Risk Management

Surviving the Aftershocks of Malpractice Litigation

By Sara C. Charles, MD

Sara C. Charles, MD, is Professor of Psychiatry (Emerita) at the University of Illinois School of Medicine in Chicago and the author, with Paul Frisch, JD, of the Oregon Medical Association, of Adverse Events, Stress, and Litigation: A Physician’s Guide (Oxford University Press, 2005).

Digest, 2005

Earthquake experts tell us that the larger the main shock, the larger and more numerous are the aftershocks, those small earthquakes that can continue over a period of weeks, months, or even years. The aftershocks associated with adverse medical events, such as a bad outcome, or with a subsequent lawsuit may vary in severity. These life-altering events, borne within the physician, are hidden from public view, shaking the foundations of our personal and professional lives. One fledgling ophthalmologist who was sued while in residency admits that the experience continues to influence his care of patients even many years later:

“The lawsuits really did shake me up. The first one was an unavoidable surgical outcome during residency. Just before beginning my first job after fellowship, I was notified of the litigation by the hospital’s attorneys. It made me feel terrible. I even called to resign a job I hadn’t even started. I was very green and didn’t realize the preponderance of lawsuits. Fifteen years later, even though my actions were remote from the sphere of litigation, I still feel it was very problematic and I worried until I was dropped from the lawsuit. In talking with my peers, I know that litigation tears up lives and does, I think, result in a thickened skin and greater distrust of patients in general.”

Like many other physicians undergoing similar trauma, this ophthalmologist felt isolated and unsure of where he could find a helping hand. For most physicians, the adverse event triggers an avalanche of practical details associated with the investigations, regulatory demands, and legal processes. In addition to the disruption caused by participation in these activities, most physicians say that the event itself and the subsequent lawsuit also cause significant emotional and physical symptoms. Such experiences should not be borne alone.

Treating the Defendant as a Person

Few insurers do as good a job as OMIC in paying attention to the people involved in a claim. Although some risk managers, claims personnel, and attorneys understand the human dimension of being a defendant, their primary concern must be the management of adverse events and lawsuits. As defendants, we doctors often feel very alone and worn down by the burden of defending our own integrity. Feelings of isolation and vulnerability are reinforced and complicated by the common legal admonition “not to talk to anyone” about what has happened.

For most of us, confusion rather than clarity follows the serving of the complaint. We feel abandoned as we try to manage our conflicting feelings and restore equilibrium to our lives. We are often unfamiliar with the litigation process and so we are not sure that anything, short of the suit being dropped, would help us feel better. Emotionally upset and naïve regarding the legal process, we do not even know how to find or profit from whatever support may be available. To whom do we turn? What are the important questions to ask? We must nonetheless prepare ourselves to take on, however reluctantly, the new and difficult challenge of defending ourselves against the lawsuit that looms before us.

Web Site for Sued Physicians

A new web site has been established by an advisory group of physicians, lawyers, and insurance personnel as a resource for physicians feeling the aftershocks of adverse events and the repetitive traumas associated with litigation. This site (www.physicianlitigationstress.org) provides physicians and other health care professionals with easy access to resources to help them understand and cope with the personal and professional stress set off by involvement in an adverse event that may result in litigation. Designed both to lessen the feelings of being alone and to provide the information needed to respond to the situation, the site adheres to the philosophy that most physicians function well and can accept and successfully implement suggestions about how to help themselves.

Being sued, or being caught in the backwash of a bad outcome, can generate sleeplessness and other physical symptoms, such as headache, gastrointestinal disturbances, or chest pain. We may also experience anger and depression or find ourselves so preoccupied that it interferes with our daily life. The web site is not a substitute for the professional counseling that may be indicated in some situations, or the support groups offered by some medical malpractice insurance companies, or other ad hoc groups. Rather, the web site offers resources for the majority of physicians who, given sensible support and an understanding of what to expect, how to cope, and when to seek help, can manage the stress associated with these events successfully.

What to Expect If Sued

On the first page of the web site, physicians can download “Coping with the Stress of Litigation” (West J Med 2001; 174:55-58). This affords an overview of what to expect if sued and offers suggestions on how to cope with the experience. Based on surveys, interviews, and extensive clinical data, this article acquaints readers with the typical reactions of more than 95% of sued physicians who experience at least temporary periods of emotional disruption at some time during their lawsuit. The article briefly reviews the feelings and symptoms that defendants can expect during the different stages of what is often a lengthy process.

It also explains why we feel the way we do about being sued. Many physicians possess, at least in part, obsessive-compulsive personality traits, which can cause us to constantly examine ourselves, doubt ourselves, experience feelings of guilt, and possess an exaggerated sense of responsibility. Current tort law requires that negligence be alleged in order for compensation to be awarded. Merging these psychological fault lines – a legal accusation of fault against a person who is already self-critical and has lofty personal expectations – causes the emotional earthquake of a medical malpractice suit. This accusation of negligence is the fundamental assault that challenges a physician’s core feelings of integrity and, more than any other factor, causes the profound psychological tremors that accompany lawsuits.

The article also lists a number of coping strategies. These include, as a first step, being aware of how we react to any trauma and, secondly, paying attention to and understanding emerging feelings and behaviors that are essential to effective coping. Our feelings often overwhelm us so that we have difficulty isolating exactly how we feel. Rather than succumb to confusion, we need to take the time to settle down, listen carefully to ourselves, and identify exactly how we feel by naming the feeling. Do I feel angry, sad, depressed, or hurt? Am I preoccupied, distracted, and self-concerned to the point that my work is suffering? Asking and answering such questions strengthens our ability to deal successfully with the experience.

Malpractice Litigation Literature

Because lawsuits occur within a cultural and legal context and the climate of litigation and trends within the insurance industry are constantly changing, we help ourselves by placing our own lawsuit into perspective as we deepen our familiarity with the literature about litigation.

The web site advisory group, in order to make such information available to physicians, carefully reviewed and compiled a bibliography of references on litigation stress and medical malpractice litigation. These references are listed, generally with abstracts, and cover the subjects of stress, disclosure, malpractice litigation, risk management, and adverse events.

The web site advisory group also reviewed a number of books, including the newly available Adverse Events, Stress, and Litigation: A Physician’s Guide published by the Oxford University Press, as useful resources for physicians on litigation related subjects. Links to publishers and booksellers are provided.

This resource also provides links to other web sites, including the American Medical Association’s “Medical Liability Reform Now!” document (www.ama-assn.org/ama1/pub/upload/mm/450/mlrnowdec032004.pdf). This is a regularly updated overview of the current climate of medical malpractice litigation, including the status of federal and state tort reform legislation. It also presents well documented information that counters many of the popular misunderstandings and accusations commonly made in arguments for and against tort reform.

In addition, many of the physician-owned insurance companies, specialty societies, and physician magazines offer web-based resources and articles supportive of sued physicians. OMIC, for example, features a number of downloadable products on its web site that physicians find especially helpful during litigation, including “Responding to Unanticipated Outcomes,” in the Risk Management Recommendations section, and  the Deposition and Litigation Handbooks, available in the Claims section of our website.

Support During a Lawsuit

It is one of the most difficult and perplexing aspects of a lawsuit that lawyers advise physicians not to “talk to anyone about this.” Involvement in a significant adverse event, especially one that leads to a lawsuit, is often a traumatic life experience. The natural and healthy urge after any traumatic event – whether it is a divorce, the sudden death of a loved one, an unanticipated natural disaster, or the death of a patient – is to talk about it. Yet in this instance, we are cautioned that doing so may jeopardize our ability to defend ourselves should a lawsuit develop. Attorneys do not want us to say anything that may be interpreted as assuming responsibility for the event. Such a strict prohibition may be sound legally but it is not good psychologically. Many lawyers and claims professionals agree that it is possible to share our feelings about the event without violating the spirit of the advice of legal counsel.

This web site offers just such an approach: We can talk about our feelings regarding the event but not the specifics of the event itself. We can accept the discipline of not talking about the specifics while still expressing our dismay and anger about the event. The physician who refrains even from telling a spouse about the fact of the lawsuit is likely to be a more symptomatic and less effective defendant than the physician who can share feelings with trusted confidants while refraining from discussing the facts of the case. Many factors affect our choice of a confidant: our level of comfort with and confidence in the person is essential. We need someone with whom we can truly be ourselves and someone who is trustworthy and understands and respects the legal constraints imposed on us.

When Ordinary Support is Insufficient

The support offered by family, friends, and peers is sometimes insufficient. If physical and emotional symptoms persist, consultation with an appropriate professional may be indicated. We may develop physical symptoms that are highly suggestive of a diagnosable condition. We may observe certain dysfunctional behaviors in ourselves that complicate our lives, such as excessive drinking or lack of attention to paperwork. We may experience symptoms that signal a clinical depression or other psychological disorder. The web site offers suggestions about when consultation is warranted as well as what ordinary resources may be helpful. It also reviews some of the impediments, some self-imposed, that we, as physicians, are likely to encounter in our effort to obtain professional help.

The resources of this new web site provide information about the experience of an adverse event, lawsuits, and the stress that accompanies litigation. This information is not considered risk management or legal advice because technical advice related to individual cases should come from one’s own attorney, risk manager, claims professional, or other advisor. Its overall goal, instead, is to help average physicians with their litigation experience and to decrease the likelihood that any practitioner will be left alone when involved in or facing the threat of medical malpractice litigation.