Risk Management

The Psychological and Emotional Impact of Being Sued

By Jerome W. Bettman Sr., MD

Digest, Fall, 1993

You have just received a letter from a patient’s attorney informing you that a malpractice claim has been filed against you because of negligent care of the patient, which resulted in severe impairment. The letter suggests you contact the attorney’s office to work out a settlement.

It is not uncommon that the first notice of a claim against a physician is an intimidating letter from the patient’s attorney threatening a lawsuit while at the same time offering a settlement. It is the “iron hand in a velvet glove” approach and the opening move by plaintiff’s counsel to unhinge the physician psychologically and emotionally.

The Medical Malpractice Stress Syndrome

Like the above-described threatening letter from a patient’s attorney, much of what takes place during the course of litigation causes alarm, anger and anxiety, leading to what is commonly referred to as “the malpractice stress syndrome.” This syndrome is well recognized and has been documented by a number of researchers.1, 2

Over the course of a medical malpractice claim, it is not uncommon for a defendant physician to develop one or more symptoms related to this syndrome. These symptoms include: anger, inner tension, irritability, insomnia, anorexia, difficulty in concentration, negative self-image, feelings of being misunderstood, decreased self- confidence and decreased libido. Like most psychological maladies there is no cure for the syndrome, but steps can be taken to diminish and cope with the symptoms.

Take Positive Action

The first action to take when confronted with a claim or lawsuit should be reflexive: NOTIFY YOUR INSURANCE CARRIER AT ONCE. When you notify your carrier, you will be counseled by a claims professional who will be able to answer many of your questions regarding the claims process. An attorney will be assigned to your case who is experienced in defending medical malpractice lawsuits. The insurance carrier will advise you what to do and what not to do as a defendant-ophthalmologist. These admonishments may include:

• Do not speak to the plaintiff’s attorney, no matter how kind and cooperative he or she seems to be. Any contact must be between your attorney and the plaintiff’s attorney.
• Do not add to or alter your records no matter how tempting it may seem to do so, or how cleverly you think you can do it.
• Do not discuss the specifics of the case with anyone except your attorney.
• Do not look up relevant literature without the permission of your attorney. [However, if a review of literature is done at the request of your attorney and the two of you discuss it, the research may be cloaked in the attorney-client privilege. If your research is damaging to your case, it will not be discoverable by the other side or introduced at trial if the attorney-client privilege applies.]
• Do gather all the patient’s medical records and keep them in a safe place in your office.
• Do keep correspondence from your carrier in a separate file from the patient’s medical record.

Anger is a common reaction to a claim or lawsuit and a physician’s anger may spill over to the insurance carrier, the attorney and the court system as a whole.3  Do not permit anger to cause you to do things that could diminish your defense such as not reporting immediately to your insurance company, or not working closely with the attorney it provides.

One effective way to cope with the stress of a lawsuit is to take an active role in your own defense. This assumes a basic trust in your attorney and a willingness to take direction. Share all information about the case with your attorney no matter how bad it might seem. Your attorney can only prepare a defense against the negative aspects of the case by knowing what they are. Share your knowledge of the facts and educate your defense counsel about the clinical aspects of the case. Although your attorney may be well versed on many areas of medicine, ophthalmology claims are comparatively infrequent and some help in understanding eye diseases and treatment may be needed.

Your attorney will retain an expert in your defense; however, as the medical expert most knowledgeable about the care you gave the patient, you are an essential part of the defense team. Help your attorney understand the weak points and strong points of the medical matters in your particular case.

Facts About Medical Malpractice Lawsuits

The depression, worry and negative self-image that arise from the malpractice stress syndrome may be somewhat alleviated by the realization that a plaintiff’s claim does not mean the physician is a poor ophthalmologist. Claims are filed against one in six to one in eight doctors every year, the precise incidence varying with the jurisdiction. In some geographical areas, more than one out of every two physicians has been sued! Claims are filed against all types of practitioners. Internationally renowned ophthalmologists as well as department chairmen at major universities are sued. It is simply one of the hazards of practicing medicine.

Most claims against physicians do not result in a payment to the plaintiff and very rarely do the claims go to trial. Data from the Physician Insurers Association of America (PIAA, an organization of some 45 doctor-owned professional liability insurers) indicates that only 25% of claims against ophthalmologists result in an indemnity payment to the plaintiff and only 5% of these indemnity payments result from a trial. OMIC’s own data shows that only 22% of claims against its insureds result in an indemnity payment. Furthermore, a study of 976 medical malpractice lawsuits filed against physicians in New Jersey showed that juries found in favor of the physician in about 76% of the cases where there was a jury verdict.

Therefore, the physician who is sued should realize at the outset that the overwhelming majority of claims are resolved prior to trial in favor of the physician, and of those that do go to trial, the jury usually finds for the physician. Remember these facts when you awaken at 3 a.m. with visions of losing your possessions, or not being able to send your children to college.

An actual case in point may give you an idea of how overwhelming these feelings of hopelessness can be. The first trial of a defendant-ophthalmologist lasted for weeks before ending in a “hung” jury. A long period of time elapsed before the second trial during which the ophthalmologist obsessed about losing his practice, his good reputation, etc. The second trial ended in a verdict for this ophthalmologist, but he had worried so much about the possibility of “losing everything” that he wasn’t able to practice for several months.

Adjust Your Schedule and Activities

Initiation of a medical malpractice lawsuit by a patient may have a noticeable effect on the physician’s practice, resulting from a changed attitude toward patients. Avoid viewing patients as potential plaintiffs and continue to practice the best medicine you can as a caring and competent physician. Spend a few extra minutes with each patient to affirm the rapport necessary for a good doctor-patient interaction.

A study of 1,747 open and closed claims by the Physicians Insurance Company of Michigan showed an increased risk of a second litigation-producing incident within a year of receiving notice of the first claim. Due to the stress generated by a lawsuit, the defendant-physician might wish to reassess his or her work schedule and related activities. Temporarily decreasing one’s patient load or scaling back on practice hours may relieve the stress created by a lawsuit and free the physician to devote more effort to mounting a strong defense in the pending lawsuit. It also frees up time for family and friends, which is important during this stressful time. Involvement in non-practice-related activities such as teaching or a favorite hobby may increase one’s sense of self-worth and self-confidence.

During the course of a lawsuit, it is easy to become isolated or to self-medicate with drugs or alcohol. Avoid the temptation to do so. A substance abuse problem only makes dealing with the litigation process worse. It may be helpful to speak to a trusted colleague or friend in a general way about the claim and its effects. You may learn that your colleague also has been involved in a lawsuit and is willing to discuss the experience with you. However, be careful not to discuss the clinical facts of the case, or open up about your doubts and seek reassurance. During the discovery phase, you could be required to divulge all persons with whom you have discussed the case and your colleague may be required to testify about the doubts you divulged. Any such discussion held with colleagues in the presence of your attorney, on the other hand, cloaks what is said in the attorney-client privilege and protects it from discovery by the plaintiff’s counsel.

Conclusion

It is very likely you will have at least one lawsuit filed against you during your career. Remember to maintain a sense of perspective about the litigation process and realize that there are positive ways to cope with the malpractice stress syndrome. The guiding word when going through this crisis is Equanimity.

Notes:

1. Reading Reverend EG. The Malpractice Stress Syndrome. Maryland Medical Journal. March 1987:207.
2. Charles SC, et al. Physicians’ Self-Reports of Reactions to Malpractice Litigation. The American Journal of Psychiatry. 1984;141:563-565. [This study indicates that 96% of doctors experience some emotional reaction after being sued.]
3. Reisman NR and Gonzalez SM. How to Channel Your Anger into Winning Your Claim. Ophthalmic Risk Management Digest. 1992;2(4):3-5,8.