Coping with bad news: The physician executive's role in a lawsuit. (Doctors, Lawyers and Lawsuits).
MOST PHYSICIANS experience some disturbing symptoms when involved in a malpractice suit.
Regardless of the outcome, the practice will inevitably be affected. Physician executives should learn to recognize the usual signs and symptoms that accompany malpractice litigation.
Professor Sara C. Charles, MD, of the University of Illinois psychiatry department in Chicago, writes sensitively and knowledgeably about the stress of being sued. Charles herself was a central figure in an unwarranted malpractice action.
As a result, she became avidly interested in the effects of malpractice litigation on physicians' ability to function. Her book Defendant is recommended reading for all doctors-especially those facing legal action. (1)
According to Charles, 96 percent of doctors experience some emotional reaction to being sued. The most common reaction is a cluster of symptoms associated with clinical depression:
* Loss of appetite and energy
* Decreased libido
Another cluster may surface as:
* Chronic headaches
* Feelings of constant inattention
* Gastrointestinal distress
* Insomnia or hypertension
Any or all of these will affect the quality of their work. This, in turn, may also affect the liability of the entire medical group you manage.
Sixteen percent of physicians in Charles' study experienced the onset or exacerbation of physical illness. The most commonly reported medical problems were coronary disease, hypertension, colitis and duodenal ulcer.
Beyond emotional and physical disorders, a medical malpractice suit may also result in destructive behavior, such as excessive use of alcohol, drug abuse or even suicidal ideation.
When formally served with a suit, the physician typically is stunned with disbelief. The accusatory language in the legal complaint often creates such profound anxiety that it grossly distorts what actually is occurring.
As reality sinks in, depression and disbelief are replaced by anger and resentment, which often translates into insomnia, increased depression and the cluster symptoms. These may last for a short period or persist until the suit is resolved-sometimes years later.
Because litigation runs a course that is often lengthy and unpredictable, there invariably occurs an ebbing and recurrence of the symptoms, which are triggered by any new development. Even the sight of an unopened envelope from the defense attorney or a call from the insurance carrier can cause an adrenaline rush for the sued physician.
The prospect of a legal deposition, not to mention a trial date, can acutely exacerbate the spectrum of symptoms. So assurances that the physician has the support and confidence of the group manager can make an enormous difference.
After weighing the facts and hearing the advice of legal counsel, the sued physician makes the ultimate decision of whether to go to court or settle.
Although physicians win many of the cases that go to trial, the unpleasant and disturbing prospects of what might occur during the deposition or trial distort the doctor's perspective.
Even when settling makes more sense for numerous reasons--and when the physician knows that settlement in no way represents an admission of guilt--there often remains a lingering sense of inadequate resolution.
Whatever the outcome, virtually all physicians who have been sued agree that their lives are never quite the same again. In some cases, the effects are so devastating that the physician abandons practice.
Why is the experience of being sued perceived so differently by doctors and attorneys?
Obviously, there is a crucial difference between being a defendant and being the counsel for either side. But beyond that, there are physician-specific factors that lead to increased stress during a lawsuit.
There are similarities in practice between the two professions.
Lawyers are trained to analyze a factual situation for fit within a legal theory, such as negligence. If the facts indicate negligent conduct, a lawsuit is filed and damages are determined.
A parallel can be drawn with the medical practice of a surgeon, for example, who excises a lesion, obtains a pathology report and performs a radical ablative procedure.
In both instances, weighing and measuring the evidence is conducted before the defining event--be it a lawsuit or surgery.
However, doctors must face and resolve doubts that may involve split-second life or death decisions. The nature of the medical profession requires caring for people, as opposed to upholding legal rights and principles.
To a lawyer a lawsuit is simply a familiar tool of the trade and nothing more. But to sued physicians, a lawsuit is an offensive, personal challenge to their competence, integrity and self-esteem.
Regardless of the suit's merit, the accusatory language of a complaint can demoralize even the most talented, capable and caring physician.
Loss of control and self-esteem
Generally speaking, medical education and training teach physicians to grow accustomed to leading the health care team. When faced with a stressful situation, the doctor is expected to address the problem and regain control.
But in the legal arena, the doctor is not in control. Guidance such as, "Don't worry. Just do what I tell you," from a defense attorney only heightens a physician's sense of anxiety, dependence and loss of control.
Doctors are trained to seek order out of chaos and identify patterns from random facts.
However, the litigation process is at times inherently unpredictable.
A suit may progress in fits and starts over several years, only to be dropped. Depositions, motions and trial dates may be postponed. A judge's actions or rulings may seem illogical; a jury may act capriciously.
All of these events can further fuel the defendant doctor's feelings of powerlessness.
A charge of negligence or incompetence also assaults one's sense of self.
According to Charles, a malpractice suit commonly engenders a subconscious sense of shame and guilt, eroding a doctor's self-confidence, sense of competence and idealism. This may produce differing manifestations that are linked to individual physicians' personalities and self-expectations.
The extent to which a lawsuit affects a doctor also depends on his or her coping capacity and psychological and social support systems.
One-quarter of the physicians who were sued report a sense of isolation from their peers. The defense attorney's universal advice not to discuss the case with anyone can only exacerbate internal conflict. Such advice, though necessary and appropriate, can magnify feelings of having to cope alone with the situation and being unable to share the emotional burden.
Unfortunately, most lawyers support the concept of not communicating with anyone for valid reasons. Anyone with whom the sued physician converses about the case is almost automatically subject to a subpoena.
One of the first questions the plaintiffs attorney will ask at the start of the deposition is, "Doctor, have you discussed this case with anyone?" Answering "no" makes you guilty of perjury. Answering "yes" will elicit a demand for names, dates and places. It will certainly involve that individual in the lawsuit.
Guidelines to help physicians cope
Here are four guidelines that you can share with sued physicians to help them deal with the emotional fallout from a malpractice suit.
1. Encourage your physicians to learn about medical malpractice litigation.
Suggest that they acquaint themselves with a lawsuit's likely sequence of events. If and when they are sued, the liability carrier will provide them with a detailed explanation of what is likely to happen.
The doctor should become actively involved. The physician should not hesitate to ask questions about what to expect. Understanding the likely events brings comfort.
Many physicians have been sued; if it happens to one of yours, certainly they are not alone. The higher the risk of the specialty that a physician practices, or the more seriously ill the patients are, the more likely it is that a doctor will be named in a suit.
If your doctor is sued, it does not signify incompetence. You know it and the carrier knows it. Often, the best doctors get sued. Eighty percent of all claims are closed in the doctor's favor. (2) If a suit does go to trial, chances are still four-to-one that the physician will be exonerated.
2. Reassert control.
Your doctor's involvement will, to a significant extent, lessen frustration and a feeling of dependence. It will enhance a sense of regaining control.
Encourage your doctor to educate the defense counsel about the case. Counsel may be a brilliant and experienced lawyer, but is not a doctor.
The physician should help the attorney understand the strengths and, more importantly, any weaknesses in the case. A responsive and cooperative role with the defense attorney helps in selecting expert witnesses who may make the difference between winning and losing the case.
Only by active participation can doctor and counsel devise strategies for the best defense.
The claims representative is also a valuable resource for providing information about the litigation process and helping your member feel in control. The physician should stay in contact with the claims representative of their carrier and not hesitate to call to check on the status of their case.
3. Reassess schedules and activities.
The stress and anxiety generated by a lawsuit probably will be compounded if your doctor attempts to sustain normal productivity standards and schedule demands. You should encourage adjusting schedules that will help decrease stress.
Suggest more teaching. Few activities are more therapeutic for a diminished sense of self-esteem than sharing one's extensive knowledge with students, residents or other physicians.
Encourage more structured leisure time. Being immersed in a hobby is helpful.
Health permitting, suggest the sued physician engage in aggressive aerobic sports, such as handball or tennis. (One policyholder took karate lessons, which he described as the most therapeutic activity he undertook while awaiting resolution of his case.)
Not only will the doctor's physical condition improve, but he or she will also find a socially acceptable method of venting tension and anger.
Let built-in adaptation mechanisms help restructure the physician's frame of mind.
In most instances, a physician who is sued must expend an enormous amount of mental effort to put the case out of mind. Remember, if the doctor can transfer that energy into performing their work attentively, competently, conscientiously and at a sensible pace, it will help to take their mind off the suit and increase self-esteem.
4. Urge them to become involved.
The rewards of contributing to medical or specialty society activities, hospital or community efforts that address the overall problem of professional liability and the need for tort reform can make a significant impact on efforts to cope with anxiety.
If the stress syndrome persists, discourage the temptation to self-medicate. Drinking or taking drugs will only make the situation worse. Instead, encourage the physician to talk with friends or colleagues who have been the targets of lawsuits and ask them to share their methods of coping.
However, caution the physician to not discuss specific aspects of the case with anyone other than their attorney or claims representative. If the stress is serious enough to affect the doctor's work, suggest a consultation with a psychiatrist or other mental health professional for specialized counseling and treatment.
Most importantly, encourage the sued physician to call on the carrier's claims or risk management personnel to assist them in all phases of legal actions related to malpractice claims. Most claims professionals understand, empathize and are excellent release valves.
Although all physician managers earnestly hope that their physicians will not experience a malpractice claim or the associated psychological and emotional problems that it brings, they need to recognize the classic signs of performance-affecting stress and how best to help.
You must urge your physicians to maintain a broad overview about the realities of contemporary medical practice. Don't allow them to lose their sense of perspective. Barring unlikely changes in our tort system, even the best doctor among your carefully selected group of physicians has a real probability of being sued.
If that happens to one of your group, your skill at intervening tactfully may guide them across the stormy waters they must cross in order to regain their footing and return to the productivity you expect of them.
Despite whatever feeling of isolation may haunt them, help them remember that they are not alone.
(1.) Charles, Sara and Kennedy, Eugene. Defendant. New York, The Free Press, 1985.
(2.) Medical Malpractice Claims Review, The Doctors' company, Napa, Calif., 2000.
Mark Gorney, MD, is medical director, chairman of risk management and executive vice president of medical services for The Doctors' Company in Napa, Calif. He can be reached by phone at 707/226-0399 or by e-mail at email@example.com.
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|Date:||Mar 1, 2002|
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