How to Survive a Malpractice Lawsuit With Your Soul Intact

Source: Photo by Mulyadi / Unsplash

I teach a malpractice litigation course for medical students and it is an eye-opener, apparently. I do not profess to be a legal expert, but I've spent the last decade and a half helping healthcare workers build their resilience and avoid burnout, and frankly, the most harmful aspect of a malpractice lawsuit almost always is the psychological-emotional impact. Upwards of a third of physicians who are sued report the process significantly impacted their emotional-physical well-being, their relationships with their patients, and or their overall practices. Observing my medical colleagues, I would say this is a gross underestimate. Many have stopped performing certain interventions or whole categories of interventions predicated on their experience in a single suit. Some have left the profession altogether. Those who haven't been sued often engage in obsessive defensive practices. And physicians aren't the only ones who are targeted. Essentially, all healthcare workers are at risk.

Why Is a Malpractice Lawsuit So Emotionally Damaging?

Many in healthcare practice a “whistle past the graveyard” approach to malpractice litigation. That is, if they themselves are not being sued, they don’t want to even think about it. If one does rear its ugly head, they are completely naïve to the foreign and hazardous universe they will inhabit for the next two to five years. Yes, there is a chronicity to the proceedings of a malpractice lawsuit, often extending several years, with periodic painful reminders of its existence. Combine this with the mercilessly accusatory nature of the typical suit and practitioners feel their very beings are under assault. How can you soothe and or alleviate the related anxieties to these and other components of malpractice litigation? I would argue, the more you know, the better you can handle it.

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The Arbitrary Nature of Who Gets Sued and What Gets Litigated

We are all human. We make mistakes every day. Obviously, mistakes in healthcare may have serious repercussions, but mistakes will still be made. By law, an honest error, even with severe repercussions, is not malpractice. The error must arise from negligence—that is, straying outside the standard of care of one’s profession in the tending to a specific condition. Unfortunately, said standards can be nebulous. Thus, essentially, any bad outcome (actual or perceived) can be litigated. There is a roulette-wheel-like component to what gets brought to suit. In fact, only a very small percentage of all medical errors and or bad outcomes are actually litigated. And of those that are, most practitioners feel the suits were not warranted. Targeted practitioners must therefore recognize that a suit is not an indictment of their professional competence—they have simply hit the wrong number in a societal lottery.

A Malpractice Suit Is Not About Truth or Justice

If a suit proceeds all the way to a court, the case will most times be adjudicated by a jury of “one’s peers.” But it won’t be. Juries are not made up of healthcare providers of the same profession or specialty. They are randomly selected people from the community, often with limited educational background and medical sophistication. Malpractice claims often hinge on highly nuanced, highly specialized, scientifically complex, healthcare decision-making. Neither side expects the jury to fully absorb and comprehend the nuances, particularly after featuring in their arguments diametrically opposed testimonies from well-compensated “experts.” They turn the trial into a show, a production, a theatre, where the plaintiff’s attorneys seek to portray the practitioner(s) as awful professionals and disreputable people, and the defendant attorneys seek to portray the practitioner(s) as superlative professionals of saintly persuasions. Both sides seek to, and are accomplished at, playing to the jury’s emotions, not the actual facts of the case. Generally, because of the potential arbitrary nature of a jury’s response to this, neither side like a suit to go as far as a trial.

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A Suit Is Not a Determination of Your Competence or Caring

As noted, any bad outcome (actual or perceived) can be litigated (and potentially won). Practitioners often feel that throughout the protracted unfolding of a suit, everyone is attentive to its proceedings and are passing judgment upon them. It feeds into the ubiquitous imposter syndrome in healthcare workers. It’s as if the practitioner is wearing a scarlet “M” upon their chests. The reality is, though, that suits move in such a glacial manner, that no one is taking notice of it, or care about it. And even if the case finds its way into the papers, it becomes old news by the following day. Practitioners’ reputations are far more likely to be harmed by the proliferation of uncurated online rating sites. This doesn’t mean that a practitioner shouldn’t review all their bad outcomes (and good) with the goal of improving care, but protracted self-flagellation is counter-productive and may lead to actual decrement in the care of current and future patients.

A Suit Won’t Bankrupt You or Destroy Your Job Prospects

Particularly in the era of mega-medical systems, many if not most practitioners come under system-wide malpractice insurance (although it is always important to have a full appreciation of one’s personal coverage). This, combined with various tort reform initiatives has made the scenario of practitioners losing “everything” in a suit far less common than in the past. Furthermore, employers recognize that malpractice claims are part of the business. For example, 20 percent of neurosurgeons face a suit every year. Obviously, outliers exist, and systems and practices will scrutinize the work of someone who is repeatedly sued. But few practitioners lose their jobs over one or two suits or have trouble finding new jobs. This, despite the fact that information on suits where an incident of malpractice has been determined (in court) or has been admitted to (in a settlement), does go to a national and state databanks.

This is the first in a series of related posts.