Part 2: Mitigating the stress of a lawsuit: process, prepare, parley, and prioritize.
The first part of this three part article looked at the statistical occurrences of medical malpractice lawsuits over the course of a physician’s career, and the fundamental contradiction between the usual results of a malpractice lawsuit (~90% dismissed or settled) versus the emotional effects it can have on the doctor being sued (~70% stated that it was unpleasant, stressful, and difficult to work through). The article also briefly touched on how just the act of getting sued, or witnessing a suit against a colleague, can affect how a doctor treats his patients going forward.
This article will focus more on how to mitigate the stress that a lawsuit can bring.
Process the Statistics
We read a wonderful article on KevinMD written by David P. Michelin, a doctor who had been sued, tried, and eventually completely exonerated in the courtroom after a two-and-a-half year process (most malpractice suits are resolved before trial). Dr. Michelin states that the average doctor will spend nearly 11 percent of a 40-year career with an open malpractice claim. In fact, a study concluded that 75% of all doctors in low-risk specialties and 99% of all doctors in high-risk specialties will be sued at least once in the course of a typical 65-year career. Once we understand that getting sued is almost an inevitability, an inevitability that happens to almost every doctor in the course of an average career, we can examine the emotional effects of getting sued without the emotional burden of wondering “Why me? What did I do to make this happen?”
Instead of asking why, perhaps a better question to ask would be when. “How will I respond when and if a claim occurs?”
So now that we’ve looked at the statistics, and understand the reality of the situation, let’s take a look at Dr. Michelin’s case, and how he prepared to defend himself. He states, “Treat the litigation as another necessary part of your career, and take the same approach as you would toward other hurdles like a board exam. Be meticulous. Go over your chart. Familiarize yourself with every aspect of the case…and take an active role in your defense.” Familiarizing yourself with all the details of the chart is important, but one must remember to never alter anything in the medical record to remain defensible.
In part 3 of this article, we are going to look at some detailed advice given by a claim specialist at PracticeProtection, Chris Dewald, and he also suggests that preparation is key. A doctor facing a lawsuit should contact their medical malpractice insurance carrier straight-away, so that both the insurance carrier and the doctor can collaborate and determine the appropriate course of action, including requests for records, discovery of legitimacy of the claim, deposition assistance, as well as other information which will aid in preparation.
Dr. Michelin goes on further to discuss how the plaintiff’s attorney will try to belittle you, anger you, and make you question yourself, but reminds doctors that “no one in the room knows the case better than you. Approach your testimony the same way you approach a talk at a conference—you are the expert, the master of that topic.” Once again, preparation is key.
Deposition assistance was of particular importance to Dr. Michelin. He states, “I referred to my notes from the (mock deposition) prior to my deposition and prior to going on the stand during the trial. This was a huge stress reliever. You can’t lose your cool on the stand, and falling back on those techniques helped me stay calm.”
Knowledge and preparation are perhaps a physician’s most important assets in not only preparing for trial, but also for maintaining acceptable levels of stress during this lengthy and difficult process.
Parley with your Support Network
First it is important to note that lawsuits must be handled very delicately by the persons involved. As Dr. Michelin states, “To ensure defensibility, physicians will wisely avoid discussing an ongoing claim with anyone other than their claims specialist or defense attorney.” However, he goes on to state that while you ought not to divulge critical details of a current claim to family members, friends, or colleagues (for a variety of reasons from potential HIPAA violations to fear that your words will be used against you), you can and ought to discuss with them about how it is affecting you emotionally. This should be done in a delicate and professional manner which does not divulge details of the case, but rather focuses on your mental state. “This can help you overcome feelings of isolation that often accompany a malpractice claim,” he continues, “Doctors often have a tough, go-it-alone mentality. But this is the bottom line: Don’t go into a shell. Talk to somebody.” Don’t forget that your colleagues have probably been in or witnessed a similar situation, and can lend you a sympathetic ear.
While a medical malpractice claim brings uncertainty, fear, and potentially calls into question a physician’s skill and reputation, it does not need to happen in a vacuum. A doctor discussing the particulars of her case with loved ones and colleagues would be unwise, but discussing how the circumstances make her feel can be a useful tool in mitigating the stress that accompanies any lawsuit.
Dr. Michelin goes on to state that doctors’ stresses are unique to their profession. “Faced with difficult decisions—sometimes those that are life-and-death—(patients) trust our expertise and rely on us to always take the right action…I often need to tell patients that their lifestyle decisions are harming them…and while many of my patients do well, I need to tell some of them that cancer will ultimately take their life.”
But mixing the stress of a medical malpractice claim in with the rest of those daily stressors, the situation that can quickly spiral out of control, even for the most level-headed professional. He continues, “Do whatever you need to do to unwind. This might be physical exercise…or it might simply becoming more engaged in other personal interests. If you’re not blocking out time to decompress, you’re doing a disservice to yourself, your case, and your patients.”
Dr. Michelin was exonerated after two trials spanning two and a half years. “By adopting certain strategies,” he concludes, “I was able to mitigate many of the negative effects so many doctors experience. Litigation will inevitably be an intense and challenging experience, but you can avoid it becoming a crisis. You can still maintain your self-assurance, keep your relationships intact, and continue to provide the vital medical care on which your community relies.”
Some doctors have not done as well as Dr. Michelin, regardless of whether they successfully defended themselves or not. This slide from Medscape in which 1400 physicians were surveyed about their malpractice lawsuit experience shows that while about two-thirds did not have any long-term emotional or financial effects from the lawsuit, another one-third reported treating their patients differently afterward, or left the practice setting. There have been cases of doctors exhibiting high levels of depression and anxiety, practicing defensive medicine, becoming victims to “burn-out,” and even in the most extreme circumstances, committing acts of self-harm.
But by taking a very proactive approach from the minute that letter of intent arrives, a physician can better protect himself, not only from the tangible effects of the lawsuit itself, but also from the emotional stress that accompanies this trying time.