Who supports physicians in malpractice cases? (Doctors, Lawyers and Lawsuits).

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FEW EVENTS IN A physician's career are as traumatic as a medical malpractice suit. (1)

Each year in the United States, our tort system generates approximately one suit for every 2.5 obstetricians, neurosurgeons and orthopedists, and nearly one suit for every five physicians overall. (2)

The Harvard Medical Practice study implies there are too few lawsuits, with "over 80,000 patients killed each year by America's doctors." (3) Clearly the practice of medicine deals with serious life-and-death issues. Equally clearly, adverse events occur in the care of patients.

Although most of those adverse events are due to severity of illness, some are due to negligence. (4) Reducing medical errors and improving patient safety are of grave concern to the medical profession and to society. The Institute of Medicine focused its first landmark report on the importance of improving patient safety in the health care system of the United States. (5)

A shocking experience

Malpractice suits shock physicians.

Doctors quickly realize that in a malpractice allegation there is strong correlation between severity of disability and outcome, but there is little correlation between negligence and outcome.

This prompts strong reactions from physicians who perceive this as an injustice in the system.

"In only one sixth of the claims did we find persuasive evidence of negligent injury on the record," concluding that "...a sizeable financial and emotional burden is imposed on physicians and their insurers simply from being caught up in lawsuits due to mistakes initially made by patients' lawyers," Weiler reports. (6)

Adding to this perception is the fact that the jury system is designed to exclude health care providers from the process. As a result, those who are best suited by training and experience to understand the complexities of medicine seldom serve as jurors.

Finally, many health care leaders question whether malpractice lawsuits do much to improve care. (7)

Literature is filled with discussions of malpractice risk prevention, risky procedures, litigious patient-types and strained physician-patient relationships. However, very little attention is given to the impact of a medical malpractice suit on the individual physician.

Sued physicians experience great emotional distress and the lawsuit changes forever the way they practice medicine. This profound personal effect has no correlation with guilt or innocence, as eventually established by the legal system. (8)

To help ease the personal and emotional trauma experienced universally by sued physicians, one physician organization in Texas began a program to support physicians in this time of great need.

Malpractice support committee

HealthTexas Provider Network (HTPN) is a physician organization governed by physicians. It's part of the Baylor Healthcare System of Dallas. The organization employs 305 physicians and serves as a network for contracting approximately 1,600 other non-employed physicians.

HTPN is dedicated to the practice of quality medicine and has appropriate mechanisms in place for compliance monitoring, quality improvement and peer review.

Leaders believe these safeguards result in a lower frequency of malpractice claims.

Nevertheless, the group recognizes that malpractice lawsuits will happen, errors will occur and physicians will face both baseless and well-founded malpractice allegations from patients.

Sued physicians go through a series of emotional responses, which are both predictable and common. These are comparable to the stages of grieving described in literature, (9) but involve additional responses unique to medicine.

The initial shock is followed by denial -- a feeling like "This can't be happening to me."

One physician was so stunned by being served with notification of a lawsuit that he could not talk for almost an hour and could not continue his schedule of seeing patients for the rest of the day.

These early emotional stages can have catastrophic consequences to the defense of the case as well.

In their distress, some physicians ignore time sensitive documents such as lawsuit papers and written discovery. Failure to file timely answers and responses can result in adverse events including deemed admissions, stricken pleadings or even default judgments.

Shock and denial lead to stages of anger, depression and resolution. But sued physicians experience emotional trauma that seems to be unique to the medical/legal environment. These include isolation, shame and fear.

Sued physicians usually contact their malpractice insurer quickly and then talk with a malpractice attorney. There is excellent information available to acquaint physicians with the unfamiliar legal environment they are forced to enter. (10)

In the initial interview, the attorney often cautions new clients to refrain from discussing the case with others, fearing that such discussions can be used against them in court. One result of this advice is to isolate physicians emotionally. Some physicians are even reluctant to discuss the case with their spouse.

Additionally, physicians are particularly prone to feeling ashamed about being sued. This feeling is almost universal and has nothing to do with the merit of the case.

Physicians confide that just being sued evokes feelings of unworthiness and inadequacy. They doubt their own skills and capabilities, in spite of evidence that superior physicians are sued more often. (11)

These feelings cause physicians to isolate themselves from both collegial and family support. Families and spouses frequently describe the sued physician as not acting like himself, being withdrawn, remote and uncommunicative.

Physicians experience a disruption of relationships with other patients, office staff and family as a result of a lawsuit. Some physicians even divorce. Rarely, physicians attempt suicide following claims against their patient care.

Improving on existing support systems

It is not uncommon for a lawsuit to take two to four years to be resolved. Various organizations recognize the emotional trauma that a physician experiences during the difficult and lengthy lawsuit process. (12, 13)

However, the sued physician who feels isolated and gagged by the process typically must reach out to get the emotional support. The physician board of directors at HTPN felt a more proactive process might be helpful. It's one that involves approaching the physician directly to offer support.

In 1999, HTPN formed a malpractice support committee. Under the confidentiality afforded by applicable state law, defense counsel agreed that the emotional support of peers, committee meetings, committee communications and committee records are confidential and not subject to court subpoena. (14)

A group of physician-volunteers were brought together and agreed that, when notified of a lawsuit of one of their colleagues, a representative of the malpractice support committee would contact the physician and offer support.

Committee members are trained in the role that they are to play when contacting their colleague. Most committee members once experienced a lawsuit.

Committee membership includes both Baylor Healthcare System Risk Management experts and attorneys from the retained HTPN defense counsel firm.

Although the committee only meets annually, if malpractice suits occur, the chairman of the committee is notified and a member of the committee is asked to approach the sued physician. If possible, the committee member selected is of the same gender and in the same geographic area as the sued physician.

The committee member explains the role of the committee, meets with the physician and, at the initial interview, presents a notebook that contains information on what to expect during a malpractice suit.

Additionally a set of audiotapes (15) is included that discusses the psychological and personal setbacks that physicians often face in this difficult time. Physicians are encouraged not to over-compensate or overreact by inappropriately altering their approach to patients or practice style.

The committee member is encouraged to listen reflectively and maintain an empathetic, supportive manner. The committee member then checks on the sued physician periodically, providing more frequent contact during critical or intensive stages of the malpractice case as it evolves.

Initial results

So far, feedback from physicians who received support from committee members is positive.

Most physicians respond affirmatively, accepting the information and the support of their peers. They often feel reassured by learning that their own reaction is both typical and normal given the circumstances.

They are gratified to have the support of a colleague and encouraged to know that they are considered a good and worthwhile member of the practice.

References:

(1.) File, A.E. "My Malpractice case was Literally a Trial by Fire." Medical Economics. March 19, 2001, 78(6): 57-8, 61.

(2.) Anderson, RE. "Outcomes of Medical-Malpractice Litigation." correspondence. NEJM June 5, 1997, Number 23, 336:1680-1.

(3.) Weiler, P.C. A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation. Cambridge, Mass. Harvard University Press, 1993.

(4.) Brennan, "Relation Between Negligent Adverse Events and the Outcomes of a Medical Malpractice Litigation." NEJM. December 26, 1996, Number 26, volume 335:1963-67.

(5.) Kohn L., et al. Editors, To Err Is Human. committee on Quality of Healthcare in America. Institute of Medicine. National Academy Press. Washington, DC., 1999.

(6.) Weiler, P.C. "Proposal for Medical Liability Reform." JAMA. May 6, 1992, vol. 267, No. 17.

(7.) McBride, D. "Malpractice Claims and the Quest for Perfection." Minn Med. Aug. 1999, 82(8): 46-8.

(8.) Moerbe, C. "The Personal and Professional consequences as Experienced by the Female Physician who has been Sued for Medical Malpractice: A Qualitative study." http://www.stmarytx.edu/acad/chs/moerbe.htm.

(9.) Kubler-Ross, E. On Death and Dying. New York, Macmillan Press, 1969, p 42.

(10.) Bounds, JA. "Medical-Legal Issues Facing Neurologists: Introduction to Notification, Deposition, and Court (A primer for the defendant physician)." Neurologic Clinics. May 1999, volume 17, number 2.

(11.) Ely, J.W. "Malpractice Claims Against Family Physicians: Are the Best Doctors Sued More?" J Fam Pract. Jan 1999, 48(1): 23-30.

(12.) State Medical Society of Wisconsin, http://www.wismed.org/councils/support-prgrm.htm.

(13.) Christian Medical Association, malpractice support ministry. CMA, Bristol, Tenn.

(14.) Texas Health and Safety Code; section 161.031-032. 2001.

(15.) Malpractice Support Tapes, The Christian Medical & Dental Associations, P.O. Box 7500, Bristol, Tenn. 37621

RELATED ARTICLE: Stages of Emotional Response to a Medical Malpractice Suit

(1.) Shock The physician is stunned. Often a case involves a patient in whom the physician invested considerable effort and concern. "How can this be happening?" the physician asks.

(2.) Denial There is a brief time where the physician regards the notification of a lawsuit as if it were not real. "Perhaps this will go away."

(3.) Isolation Often legal counsel tells the physician to not discuss the suit with anyone. The resulting isolation is very difficult.

(4.) Shame This response seems unique to physicians. The shameful reaction has nothing to do with the error.

(5.) Fear "What will this mean to me, my career, my reputation, and my finances?"

(6.) Anger "How could he (the patient) do this to me when I worked so hard for them?"

(7.) Depression The depression can range from subtle to clinically severe.

(8.) Resolution Although a resolution usually occurs, physicians often make career-altering decisions following a malpractice suit, ranging from behavioral change to the cessation of practice.

Functions of the Malpractice Support Committee Member

What committee members do.

Provide emotional support of a peer and friend.

Furnish information on the expected course of a lawsuit.

Provide insight on expected emotional and personal and professional impacts of a lawsuit.

Encourage the physician, especially during the difficult stages of a suit, such as the initiation of discovery, depositions, mediation and trial.

Maintain utmost confidentiality.

Discourage overreaction and dramatic practice changes such as over-testing, over-consulting, over-selecting and over-treating.

What they do not do.

Bolster defense or give legal or "expert" advice

Conduct peer review or case review.

Become a physician to the sued physician. (The sued physician is encouraged to have his or her own physician and refrain from entering a doctor-patient relationship with the committee member.)

Make any reports, formal or informal.

Make judgments about innocence or guilt.

Carl E. Couch, MD, is a board certified family physician and founder of a group called Family Medical Center at Garland, Texas. This group of eight suburban Dallas family physicians became the first physician group acquired by Baylor Healthcare System in 1994. Now named HealthTexas Provider Network, the group has grown to 270 employed physicians. It is owned by Baylor Healthcare System and governed by the physicians. Couch can be reached by phone at 972/272-4244 or by e-mail at [e-mail].

Stan Thiebaud, JJD, is a founding partner of the firm of Stinnett, Thiebaud and Remington. His practice represents a wide variety of clients in medical malpractice defense litigation. Thiebaud has more than 15 years of experience representing physicians and dentists, allied healthcare providers, hospitals, healthcare educational facilities, outpatient surgical centers and nursing homes. He can be reached by phone at 214/954-2226 or by e-mail at [e-mail].