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Litigation Stress - A Primer

When an emergency physician is faced with a malpractice lawsuit, insurance provides protection from financial disaster, but the psychological and physical effects of malpractice litigation can still be personally devastating.

Litigation stress has been associated with defensiveness, sleep disruption, substance abuse, impaired concentration, disorganized thinking, anger, frustration and irritability. Feeling depressed is common, as are fatigue, decreased appetite and gastrointestinal difficulties. Studies indicate that, regardless of the outcome of the case, sued physicians experience a range of physical illnesses including MIs, ulcers, and depression.

"If you are sued, do expect to react emotionally. An emotional response is normal. You will be angry, hurt, disappointed and disillusioned. You will feel isolated, frustrated and unjustly singled out, and may question your clinical competence. You may also feel guilty, even if your performance was faultless. You may feel physically ill and possibly severely depressed," explains Louise B. Andrew, MD, JD, Principal Consulting Associate of the Center for Professional Well-Being, Durham, NC. Andrew is also an emergency physician at North Arundel Hospital in Glen Burnie, Maryland, and currently serves as Vice Speaker of the ACEP Council.

It's important to have a plan for dealing effectively with the pressure of a malpractice case, advises Andrew. She offers the following strategies for combating stress.

Share the burden with family.

Some doctors do not even tell their spouses when they are sued. "When you become a doctor and you put on that white coat and people start taking orders from you, you believe that you have to appear infallible," Andrew says. And, unfortunately, many physicians remain emotionally self-contained even in family relationships.

But when it comes to the stress of being sued, it's important to share your pain and feelings. Ask for your family's understanding and support throughout the ordeal. Tell them the unprivileged facts and circumstances in the case and ask for their support and suggestions, Andrew says. "It's important for a physician to share with family at this time because you need to share with someone or you can completely internalize this whole process. And, if you internalize the pressure, you can take it out on yourself, resulting in depression, illness and even, in some extreme cases, suicide."

<p>Get professional help.

On the other hand, anything you say about the facts of the case, depending upon who you say it to, may be "discoverable," which means the person you speak to may be called upon to repeat the conversation in court. Therefore, avoid the temptation to speak about the case to others as everything is discoverable unless covered by a privilege.

"Privileged" (protected) communications under the law are possible with your spouse, your lawyer, a clergy person or a therapist.

"One way for a physician facing a lawsuit to lessen stress is to talk about the incident, but not recklessly. The legal system allows for privileged communications not only with psychologists and psychiatrists but also with your lawyer, priest, minister or rabbi," says Andrew. "But be very careful about discussing the case with anyone else, since communication with other people is not privileged."

Talk to colleagues.

"Talk to colleagues who have been sued. Seek out and help other professionals who are undergoing similar stress. We tend to be perfectionists who don't readily admit to shortcomings in ourselves, nor do we tolerate them in our peers. That's why physicians undergoing malpractice litigation feel so isolated," says Andrew.

"You can't share the details of the case with other physicians because that would not be privileged conversation. But you certainly can share the feelings that the suit brings out in you. And that validates you because the other physicians will tell you that they've also felt this way. It validates that what you're feeling is justified and normal and it sort of brings you back into the fold when you've been feeling as if you're excluded by virtue of the fact that you've been singled out and sued for malpractice."

Several insurance companies and some state medical societies sponsor support groups for physicians being sued. In large group practices, discussion groups may exist that could be adapted for this purpose.

If there is not a group available in your area and you know others who have been or are being sued, consider starting your own group. Guidelines for establishing a physician litigation support group are available from the Center for Professional Well-Being, 21 West Colony Place, Suite 150, Durham, NC 27705, or by telephone at (919) 489-9167.

Participate actively in your defense.

"Lawyers understand the courtroom and understand legal case management, but don't necessarily understand the medicine involved or the particular circumstances that led to the claim. This is true of your defense lawyer, as well as the plaintiff's lawyer. So, you should use your expertise to educate your lawyer about every possible medical angle. It's more or less a matter of becoming an expert on your own behalf, rather than just relying on the legal experts to take care of things," Andrew says.

And remember that settlement is not an admission of negligence, but an attempt to cut losses. The amount of a settlement is not proportional to the degree of culpability, but rather to the expense of trying the case to its conclusion.

Prepare for either outcome.

Prepare yourself for each possible outcome. A verdict for the plaintiff does not necessarily mean you were negligent, nor does dismissal necessarily remove the stigma or stress of being sued.

"Before the judge or jury foreman pronounces the verdict, you should already have pictured in your mind what you will do if the verdict is against you. There are certain things that you should be prepared to do. Plan to tell certain people about the verdict and how it makes you feel. And think about other situations where an explanation may be required. For example, if you ever apply for privileges at a new hospital or to a new group, be prepared with your response to any questions about the lawsuit, so you don't appear defensive or guilty," says Andrew.

"And you should also visualize what you will do if you are found not guilty. How will you act toward the patient or the patient's family if they should come to you again for care? And what are you going to say to your family and friends and others who hear about this, because the fact that there was a suit is going to be public knowledge?"

Learn from the experience.

Studies show that many malpractice cases are related to communication issues. Use the knowledge you gain from defending your case as an opportunity to improve your communication skills. Make the effort to change the policies, professional environment or circumstances that contributed to initiation of the suit, advises Andrew.

"Look at your own behavior during your interaction with the patient. See if, although you may be completely blameless medically, there are any social or communication issues that you can recognize or improve upon for the next time," she says.

Educate your patients.

Physicians have a role to play in educating patients about the importance of taking responsibility for their own health, as well as helping them understand the inherent limitations of the existing medical care system.

"When you see an emergency department patient, be certain that they know - state it specifically - that this is only an acute intervention. Urge that they see a physician to follow up on the emergency department visit," Andrew says.

"Whenever you're proposing a procedure or a test, be sure to explain that it is not guaranteed, that everyone's body is different and may react differently. At the end of the interview with the patient, ask: 'Does this take care of your issue? Have I heard everything correctly? Is there something I didn't address here? Are you comfortable with this plan?' And, thereby, share the responsibility for the health of the patient directly with the patient."

Work for changes in the system.

When it comes to tort reform and policy decisions, physicians can influence lawmakers. And such activism is a healthy outlet for feelings of frustration with the legal system, says Andrew. "When you feel that there's something wrong, if you can work on rectifying it or at least sharing and validating with others that this is in fact a deficiency that you can all acknowledge, that's one of the ways to help deal with those feelings that something is not right."

ACEP offers many opportunities for activism. "State legislatures are where malpractice tort reform is accomplished. Getting involved with the state legislative activities of your chapter is a good way to affect reform. You can also get involved with the ACEP Well-Being Section, which is open to any member who wants to be involved in emergency physician well-being issues."

Take care of your health.

An emergency department is an inherently stressful environment. And, of course, there is the added physical strain of shift work rotations. When the stress of a malpractice suit is added to the mix, it can take a significant toll on an emergency physician's physical health. Proper diet and exercise and adequate rest become more important than ever.

"It's important to actually make a plan for preserving your own health, particularly in the face of stress such as malpractice," says Andrew. "Caring for yourself is an often overlooked, yet absolutely essential prerequisite to your caring for others."

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