Surviving the malpractice storm

Chicago ER physician George Hossfeld was notified that he’d been named in a malpractice suit more than two years after he’d stabilized an acutely ill elderly gentleman and admitted him to the ICU.

Because his contact with the patient had been brief and he had provided appropriate care, Hossfeld assumed he’d be dropped from the case once the facts became clear to the plaintiff’s attorneys.

“A good percentage of the time when a doctor is named in a case, he didn’t even see the patient or was peripherally involved. You just wait to find out what’s going on.” In Hossfeld’s case, he waited five years to be dropped, only to find that ultimately he was on trial all alone and that the plaintiffs were asking for damages beyond his malpractice coverage limits.

“It wasn’t fair, but fair has nothing to do with it,” he says. “It was very surprising to me, but right and wrong have little to do with it. Even more stunning, quality of care has little to do with it.”

“I went through stages like someone with a terminal diagnosis—disbelief, anger, rationalization (of course I’ll be dropped…), and then almost grieving. I was anxious and irritable. I felt like my home and my kids’ college might be on the line. I thought, well, if it’s been this unfair to this point, maybe I’ll be found guilty.”

“I like to think of myself as pretty tough ER doctor,” says Hossfeld. “After my six-day trial, I was just physically and emotionally limp. I was so drained, I felt ready to pass out.”

And Hossfeld—like the vast majority of doctors who end up on trial for medical malpractice—had won his case.

How many providers have been sued?

Attorney Steven Kern is a principal with Kern Augustine Conroy and Schoppmann in Bridgewater, N.J. He has been representing doctors for more than 30 years. “Before that, I was prosecuting them for the New Jersey medical board. I’ve been on both sides,” says Kern. “If you practice for any length of time, the likelihood is that you’ll be on the wrong side of a lawsuit. It’s not a badge of dishonor; somebody just decided to sue you.”

According to a survey of almost 6,000 physicians recently released by the American Medical Association (AMA), more than 60 percent of physicians age 55 and over have been sued at least once. This statistic varies widely by specialty, however, with surgeons and obstetrician/gynecologists being sued the most, pediatricians and psychiatrists the least.

The positive news, also included in the AMA study citing data from the Physician Insurers Association of America (PIAA), is that in 2008, 65 percent of claims were dropped, withdrawn, or dismissed, 26 percent were settled, 4 percent went through an alternative dispute resolution process, and only 5 percent actually made it to trial. Of that 5 percent, the doctor won 90 percent of the time.

Devin O’Brien, senior counsel and managing attorney for The Doctors Company, a physician-owned medical malpractice insurance company with 46,000 member-customers, says physicians named in suits tend to focus on the long-term ramifications. “They’re usually not worried about the money. They have insurance,” says O’Brien. “It’s their professional reputation, that a report will go to the licensing board and the National Practitioner Data Bank, and that it will be out in the community.”

What is malignant synergy?

Forensic and general psychiatrist Thomas Gutheil has been involved as an expert in hundreds of med-mal suits over the course of his career. He likes to remind physicians that being sued does not mean they did anything wrong. “Litigation results from the malignant synergy of a bad outcome and bad feelings,” says Gutheil.

The case of Richard Roberts, a family physician who is also a professor at the University of Wisconsin School of Medicine and Public Health and president of the World Organization of Family Doctors, demonstrates that sometimes, an outcome doesn’t even have to be “bad” for a suit to be filed.

“As an intern, I did an OB rotation at Cedars-Sinai in Los Angeles. The first person you met with was the risk manager, even before you got your locker key or parking pass,” recalls Roberts. “She said, ‘You’ll get named in a suit during your first year,’ and she was right.” A patient with psychiatric problems claimed that a sponge had been left in her vagina following a difficult delivery. She felt “wronged”—even though Roberts had practiced good medicine—and she wanted $1 million.

This wasn’t Roberts’ first experience with the legal system. He’d gone to law school and rubbed shoulders with senators and presidents working on health policy issues while attending medical school in Washington, D.C. Roberts’ legal knowledge didn’t exempt him from the stress of being named in a suit so early in his career. “I was distraught and thought I must have made a mistake,” he says.

To this day, Roberts remembers the wise counsel he was given by his residency director. “He could see I was torn up. I was doubting my abilities, thinking maybe I wasn’t in the right profession,” says Roberts. “He told me there was no evidence, no harm, and that if this was the worst thing you do in your career, you’re lucky. He put me back together. I’d probably have become a policy wonk and bureaucrat had it not been for him.” The hospital settled the case for a couple thousand dollars.

What to expect when a suit is filed

 

Roberts says that, for a physician, being involved in the legal justice system is akin to waking up in a foreign country. “It’s like a patient being thrown into the health care system. You don’t know the rules or the language or the authorities,” he says. It helps to go in with your eyes wide open, knowing what to expect.

When a suit is filed, the progression of the case—though complex—is somewhat predictable. Spend time with your attorney at the outset to gain a clear understanding of each step in the process, how and when you’ll need to set aside time to be involved, and about how long the ordeal is likely to go on—although that’s often difficult to accurately predict.

Depending on the complexity of your case and where you reside, your case may be squared away within a year or two, or it may drag on for five or more years. “Some venues have ‘rocket dockets,’ but with more and more furloughs, things are not moving fast on the civil side,” says O’Brien.

Following a thorough fact-finding (“discovery”) process, your attorney will prepare you for deposition—testimony that may be used in court. “A deposition in a med-mal case is rarely a pleasant thing, but over-the-top plaintiff lawyers are unusual,” says O’Brien. There’s no need to be scared about going into a deposition, but make sure you’re prepared.

Kern spends a good deal of time working with physicians on their presentation skills before putting them on the witness stand. “I’ll take them through a cross-examination and be as mean and rotten as I can be and throw questions at them so they’re not caught unprepared,” he says.

Be ready to completely clear your schedule during the trial period, if your case gets that far. “Jury trials usually run at least a week,” says O’Brien. This is one reason that doctors sometimes elect to settle a case as the trial date draws near. The financial reality of being away from practice can, in some cases, prove to be untenable. “Physicians will say, ‘I can’t afford to be away…let’s look at settling,’” says O’Brien.

How to work with your legal team

If you are named in a suit, take comfort in knowing that most of the work will be handled by your legal team. “Doctors need to get involved from time to time,” says Kern. “Once you get past getting all the facts, it’s about what the experts have to say. That’s one of the most important elements of defense—you live and die by your experts.” Physicians are sometimes helpful in identifying experts for their cases but are not necessarily involved in this step of the process. Kern likes having his clients actively participate in their defense—up to a point. “When they start trying to be their own lawyers, it gets problematic, but good input is good input,” he says.

Roberts advises physicians to participate in their cases but agrees they should resist the urge to play lawyer. “You can become reasonably fluent in the language, but you can’t defend yourself,” says Roberts, making the comparison that a patient who has been through surgery is in no way prepared to perform an operation himself.

“It’s up to them how deeply they want to be involved,” says O’Brien. “My advice is that they should let the professionals deal with the case. It’s in the hands of someone who can do something with it. Decide what level of communication you’re comfortable with, and then try to put it out of your mind. Focus on your family, your practice, and things that bring you pleasure.”

Where you most certainly want to be involved is preparing yourself for deposition and trial. Review the facts of the case again, go over the latest literature, think about what the experts are likely to say, and generally be prepared to answer any question that’s asked. Don’t try to “wing it.”

Don’t talk about the case

“Don’t talk to your colleagues or your friends,” warns Kern. “Anything you say is potentially discoverable.”

Conversations with a therapist or psychiatrist (and of course with your own lawyer) are “privileged,” which means that the person you share information with cannot be called to testify in your case. Discussions held during settlement conferences may also not be brought up in court, should a case go beyond settlement to trial. “As far as a spouse, it depends on the state,” says Kern. “And privilege in many states does not survive divorce.”

ER physician Hossfeld recognizes the legal argument but doesn’t buy it. “It’s crazy not to talk to your spouse and friends,” he says. “Lawyers tell you not to talk to anyone except them, but that’s counter to everything we know about stress management,” he says.

Peter Moskowitz, M.D., is a professor of radiology at Stanford University School of Medicine, a certified coach, and founder of the Center for Professional & Personal Renewal in Palo Alto, Calif. He coaches physicians on career development, life balance, stress management, and avoiding burnout.

Moskowitz agrees that being told “don’t talk to anyone about the case” is detrimental to physicians. “I understand the legal reasons, but that’s the worst advice from a human standpoint,” says Moskowitz. “At a time when they are most vulnerable and going through emotional trauma, they’re denied the one thing they need most, which is human contact and support.”

Moskowitz contends that talking is therapeutic and doctors should seek out support from trusted family members, friends and colleagues. “They need a network of confidants who can listen to them vent, provide support, and offer empathy in a non-judgmental way.”

The bottom line is that you’ll have to weigh the risks and benefits of keeping quiet versus talking to select individuals. Get the facts about discoverability in your jurisdiction, listen to your intuition, and make a decision based on what you feel is best for you.

How to emotionally deal with malpractice

With his combined legal and medical background as a platform, Roberts speaks frequently to groups of doctors on matters related to patient safety and risk management. “I remind physicians that the probability is high that, during their career, they’ll be named at least once,” says Roberts. “Step back from it when you’re named,” he advises, acknowledging that that’s easier said than done. “Being a physician is not just a job…it’s who you are,” he says, pointing out one of the reasons it’s difficult for doctors to compartmentalize and keep a pending suit from bleeding over into every aspect of their lives.

Not being in control of the justice system timeline can be a major stress point for physicians, most of whom are used to setting their own schedules. To be told on relatively short notice that you have to block off two days for a deposition, or stop what you’re doing to gather additional information for the case, can trigger feelings of frustration, anger and anxiety.

“Sometimes nothing happens for months, and sometimes it consumes every minute of the day,” says Roberts. “You have to let go of that overwhelming desire to control things. It’s beyond your direct control.”

“Almost without exception, the physicians that I’ve watched go through this suffer terribly because of their own perfectionism,” says Moskowitz. Because of the way doctors are trained and conditioned throughout their careers, they come to believe that making a mistake is not an option, not something “good” doctors do. “One of the greatest traumas of a lawsuit is having to confront your own imperfection and forgive yourself, even when you’re not guilty of malpractice.” Physicians who are unable to shake feelings of guilt and shame when faced with a suit should consider seeking help from a therapist or spiritual advisor. “In that context, the issue of self-forgiveness can be addressed,” says Moskowitz.

From a day-to-day standpoint, Moskowitz says that physicians facing a long, drawn-out legal process should, first and foremost, take care of themselves. “There’s no question that litigation is the single most stressful experience a physician will have. To maintain composure and sanity, you must have a program to manage stress, including aerobic exercise three to five times a week,” advises Moskowitz. “People who are fit deal with stress better, maintain a calmer demeanor, and manage their emotions more effectively.”

“Eating healthy should go without saying,” says Moskowitz, who also warns physicians against the temptation to self-medicate as a way to cope with stress and negative emotions. “Having an extra drink or two every night may lead to abuse. Recreational drugs, gambling, compulsive sexuality—there is a risk of all of these things becoming habitual,” says Moskowitz. “Be aware of the dangers and emphasize healthy ways to manage stress, rather than allowing the unhealthy to take over.”

Having some sort of spiritual practice can be helpful, says Moskowitz. This might mean speaking with a clergyperson, practicing meditation, or setting aside moments each day for quiet reflection or prayer. Making time for fun and enjoyment is also a critical factor in getting through what may be years of litigation. “Get away from the lawsuit and maintain some semblance of a normal life,” advises Moskowitz. “Do whatever is fun for you—outdoor activities, reading, or spending time with your spouse or partner.”

Hossfeld credits his wife, Bernie, an emergency nurse, for keeping him grounded throughout his lengthy ordeal, making sure he got enough sleep and exercise and being willing to talk about the case for a while but then deliberately shifting their attention elsewhere. “Even during the trial, we’d go take walks while the attorneys were doing other things. I don’t know if I’d have made it through without her,” says Hossfeld.

The aftermath of the malpractice

Like aftershocks following an earthquake, doctors often experience reverberations after being embroiled in litigation over a period of months or years. Roberts encourages physicians not to get caught up in practicing defensive medicine. “If you’re running down the hall looking over your shoulder for the lawyer behind you, you’ll run into the wall ahead. Just do the best you can medicine, and let go of the fear.”

Gutheil says physicians are usually hypersensitive in the wake of being involved in a suit. “There’s no way around it,” he says. “In psychiatry, if someone commits suicide and the patient’s family sues, the doctor will panic every time a patient uses a word starting with ‘s,’ even if it’s ‘sunscreen.’”

Because Hossfeld has gone public with his experience (look for his essays online), he says colleagues often approach him for advice. “Don’t be second-guessing yourself just because somebody makes allegations that you’re not a fine physician,” he counsels. “Don’t question that you’re a competent, compassionate physician who has done lots of good things for lots of people.” Hossfeld says he talks about his case because he hopes it helps other physicians. “I’ve found that the way to get over feeling like a victim is to try to change things,” he says, adding that he’s pushing for tort reform and has initiated his state medical society to do a study about the costs of defensive medicine.

Hopefully, you’ll be one of the fortunate practitioners who never become acquainted with the legal system. If not, try to keep things in perspective. Roberts was president of the American Academy of Family Physicians at the turn of the millennium. “I called a member every day I was president to see how they were doing and how the Academy could help. They’d complain for a while about managed care, Medicaid and malpractice. Then I’d ask them, ‘What’s good?’ and they always said the same thing—‘My time with patients.’”

So, when the going gets tough (and if you’re named in a suit, it surely will from time to time), use some of the ideas in this article to cope. Focus on why you went into medicine: to provide high-quality, compassionate care for patients—the overwhelming majority of whom appreciate you beyond measure and would never consider causing you grief by hauling you into court.