Imagine the scene: You’re in your busy office on a typical day when a letter arrives—a letter of intent. A patient is suing you for malpractice.
From the moment you receive that letter, everything changes. The malpractice claim begins to affect all aspects of your life. You don’t sleep well. You don’t interact well with family members, friends, or colleagues. You remain dedicated to providing the best possible care, but you find yourself taking a more conservative approach with patients, asking yourself, “How might this patient attempt to sue me?” Or, “If I were standing in front of a judge, what evidence would I need to defend what I’m doing?” You know you did nothing wrong—that the claim against you is unreasonable—which only adds to your frustration and sense of injustice.
If the lawsuit proceeds to trial, you’ll face the uncertainty that accompanies any courtroom process. And that process can be lengthy, dominating your personal and professional life for a year, two years, or more.
For most doctors, this scenario will play out at least once during their career. In fact, a typical doctor spends nearly 11 percent of a 40-year career with open malpractice claims.1 Facing a medical malpractice lawsuit will almost certainly be one of the most trying experiences you encounter as a physician, adding to the pressures of an already demanding profession. The lawsuit will generate an array of negative emotions, from self-doubt to high levels of stress and anxiety. But as I learned during my own litigation experience, there are steps you can take to ease the strain you’re under and limit these symptoms, allowing you to continue to serve your patients and maintain healthy relationships with those around you.
First, take a deep breath—and then prepare. Approach the lawsuit simply as an unfortunate consequence of practicing medicine, the price of being a physician. In today’s medical climate, a lawsuit is essentially inevitable, especially if you conduct procedures. 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. Be ready for your meetings with your attorney, and take an active role in your defense.
If you go to trial, the plaintiff’s attorney will make every effort to belittle you, anger you, and make you question yourself. When I took the stand, the plaintiff’s attorney attempted several techniques to unnerve me, even using his physical stature to try to intimidate me as I sat in front of the jury. He tried to chip away at my reputation, and he sought to create in the minds of the jurors the expectation that every case should have a perfect outcome.
Remember, in that situation, 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. This is your case, and you took care of the patient. That will reinforce your confidence and help you stay calm in the face of aggressive questions from the opposing attorney.
Above all, prepare for the witness chair by taking part in litigation education, especially a mock deposition. During the mock deposition I participated in, the attorney asked me the same types of questions and adopted the same approaches I would later face at trial. We were then able to evaluate my responses on video. My eyes were opened to what I could expect from a trial—I got deep insight into the real nuts-and-bolts mechanics of it. That helped me prepare for the moment when the plaintiff’s attorney would challenge me. I referred to my notes from the training prior to my deposition and prior to going on the stand during 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.
When confronted with a malpractice claim, doctors experience anger and embarrassment. These are natural reactions. Doctors are often reluctant to talk about past litigation because they’re afraid it reflects poorly on them—fearful that somebody will feel they did something wrong. To ensure defensibility, physicians will wisely avoid discussing an ongoing claim with anyone other than their claims specialist or defense attorney. But after my litigation was over, whenever I brought it up to other physicians—even speaking in general terms—I could sense their discomfort and unwillingness to acknowledge their own past litigation experiences. This was especially true in group settings. However, it can be a huge benefit if you can find a colleague willing to share: a person you respect and are comfortable with, someone who has battled a malpractice claim themselves. A colleague can offer advice and expertise on how to move forward from your ordeal.
Talking with your family is another vital step. The impact on family members can be substantial. During my litigation, over Christmas break our dining table resembled a war room, covered with multiple computers and an array of charts and other materials. I’d meet with my defense attorney at home, and I’d often wake up at 4:00 AM so I could review the 8,500-page medical record. Because of the length of my litigation, this significantly impacted my family over two successive Christmases—times when I wasn’t really there for them emotionally.
Although you can’t divulge the clinical details of a current claim to family members, you can talk with them about how it is affecting you. By opening up to your spouse, children, and other family members, you can help prepare them and ease your own burden. Be completely open about what’s happening and how it could impact both you and them. Seek their input and advice. This can help you overcome the feelings of isolation that often accompany a malpractice claim. Doctors often have a tough, go-it-alone mentality. But this is the bottom line: Don’t go into a shell. Talk to somebody.
Every profession has its stresses, but doctors’ stresses are unique. Overwhelmed patients share with us their innermost thoughts and concerns. Faced with difficult decisions—sometimes those that are life-and-death—they trust our expertise and rely on us to always take the right action. Added to that is the stress of delivering bad news, something I frequently encounter in my role as a gynecologic oncologist. I often need to tell patients that their lifestyle decisions are harming them, a message that isn’t always well received. And while many of my patients do well, I need to tell some that cancer will ultimately take their life, even if their outcome is positive in the short term. Depending on your personality, these interactions can be incredibly draining.
To these everyday stresses of our profession, add the stress of fighting a lawsuit to defend your reputation—more than ever, it becomes imperative that you take care of yourself. Don’t hesitate to make yourself your first priority. Do whatever you need to do to unwind. This might be physical exercise like running or biking, or it might simply involve 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.
Ultimately, after two trials spanning two-and-a-half years, I was completely exonerated by the jury. I was thrilled with the outcome, but I had endured a long period in which my personal and professional relationships were impacted. Having never been sued before, I found it very difficult to handle being accused of doing something wrong. But the emotional toll could have been much worse. By adopting certain strategies, 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.
1. 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):111–9.
By David P. Michelin, MD, MPH
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.