and fulfilling. Over the years, many physicians have shared that the malpractice suit helped them slow down and taught them to “take time to smell the roses.”
Help with moving on. Once the case is over, physicians experience a huge sense of relief. But it takes time to put the experience in perspective. Physicians who have been through the process and received help through the Physician Litigation Support Program understand that litigation is an inevitable part of practicing medicine. As a result, they can look at their work with new insight. For example, they might better appreciate the importance of documentation and informed consent—elements of medical practice that are sometimes forgotten. And they understand the importance of keeping an open channel of communication with patients and their family members as well as with co-workers in order to lessen the chance of misunderstandings. In addition, they may be more empathetic to colleagues who are going through the process.
They also learn to step back and remind themselves of their extraordinary talents and skills as healers who care deeply about their patients. Instead of focusing on the one patient who brought the lawsuit, they can learn to think instead about the good they do for all of their patients and the wonderful gifts they give them daily.
Conclusion
Litigation is a complex and demanding ordeal. Physicians who go through it often report that having someone who can help them gain in-depth knowledge and understanding of the process and offer them support along the way significantly lessens its toll on both their professional and personal lives. A physician who recently went through a prolonged trial that ended with a successful defense verdict stated, “I never want to go through this again; but if I do, take my hand and guide me through it. Reducing the uncertainty about the litigation process made a huge difference.” MM
Ronald Hofeldt is director of the Physician Litigation Support Program for MMIC Group.
References
1. Kane CK. Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians. American Medical Association; Chicago. 2010.
2. Charles SC, Pyskoty CE, Nelson A. Physicians on trial: self-reported reactions to malpractice trials. West J Med. 1988; 148:358-360.
3. Weiss GG. You’ve been sued. There’s help. Medical Economics. February 7, 2003.