Litigation stress: Being sued is personal as well as professional

Some programs are helping physicians cope.

By — Posted Nov. 2, 2009

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Plaintiffs bringing medical liability cases commonly contend they have experienced pain and suffering. Many physicians could say the same about being dragged into the litigation process.

Karen Kohatsu, MD, a San Diego-area obstetrician-gynecologist, was confident she would prevail when she was sued a couple of years ago, but isolation and sleepless nights still reigned throughout the process. The suit was eventually dismissed.

"Self-doubting occurs when you read the summons and depositions from the other side," she said. "The other side makes it sound like you are a terrible person for missing a diagnosis. You feel really alone and have to turn everything inward because you don't have anyone to talk to about it."

Dr. Kohatsu is not alone.

Experts say litigation stress syndrome is a real phenomenon, and one that has a significant impact on physicians. Various emotions, including anger and depression, can strike, along with an inability to concentrate.

When physicians are counseled by their lawyers not to talk about the case, most take that to mean they can't talk about the experience at all, experts said. But increasingly liability insurers and professional medical societies are instituting programs designed to help physicians deal with the emotional rigors of litigation stress.

"In the big picture, we want to normalize the experience of litigation," said Ronald L. Hofeldt, MD, a psychiatrist in Salem, Ore. He serves as a consultant to medical liability insurers and other organizations, helping design retreats and wellness programs that give doctors a venue to air their litigation concerns and help them develop coping skills.

"The myth is, if you are a good doctor and you are perfect every time, you will never get sued, which is wrong. Getting sued doesn't mean you are a bad doctor. It's really just the cost of doing business," said Dr. Hofeldt, also director of physician affairs at Physicians Insurance A Mutual Co., a medical liability insurer based in Seattle.

Lawsuits often tap into doctors' fears of losing their reputations or their careers, he said. Such feelings often exacerbate doctors' unwillingness to let others know they've been sued or to discuss the emotional toll.

Dr. Hofeldt pointed to a 1988 study in the Western Journal of Medicine, "Physicians on trial -- self-reported reactions to malpractice trials." The survey, which remains the leading research on the prevalence of litigation stress, found 70% to 86% of physician respondents reported feelings of tension, depression, frustration and anger during a lawsuit. About 16% experienced a physical illness or the exacerbation of an existing one, such as hypertension or coronary artery disease. That was despite the fact that 70% of doctors surveyed won their cases. Only 10% reported talking about the experience with peers.

More recently, a 2008 study by the Physicians' Foundation, an organization that assists doctors with practice improvements, ranked medical liability pressures as the third leading stressor in medical practice, behind long hours and insurance issues.

Breaking the silence

Coming together at a retreat or through a support group, "doctors can look around the room and realize they are surrounded by really competent and caring doctors, and they are not so much of an outlier for being sued," Dr. Hofeldt said.

Dr. Kohatsu found it comforting to know there were other physicians in her shoes when, in preparation for her case, she attended a retreat offered by her medical liability insurer, the Cooperative of American Physicians. When a psychiatrist presented the symptoms of litigation stress, "everything that was described as normal feelings was what I felt, down to self-doubting, self-worth, and not sleeping well," she said.

Physicians are precluded from discussing the facts of their cases at the retreat, CAP General Counsel Gordon Ownby stressed, because the opposing side can subpoena others to discover what a doctor may have shared in conversations outside the attorney-client privilege.

But doctors are free to share the emotional aspects of the ordeal, Ownby said. Also, spousal communications remain protected and spouses are invited to the retreats.

CAP members are welcome to attend litigation retreats, regardless of whether they've been sued. The company's defense lawyers and claims specialists may recommend it to doctors having a difficult time with their cases, but attendance is voluntary. Physicians handling their cases well may be urged to attend and encourage colleagues.

Because lawsuit stress is known to impact the outcome of a case, CAP also uses its retreat to educate doctors about the legal process.

Until a lawsuit strikes, physicians generally are strangers to the intricacies of the legal process, Ownby said. At retreats, an attorney will walk a doctor through the various components: from the complaint to depositions to trial, and will address other possibilities for resolving a case.

The goal is to help doctors gain some control over a seemingly out-of-control situation, said Karen Lisko, PhD, a senior litigation consultant with Persuasion Strategies, a division of Holland & Hart LLP law firm. As a legal communications specialist, she has coached at retreats and worked to prepare physicians for trial.

Physicians are used to being in charge, Lisko said. When patients sue them "doctors are all of a sudden thrust into a very combative setting, and it's a very foreign feeling for them to be in that position."

Lisko conducts mock scenarios designed to prepare physicians for depositions and the witness stand, where fear, anger and other stress factors, if not properly managed, can creep into doctors' testimony.

Lisko then critiques physicians and encourages other retreat participants to offer comments. Beyond the actual testimony, the jury can be influenced by tone of voice, posture and eye contact, she said.

"You can just imagine: you've been told not to talk about this, and now you are finally in a witness situation where you are told to talk about it. So the most stressful thing on doctors' minds has been bottled up until these sessions," Lisko said.

"If they come across in a stressed-out way, jurors will misinterpret that as incompetence, and in fact, [doctors'] fear gets in the way of the truth."

A different approach

Midwest Medical Insurance Co.'s program takes a different approach to helping its members with liability stress. But Jerry Zeitlin, vice president of claims for the Minneapolis-based physician-owned insurer, emphasized it is a team effort.

The company's defense lawyers and claims specialists work with a doctor on case details, and the insurer retains Dr. Hofeldt to check in with members at pivotal points in the process: when a doctor first gets sued; before his or her deposition; and right before trial. The physician also may get a how's-it-going call every night during trial.

Because claims take an average of two years to wind their way through the courts, "this is something doctors are going to be dealing with for a long period of time," Zeitlin said. Though rare, litigation stress has been known to push some doctors into unnecessarily settling cases, he added.

"Most insurance companies have probably underestimated the impact that a lawsuit has on a physician. And I'll be honest, I think we did," Zeitlin said. "Now, our experience tells us, to have a successful program, we need to be the ones to reach out."

Doctors' reluctance to speak out has proven a stumbling block to some support groups. The Academy of Medicine of Cincinnati has received just one call about its medical liability support group since the group started about two years ago, according to nephrologist Steven Dumbauld, MD, the group's chair.

"Physicians feel like the [legal] action itself reflects badly on them, and they don't want anybody to know about it," said Dr. Dumbauld. He spearheaded the academy's support group after he found few resources to turn to while a case against him dragged on for an eight-day trial. It ended in his favor.

The need for these outlets remains crucial and the medical society is considering other more proactive approaches to reach physicians, Dr. Dumbauld said.

Litigation "really takes a toll on people and there's an intangible cost," he said, recounting the story of one colleague who, after being sued, quit vascular surgery to become a surgical assistant.

Even after litigation is over, the experience "does increase your defensiveness in the long term in how you order things, what you document. Even now, every note I write, I assume some attorney is going to be looking at it," Dr. Dumbauld said.

Such lingering effects among this physician population are not likely to evaporate soon.

While more insurance companies and medical societies are opening up various litigation support and wellness programs, such help often comes too late, psychiatrist Dr. Hofeldt said. "Part of the problem is, our training doesn't prepare us at all for the inevitability of a lawsuit. ... We need to teach medical students [about litigation stress] and it needs to be imbedded in our training."

Dr. Kohatsu said the retreat she attended gave her more confidence.

"But the hardest thing about litigation is the isolation and reading things you are accused of when you know in your heart you did everything correctly," she said. "I don't think those feelings will ever go away."

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Getting a grip

Stress can be an inevitable part of litigation, but there is help. Experts' recommend some ways to help address anxiety:

  • Acknowledge the uneasy feelings associated with getting sued and discuss them with someone you trust.
  • Consider seeking support through an organized program offered by your liability insurance carrier or local medical society.
  • Make an effort to learn about the legal process and your role in it.
  • Recognize that a lawsuit is not a personal attack but is a common part of medical practice.
  • Avoid discussing case details, which may be subject to discovery. Conversations with spouses are protected.
  • Participate in activities outside medicine to help avoid dwelling on litigation issues.

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