Damian McHugh, MD, an ER physician, received a certified letter in the mail, which immediately got his attention. He was being sued for malpractice. Receiving that kind of news “brings everything you have ever done or achieved since high school into question,” he says.(1)
One in three physicians will experience a similar situation during their professional life. In fact, a typical doctor spends 11% of a 40-year career with an open, unresolved malpractice claim.(2) The reality is that a lawsuit is inevitable, especially for physicians who conduct procedures. These physicians must be prepared to treat litigation in the same manner as they do other professional hurdles.
FIRST THINGS FIRST
Knowing who to talk to is one of the most essential points throughout the process, from beginning to end. Therefore, it’s critical to check with your liability carrier and attorney for crucial “do’s” and “don’ts.” Take notes. The information you are given is important and will be referenced throughout the litigation process.
Remember that communication with anyone other than your attorney, counselor, rabbi, or priest cannot be considered “privileged” and may be “discoverable,” which means the person you speak to may be called upon to repeat that conversation in court. That is why it is essential to establish confidential resources with whom you may speak freely.
This doesn’t mean you can’t talk to anyone or express how you feel; however, with every conversation, consider the boundaries and avoid the temptation to discuss the case’s details with everyone.
STEPS FOR COPING
The first step in dealing with potential litigation is self-awareness and acknowledging how you are personally affected. You may experience physical symptoms, including increased heart rate, tense muscles, defensive posture, and racing thoughts.
It is also important to be mindful of your emotional responses and use that recognition to determine constructive methods of expression. We may experience effects similar to those described in Elisabeth Kübler-Ross’s 5 Stages of Grief: denial, anger, bargaining, depression, and acceptance.
These stages of grief can be seen as comparable to those of your response to any traumatic event, including being accused of malpractice. Consider the five stages of emotions:
Denial. Feeling numb is most typical in the first few days of a trauma. Some people act as if nothing has happened, allowing themselves to continue daily routines as they avoid accepting the truth.
Anger. Anger can be directed at life (“it isn’t fair”), other people, and even ourselves.
Bargaining. The speculation, self-negotiating for our future, and “what-ifs” can be endless and serve no purpose. This stage can also be viewed as a buffer to grief or sadness as we move through various “if only I had…” scenarios.
Depression. We are sad and often lonely, isolating ourselves while trying to cope with the loss.
Acceptance. With time and counseling, accepting the circumstances can become palatable. Acceptance can come in waves, sometimes eliciting feelings of relief and sometimes feelings that nothing will ever be right again. As time passes, pain eases, and the situation is easier to accept.
Survival is our strongest instinct. While we may never recover completely, we can recognize and deal with the process with valid emotions that help us cope and not put our lives on hold. We continue to move forward, whatever that means.
STRESS, ANXIETY, AND FEAR
Our minds and bodies respond to our interpretation of the world. The mental response might be depression, anxiety, and a negative perspective of the world.
Under stress, we may be angry, unable to focus, defensive, frustrated, and irritable.
Stress can also cause physical illnesses, such as substance abuse, ulcers, and insomnia. The best approach is to acknowledge these issues and emotions and respond in a healthy and constructive way.
A few options are:
Realign the body and take deep breaths to reset the nervous system.
Practice mindfulness with deep breathing and physical exercises; meditation can be a guide to being more present and attuned to emotions.
Cultivate self-awareness to recognize anger and pause before responding with more thoughtful and positive answers. As you are able to manage and control a little more of your everyday life, recognize cues and take the time to select the most appropriate response.
If you recognize a challenging situation on the horizon, prepare for it, select the most appropriate response, and avoid the negative reaction that otherwise might occur. Each time you do this, you improve your ability to make the best decision.
Keep a journal. Reviewing entries allows you to reflect on your progress.
Celebrate even small victories. Celebration reinforces your commitment and motivates you to continue toward a positive future. It builds confidence and contributes to a positive mindset. Even small victories can remind you that although this process will take time, you can get through it.
Every step forward is a step in the right direction.
PRACTICE SELF-CARE
Some days will be just plain hard to navigate. Let your survival instinct kick in, and allow yourself to be the No. 1 priority. This will take constructive and realistic timing; don’t expect too much of yourself. Simply stay on an even keel.
The more honest you are with yourself, the easier it will be to transition to a more positive day and outlook and accept challenging situations.
Anything can be overwhelming until this stressful legal battle is over. You are constantly absorbed with the case in one way or another. Try to compartmentalize those issues and forget them until the need to deal with them arises. This way, you will not be reliving it over and over.
Take advantage of downtime to practice calming techniques such as meditation and deep breathing. Or participate in physical activity or exercise to regain your composure and clear your mind. Any break is good, even if it’s just for a few minutes.
Your Family
Strengthen your already-established healthy relationships and protect them to the best of your ability. Physicians who have been trained to feel infallible need that support.
Talking with your family about the possibility of legal action is vital. Opening up may be difficult if this honesty goes against customs and behaviors that are part of your heritage. Regardless of how and at what level you choose to share, remember you do not have to share information about the case. Still, expressing your feelings and recognizing how this situation will affect your life and probably theirs is important. Sharing “unprivileged” information and circumstances is perfectly fine without divulging the clinical details.
Opening up to your family prepares them and eases your burden; you can approach the problem together and not feel alone. As simple as this sounds, ongoing discussion of the hard topics can actually bond the family and provide that much-needed support. The most important thing is that you talk to someone.
SECOND-GUESSING COMPETENCE?
One doctor told me that the stigma of a malpractice suit is painful, but physicians must somehow rise above the challenge. McHugh shared how challenging it can be when he sees a patient with the same diagnosis for which he was sued.
As a physician, you must stand back and look at everything objectively. Avoid seeing every patient as a possible liability. Recognize that you have worked hard to be here; do not let one incident affect everything else for the rest of your life.
Your integrity is affirmed every time you work with a patient; your presence on the team affirms your value to the staff, the patients, and the community.
Resist feelings of vulnerability. Vulnerability is a quality we often attribute to our patients, but in stressful circumstances, we may feel vulnerable. We can resist feelings of vulnerability by affirming our ability to provide the expert care we were trained to provide.
We also must keep in check any unrealized personal biases. Our parents are responsible for teaching us culture and values, and we absorb conscious or unconscious biases along the way. As we honor our heritage, we respect those who honor theirs.
All patient care should be given without bias toward gender, race, religion, ability, orientation, or age. This is why it is so important to have consistent, healthy relationships with people who can help us maintain positivity and open-mindedness.
KNOWLEDGE IS POWER
Reduce the fear of the justice system by becoming as familiar with it as possible. This is a time when gathering information will truly benefit you, helping you understand what is happening and what to expect. McHugh suggests asking yourself, “If I were standing in front of a judge, what evidence would I need to defend what I’m doing?”
He also recommends “familiarizing yourself with every aspect of the case while also letting the attorney take charge. Prepare for meetings with your attorney and take on an active role in your defense.”
As always, first, speak with your liability representative and/or other professionals who can help you fine-tune responses.
As your life changes, it affects your colleagues and coworkers as well. This can include scheduling for patient care. If you need to pull back on your schedule, determine how you can still serve your patients without adding extra visits or procedures to others’ schedules. You may consider working longer days or not accepting more patients. Again, many of these decisions can directly affect your peers.
Research your time first and then meet with colleagues to see what can be done to avoid hindering others with additional responsibilities.
PREPARE FOR EVERY POSSIBLE OUTCOME
A verdict for the plaintiff does not necessarily mean you were at fault, nor does dismissal reduce the stress and stigma of being sued. Regardless of the outcome, consider:
How will you tell people about the verdict and how it makes you feel?
How will you behave without appearing defensive or guilty in situations requiring an explanation?
When the fact that there is a lawsuit becomes public knowledge, what will you say to those who comment?
How will you act toward the patient or the family who brought suit?
Envision you are sharing the verdict with people and what you will say. Picture a scene in your mind. It will help you be realistic as you plan your future.
MOVING FORWARD WITH POSITIVITY
Despite your best efforts, you will probably experience setbacks or relapses when old, comfortable patterns return. The key is not to push yourself. Starting with something small can make a huge difference. For example, if you’re having trouble sleeping, go to bed one hour earlier, create a new routine, and give yourself a head start on the next day. Once you have achieved one thing, move on to something else. The key is continual progress. Approach these moments as an opportunity for improvement and growth.
Begin each day with intention. It can be simple or complex, but whatever starts your day and wherever you prefer it to begin must be with the most positive outlook.
If you create a positive setting for your day, we can deal with anything that comes your way. Read, write, listen to music, or focus on achieving a goal for the day.
Speak with peers and colleagues who may have experienced litigation and are willing to share their experiences; however, remember that “privileged” information is not to be shared. Sharing your feelings about the legal action validates your presence and worth, as other physicians will tell you they have experienced the same emotions. The camaraderie and bond can be instant and long-lasting.
On a more concrete level, check with your liability insurance company and state medical societies, which may, incidentally, sponsor support groups. If there isn’t one in your area, maybe you can start one.
You are building your future with all of its possibilities. This is about the life you are creating, not the past. Creating that core group of people with whom you can share goals and progress provides valuable perspective and insights.
Honesty is what you need from this group of family, friends, and colleagues who will help you recognize what you don’t see and offer suggestions for coping with your situation.
Take time to decompress. Find the awareness essential to realign your thoughts and perspective. This is a positive and productive way to approach the required healing. The goal is to maintain a constructive and confident life. The common-sense approach I have heard from so many physicians still holds true: have a healthy diet, exercise, and get enough rest.
One physician said, “It’s important to actually make a plan for preserving your own health, particularly in the face of stress such as malpractice. Caring for yourself is often overlooked, yet essential prerequisite to your caring for others.”
This extra TLC is deserved and needed.
Physicians make decisions every day that affect lives — sometimes life or death. Every profession has its stresses, but physicians have their unique kind of stress, much of which is the result of patients sharing their deepest thoughts and most intimate concerns.
Physicians must take care of themselves to take care of others and maintain their patients’ trust.
YOUR VALUE AND WORTH
McHugh had this to offer: “You have patients. You help heal … Serve your patients and maintain healthy relationships with those around you.”
I was presenting at a conference and had the opportunity to see Bennett Omalu, MD, MBA, CPE, the pathologist on whom the movie Concussion is based. He had an impactful presence, but one of the things I remember most is him screaming, “There is only one me!” He had to prove his value because nobody wanted to listen to him. And that’s what I would ask of you: Realize your value and keep moving forward.
Your life and achievements are not defined or determined by one lawsuit.
References
Personal conversations with Damian F. McHugh, MD, FACEP, Senior Director of Physician Engagement, Curi.
Seabury SA, Chandra A, Lakdawalla DN, Jena AB. On Average, Physicians Spend Nearly 11 Percent of Their 40-Year Careers with an Open, Unresolved Malpractice Claim. Health Affairs. 2013;32(1):111–119. https://doi.org/10.1377/hlthaff.2012.0967