account for physician litigation stress | Holland & Hart – Persuasion Strategies
There was the childhood spent being a good student, then the tough years of college, and the even tougher years of medical school, then residency, then years of developing your expertise and practice. Then came the event that many said was inevitable, but that you thought you could avoid: you were sued. This triggered immediate and long-term reactions: stress, doubt, uncertainty and fear. And one thing we can count on with the American legal system is that it’s long, so doctors will have to find ways to deal with that sword hanging over their heads – to live, to practice medicine, and to prepare for a help in their own defense – under this constant threat.
The psychological toll of this threat must be fully appreciated. A current book on malpractice in psychiatry has a chapter titled “The Stress of Being Sued” (Metzner & Genre, 2022), written by two members of the Department of Psychiatry at the University of Colorado School of Medicine. The authors call it “Medical Malpractice Stress Syndrome”, although I prefer “Physician Litigation Stress Syndrome” (because it’s litigation, rather than malpractice, that causes the stress). Either way, physicians facing actual or potential lawsuits face an increased mental burden combined with a fairly narrow latitude of control. This can prepare them for the type of pressure that lawyers and others working on the case must understand and manage.
Physician litigation stress
General symptoms of trial stress among physicians were not documented until the early 1980s, through research by Sara Charles and others (1984). The shortlist of documented effects includes the following:
- Loss of joy of living
- Social withdrawal
- New or worsening physical illness
- Difficulty concentrating
- Suspicion of the sick
- Avoid high-risk cases
- defensive medicine
Requires a sensitive response
Seasoned defense attorneys can be fooled into tacitly assuming that a defense is part of a day’s work. It is normal, expected and controllable. Only for many doctors, it looks like none of that. We may know intellectually that a lawsuit is normal, not necessarily justified and not personal, but it still feels personal. For lawyers, it is worth discussing this with your clients, not only discussing the legal course of the case, but also the psychological journey. Many specific messages can accompany this advice, but for me there are three main ones.
1. Control what is under your control
There are many things in litigation that you do not control: past actions, the plaintiff, the opposing lawyer, their experts, the court calendar, the judge’s decisions… But here is what you control: Your own role and your own testimony. Work to be an asset to your defense attorney, and when it comes to your testimony at deposition and trial, strive to make it clear, accurate, helpful, and effective. Also work on your own comfort to deliver it.
2. Crop it
Accept that litigation is a normal part of the American medical process. For many patients, it’s nothing personal, they’ve just been led to believe that they’ll be leaving money on the table if they don’t pursue it. It’s business. Another aspect of the process that can be reframed is the doctor’s testimony. Ultimately, for the doctor, it’s just about saying what you did and why, and it’s something you’ve been preparing to do since your first day in medical school.
3. Trust your support system
Being in litigation can feel isolating, but you are not alone. The defense attorney is in your corner, so give him your full cooperation and a positive attitude. It can make a big difference. Your team also includes your insurance representative, possibly an advisor or litigation consultant, as well as your family and colleagues. Although you should not enter into factual discussions about the case with this last group, you can count on all of these groups for general support throughout the process. There is also the support system found in your own self-care habits: eating well, sleeping, exercising, making time for enjoyable activities, and trying to focus on the values that have set you up. brought to your practice in the first place.
Final note: it’s not just doctors
People who become doctors tend to be highly motivated perfectionists. They may carry an inflated sense of responsibility, and this can backfire in the form of heightened levels of self-doubt. They are used to having high levels of control, and in the litigation process they suddenly find themselves with very little control. All of this can make physicians particularly vulnerable to the stress of litigation. But there are other licensed professionals – engineers, accountants and lawyers – who can also be accused of failing to perform the most basic responsibilities of their jobs. Or more broadly, any witness to the facts who is called or criticized (and this can include both complainants and defendants) may face similar forms of stress.
Litigants, you may be in this business because you love it. But remember how stressful and off-putting it can be for everyone, and adapt to that.
Charles, SC, Wilbert, JR and Kennedy, EC (1984). Physician self-reports on responses to malpractice litigation. The American Journal of Psychiatry.
Metzner, JL, & Gendel, MH (2022). The stress of being sued. Malpractice and Liability in Psychiatry79-84.