By Dr. Ken Broda Bahm:
There was the childhood spent being a good student, then the hard years of college, and the even harder years of medical school, then residency, then years of building your expertise and your practice. Then came the event that many said was inevitable, but which you still thought you might avoid: You were served with a lawsuit. That set off immediate and long-term reactions: stress, doubt, uncertainty, and fear. And one thing we can count on with the American legal system is that it is drawn-out, so doctors will need to find ways to deal with that sword over their heads — to live, practice medicine, and prepare for an assist in their own defense — under that constant threat.
The psychological toll of that threat needs to be fully appreciated. A current book on malpractice in psychiatry, contains a chapter entitled, “The Stress of Being Sued” (Metzner & Gender, 2022), written by two members of the Department of Psychiatry at University of Colorado School of Medicine. The authors call it “Medical Malpractice Stress Syndrome,” though I prefer “Physician Litigation Stress Syndrome” (because it is litigation, rather than malpractice, that is causing the stress). Either way, doctors facing actual or potential suits face an increased mental burden combined with a pretty narrow latitude of control. That can set them up for the kinds of pressure that attorneys and others working on the case need to understand and address.
Physician Litigation Stress
The general symptoms of lawsuit driven stress for doctors were documented only in the early 80s, driven by research led by Sara Charles and others (1984). The short-list of documented affects include the following:
- Depression
- Anger
- Frustration
- Fatigue
- Shame
- Loss of enjoyment of life
- Social withdrawal
- New or aggravated physical illness
- Insomnia
- Rumination
- Difficulty concentrating
- Distrust of patients
- Avoidance of high risk cases
- Defensive medicine
Requires a Sensitive Response
Seasoned defense attorneys can be tricked into tacitly assuming that a defense is all in a day’s work. It is normal, expected, and controllable. Only to many physicians, it does not feel like any of that. We can intellectually know that a lawsuit is normal, not necessarily justified, and not personal, but it still feels personal. For lawyers, it is worth talking about it with your clients, addressing not just the legal course of the case, but the psychological path as well. There are many specific messages that can go along with that counseling, but for me, there are three big ones.
1. Control What Is Within Your Control
There is a great deal in litigation that you don’t control: past actions, the plaintiff, opposing counsel, their experts, the court’s schedule, the judge’s rulings… But here’s what you do control: Your own role and your own testimony. Work on being an asset to your defense attorney, and when it comes to your testimony in deposition and trial, work on making it clear, accurate, helpful, and effective. Also, work on your own comfort in delivering it.
2. Reframe It
Accept that litigation is a normal part of the American medical process. For many patients, it is nothing personal, they have just been led to believe they would be leaving money on the table if they didn’t sue. It is business. Another aspect of the process that can be reframed is the doctor’s testimony. Ultimately, for the physician, it is simply about saying what you did and why, and that is something you have been preparing to do since your first day of medical school.
3. Rely on Your Support System
Being in litigation can feel isolating, but you aren’t alone. The defense attorney is in your corner, so give her your full cooperation as well as a positive attitude. It can make a big difference. Your team also includes your insurance representative, potentially a counsellor or litigation consultant, as well as your family and colleagues. While you shouldn’t get into factual discussions about the case with that last group, you can rely on all of those groups for general support through the process. There is also the support system to be found in your own habits of self-care: eat well, sleep, exercise, spend time on enjoyable activities, and try to focus on the values that brought you to your practice in the first place.
Final Note: It’s Not Just Doctors
The people who become doctors tend to be highly driven perfectionists. They can carry an exaggerated sense of responsibility, and that can turn against them in the form of heightened levels of self-doubt. They are used to having high levels of control, and in the litigation process they suddenly find themselves with very little control. All of that can make doctors uniquely vulnerable to litigation stress. But there are other licensed professionals — engineers, accountants, and lawyers — who can also be accused of not performing the most basic responsibilities of their job. Or more broadly, any fact witness who is being called out or criticized (and that can include both plaintiffs and defendants) can face similar forms of stress.
Litigators, you might be in this business because you love it. But don’t forget just how stressful and off-putting it can be for everyone else, and adapt to that.
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Other Posts on Medical Malpractice Litigation:
- Professional Liability Defense: Put It in the ‘Judgment Zone’
- Med-Mal Defendants: You Want a Jury of Educated Legal Skeptics
- Expect Some Favoritism for Those on the Front Lines
Charles, S. C., Wilbert, J. R., & Kennedy, E. C. (1984). Physicians’ self-reports of reactions to malpractice litigation. The American journal of psychiatry.
Metzner, J. L., & Gendel, M. H. (2022). The Stress of Being Sued. Malpractice and Liability in Psychiatry, 79-84.