Although malpractice claims are a completely predictable hazard of medical practice in the 21st century, medical training rarely addresses, let along confers immunity from the harmful effects of malpractice litigation. Here is what you need to know to begin to transform the experience.

The impact of a medical malpractice suit on the physician, and on his or her family, produces the symptoms of medical malpractice stress (MSS).

The term “malpractice” is often a misnomer, as many – if not the majority of – suits, upon suitable investigation, are non-meritorious, mal-occurrences, mistakes cased by systemic errors, or harm associated with disease or illness processes. Because of the stigma associated with negligent injury, intense shame and negative consequences accrue to sued physicians. This reality alone behooves us to find alternatives to a current system that is not a sensible mode of compensation, or a valid and effective strategy for maintaining or improving medical care. Comparisons of medical malpractice and other personal injury awards were three times as high as in motor vehicle cases (Bovbjerg, et al, 1991). Physicians can find good data to support their claims that their status as victim is real.

Physicians who are sued usually perceive the claim as an assault on their own integrity. Sued physicians report reactions such as the following, to describe the emotional roller coaster of the experience:

“Over the weeks, months, and years of the suit, I felt waves of shame and betrayal.”

“Very annoying and humiliating…an affront to my competency.”

“An embittering experience.”

“Now, I watch myself react to patients with a subtle distance.”

“I had a frantic, furious reaction; now I realize my practice is no longer worth the sacrifice.”

“It was the most stressful experience in my life. It reinforced my commitment to leave medicine.”

“No one, not even my close colleagues, offered to support me.”

“I never realized that my med mal attorney really didn’t care about me. It was just another case, and as long as it went on, the meter was ticking.”

Typical symptoms of the medical malpractice stress syndrome

In retrospective analyses of sued physicians, regardless of outcome of the suit, almost all report physical or emotional reactions. Common symptoms include:

• Isolation  Most feel alone in their efforts to vindicate themselves. This feeling of aloneness persisted, in spite of having an attorney on the case. Rarely did the sued physician seek support from colleagues. When queried, their colleagues admitted they feared reaching out to help or did not know what they could offer.
• Negative self-image  Regardless of the stage in the suit, many experienced a sense of defeat (grief, sadness and anger). During the suit – and after – sued physicians sensed less self-confidence, lower self-esteem, and recurrent bouts of shame. When we analyzed their feelings, many related a “re-wounding of their self-esteem” from medical training.
• Massive emotional impact  Most experienced anger, free-floating tension, increased negative moods, depression-like fatigue, frustration and violated sleep (insomnia). Many reports suggest depressive disorders lasting longer than two weeks. This litigation depression occurred in people who previously had not reported depression. Feeling an assaultive anger seemed to be the most common recurrent sensation.
• Anger syndromes  Many sued physicians, regardless of legal outcome, report anger clusters including unexpected anger outbursts, irritability (with seemingly slight provocation), frustration, and dull or negative affect, as well as physical symptoms. These included GI and chest pains mimicking MI symptoms.
• Fatigue syndromes  Many report changes in concentration, decreased libido, appetite apathy, and exhaustion or fatigue clusters in many arenas.
• Absence of symptoms  Some physicians report no symptoms. Little data is available on the characteristics of these “resilient” physicians. Further research is needed on this group, to determine whether there are “immunizing” factors (i.e., available peer support, shared disclosure by peers, previous claims, successful defense, etc.) which might offer protection from the MMS, or whether denial is the explanation for these outliers.

Results of medical malpractice stress

Changed practice styles  Many sued physicians report profound reluctance or even refusal to see plaintiff’s family, patients with seemingly high litigation risk, or those with poor prognoses. Many report a loss of empathy for some or even most patients. Most report increased obsessiveness in recordkeeping, an increase in frequency of ordering tests, including invasive tests or those with low likelihood of affecting the diagnosis. Many physicians decrease their performance of certain procedures, especially those where their own sense of control over the procedure is minimal or removed.

Changed life plans  A sense of professional isolation carries over to all other relationships. The litigation process typically drags on for about four years. Each stage in the suit may take place after weeks or months of inactivity, bringing with it the feeling of vicarious re-traumatization. As physicians complain or shut down about the bitterness they feel, they can become estranged from their natural support network. Without checking out their assumptions, many feel their significant others (spouses AND long-term medical partners) cannot completely understand or empathize with the deep violations associated with a malpractice claim. Ruminating about the case can tend to cause the “target” physician to detach from family, community, and from contributing to strategic practice decisions and involvement.

Typical emotional reactions to a claim of medical malpractice

If you are sued, expect to:

• Be personally angry
• Feel disillusioned
• Magnify self-doubts; question your own competence
• Experience persistence of negative feelings
• Feel isolated, frustrated, and unjustly singled out
• Experience guilt even if your performance and professionalism were faultless
• Experience symptoms or episodes of illness or depressive affect
• Lose some ground in your practice, although rarely permanently

Don’t expect:

• Compassion from colleagues, especially if they have not yet been sued
• Immediate understanding from family, friends, and partners
• Support from administrators, if insurance may be jeopardized or more parties brought into the case because of your defense
• A change of heart on the part of the plaintiff or plaintiff’s attorney
• That your attorney will just handle the case with you taking a back seat

Mechanisms for Successful Management of Medical Malpractice Stress

1. Use of support/self-help groups

Some in the medical community have recognized a need to deal with and reduce the isolations, negative emotional consequences, and costs of ignorance about the lessons of litigation. They have begun support groups that foster mutual aid, discussion in a safe environment, and true collegiality. Impetus for these groups came from patient-inspired support groups and the initial efforts of the Illinois and Pennsylvania Medical Society pilot programs on litigation stress support and education.

Support groups are not widespread, but may be found in local or state medical societies, individual residency programs, hospital wellness/“Balint” group programs, or in employee assistance programs. Advantages of self-help/support groups:

• Physicians are given a sense of some emotional security – even when they perceive their practice to be falling apart, or perhaps experience trial in the press.
• The fear of financial insecurity is lessened.
• Successful role models are provided in the group. Valuable advice and insight, i.e. “I have been there and survived”, is provided by group members.
• There is an opportunity to establish a new network of friends to replace those who either shun or who have been advised not to speak with the sued physician. Support groups can provide the physician with an emotional outlet, as well as a way to positively channel the negative energy by speaking with and helping others. Although attorneys will caution against sharing details, they may either be unaware, or fail to suggest how priceless it is to share feelings surrounding the case.
• Groups confer an educational forum. They provide some aspects of education and coaching on litigation, legal processes and arcane requirements, family stress, and individual coping skills.
• When family members are permitted and encouraged to attend, self-help groups offer support to all involved.

2. Establishing a Personal Survival Tool Kit

Successful coping with medical malpractice stress requires developing and practicing the following attitudes and activities.

• The ability to distance your core identity from both the suit and the process.  Recognize that you are only an actor involved in a drama, which is not of your making and not under your control. The summons and the legal process are scenes in a legal action, the arcane script written by long dead “poets”, and only part of your professional persona is (involuntarily) involved. Other facets of your personal and professional identity need to be untouched, but usually are offered as a kind of sacrifice. The attitude, “I will not allow the intrusion, and I will not give away my power (my self-esteem),” is crucial in successful coping.
• After assuring yourself that your legal team is competent, leave the legal maneuvering to them. You will not have time to learn to be an expert in malpractice law. Nonetheless…
• You must schedule time for you and your legal team to work on whatever is necessary to build and conduct a strong case. This may require reducing your patient load or shifts worked during certain phases of the case.
• After the initial shock wears off, do not allow yourself to dwell on or ruminate about the case. Instead of obsessing, work with your team, but delegate to them and stay connected to and present for the most important parts of your life.
• It is imperative that you add more buffering (support) to your life during this period. Please ask for support from colleagues beyond your family, even though it requires risk-taking. There is no toxic dose of support, counseling, or coaching during the stress of medical malpractice litigation.
• Remind yourself frequently that the threat of litigation is a well-established occupational hazard of practicing medicine. Physicians prevail in over 60% of cases. In the long run, the suit itself most probably will not harm you irreparably, and will probably teach you something useful. The suit will be a substantial distraction in the short run. The trick is to find the learning during the process.
• We believe you need to maximize pleasurable downtime activities during this experience. It has been shown that the risk of a second malpractice claim in the early period after learning of the first is high. This is believed to be the result of stress-related behaviors. The strain of a malpractice case can be taken as a prescription for more ease-producing activities.
• Use reframing techniques to maintain a positive perspective on the stresses of the litigation experience. For example, preparation for testimony before a jury can teach you to improve your ability to communicate with families or audiences.
• Regularly ask, “How can I use this crisis to enhance my survivorship skills and techniques?” Are you pleasure deficient? Increase your pleasure-producing experiences. These experiences are the internal pharmacy of your brain. (Read Healthy Pleasures by Robert Ornstein, PhD, and David Sobel, MD, 1989, Addison-Wesley.)
• If you continue to experience serious anger and distress, concentrate on what needs may be unmet. Are you exercising? Boxing might feel very appropriate. Do you feel symptoms? Get that long overdue physical. Anxiety, insomnia, or symptoms of depression? Use this opportunity to get counseling for one of life’s most stress-provoking experiences. Take time to rest more, play more, treat yourself kindly, count your strengths and accomplishments, etc. Self-care is now a priority, not a luxury.

3. Specific Do’s and Don’t’s

Do share the burden:

• With your medical malpractice carrier

1. Notify them of any potential claim, in accordance with your policy.
2. Notify immediately of any subpoena, contact by an attorney, or request for records or review of a case in which you participated.

• With your attorney

1. Know the case thoroughly, and provide all the details you can from the outset.
2. Don’t conceal anything, and DON’T CHANGE ANYTHING in the documentation – it is a surefire way to lose your case.
3. Ask the attorney questions about his/her deposition and trial tactics, and those they anticipate from the plaintiff.
4. Insist on careful preparation before deposition and testimony.
5. Insist on obtaining the best witnesses on your behalf.
6. Attend as many depositions and courtroom proceedings as your attorney allows, so that you will be informed, show your concern, and remind the plaintiff that you are concerned and monitoring their truthfulness.
7. Answer your own interrogatories (with the help of your attorney); read before you sign all documents; and request and retain copies of all documents and correspondence.

• With your family

1. Tell them you’ve been sued.
2. Share your pain and feelings, and ask them for support through the ordeal.
3. Ask them for their suggestions for dealing with the stress involved, and for remaining close during the process. If you have been emotionally unavailable prior to the initiation of the suit, ask for forgiveness and work at fostering intimacy. Recommitting yourself to your family can become a gift from this trauma.

Don’t share with others outside this circle.

• Avoid the temptation to speak to others (about the specifics of the case) involved in the case, no matter how peripheral. Nearly every discussion you have about the case is discoverable (you must reveal it in court) unless privileged (see below).
• NEVER answer questions made by phone, or posed by anyone associated with the plaintiff: family, attorney, or medical malpractice company.

Do strongly consider sharing

• Feelings with a counselor – legally protected/privileged communications are possible with lawyer, clergy, physician, professional counselor or therapist.
• Feelings with your journal or tape recorder, a support group, or via art or writing.

Do consider hiring your own attorney/co-counsel:

• If your attorney advises that a settlement or award might go beyond the policy limits.
• For a second opinion if you feel that your attorney is not prepared to deal with your case effectively, or does not have credentials in medical malpractice defense.
• If you feel that your counsel doesn’t hear your concerns, prepare you adequately for deposition or trial, or clearly explain in response to your questions.

The Mantra for Medical Malpractice Stress

By caring for yourself throughout this crisis, which is a predictable event in the career of any practicing physician in our time, you will become a stronger person, and a model for colleagues who will endure similar stress in the future.

Homework

• Write down as many reasons as you can why you (or others who honestly know you) know you are conscientious, competent, compassionate, and a fallible human being.
• Verbalize aloud, in a private space, why absolutely no one can take away your achievements.
• Affirm that you are a survivor. Affirm your positive qualities. It is now permissible to connect with your survivorship qualities.
• Please share with others and let us know of further steps that help you personally to counteract the distress of the litigation experience.
• As you acknowledge and then transcend the ordeal, consider helping others as a peer counselor.

Louise Andrew, MD, JD

John-Henry Pfifferling, PhD

Center for Professional Well-Being

Durham, NC

919-489-9167

www.cpwb.org