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Evidence-Based Reviews


Malpractice distress: Help yourself and others survive

Prepare for stress by knowing what to expect and how to respond.

Vol. 6, No. 2 / February 2007

‘Immediately after the event I was a wreck. I vaguely remember talking to the family; I don’t know if I was much use to them. … That night I got drunk. It was the only way I could sleep. A sensitive colleague came and sat with me.”1

Besides being targets of malpractice suits, psychiatrists also serve as resources for colleagues who are sued. Specific actions can help you and those you counsel deal with the stress of an adverse event before and during litigation. Remember that:

  • anticipation is the best defense
  • knowledge is power
  • action counters passivity
  • a supportive environment is essential.

ANTICIPATING LITIGATION

What is the risk? No nationwide reporting system tracks the incidence of medical malpractice claims, but industry experts suggest a claim is leveled against 7% of psychiatrists each year.2 The risk is higher for other medical specialists: a recent survey by the American College of Obstetricians and Gynecologists found that 89% of practicing ObGyns had been sued at least once in their careers.3 Because a claim usually takes several years to resolve, a substantial number of physicians—including psychiatrists—are involved in litigation at any one time.

Successfully anticipating litigation begins with being familiar with your state’s statute of limitations—usually 2 to 3 years after discovery of the incident, with exceptions for children, the disabled, and designated special circumstances. If a plaintiff’s case is not filed within this time, a disputed outcome can never be the subject of a malpractice claim.

Adverse events. The severity of the outcome, the nature of your relationship with the patient, and the degree of your responsibility for an adverse event contribute to the intensity of your initial emotional response. If a mistake caused the event, your reaction may be even more severe.4-6 Whatever the event’s specifics, you may ruminate about your role and degree of responsibility (Table 1).

Table 1

Nagging questions after a ‘bad’ patient outcome

  • Is this my fault?
  • Could I have prevented this from happening?
  • Did I make a mistake in this patient’s diagnosis or treatment?
  • Did I make a mistake in judgment?
  • Could I have done something else (such as hospitalize the patient, change the medication)?
  • Did I harbor unconscious transference feelings toward this patient?
  • Did I miss some signs I should have seen?
  • Would this have happened no matter what I had done?
  • Are other people to blame?

Expect that your view of the circumstances will generate a complex array of feelings: shock, anxiety, depression, shame, guilt, self-blame, disbelief, self-doubt and inadequacy, anger, and even relief from not having to work with a difficult patient anymore.

Patient suicide. More than one-half of psychiatrists and up to one-third of psychiatric residents experience a patient suicide.7-10 The Joint Commission on Accreditation of Healthcare Organizations reports that suicide is the most frequent sentinel event, representing 501 (13.1%) of the total 3,811 sentinel events reviewed since 1995.11 Professional Risk Management Services, a major medical malpractice insurer of psychiatrists, reports that suicide and attempted suicide are the most frequently identifiable causes of liability payments (Figure).

Figure 1 Psychiatric claims by cause of loss in the United States, 1998 to 2005


Almost all lawsuits assert multiple allegations of negligence, and “cause of loss” represents the main allegation made in the claim or lawsuit. Thus, the category of “incorrect treatment” may be alleged in a lawsuit based on a patient suicide, but the main or chief allegation/complaint is stated as “incorrect treatment.” The most frequent identifiable cause of loss is suicide and attempted suicide.

* “Other” includes administrative issues, abandonment, premises liability, Tarasoff, third parties (such as parents), retained object, libel/slander, boundary violation, deleted duplicate file, Fen-phen, lack of informed consent, forensic issues, and miscellaneous.

Source: Prepared by Professional Risk Management Services, Inc. Reprinted with permission.

Psychiatrists’ feelings of distress after a patient suicide mirror the personal sense of failure and inadequacy most physicians feel when they are unable to prevent a patient’s death or serious injury. At the same time, we must:

  • deal with the event’s medical complications, with relevant notifications and disclosures (Table 2)
  • address the emotional pain of the injured patient or family
  • participate in mandated reviews
  • recognize and manage our emotional disruption (Table 3).

Table 2

Recommended medical steps, notifications,
and disclosures after an adverse event

MEDICAL STEPS
Take necessary actions to limit further injury or disability
Obtain appropriate consultations
Review the medical record; anticipate the patient’s follow-up needs and make recommendations for further treatment

NOTIFICATIONS
Follow the health care system’s and insurer’s guidelines for notifying the patient/family
Inform the institution’s risk manager and your professional liability carrier as soon as possible
Write a description of the event for the record and a narrative for your personal file (and your lawyer’s) in case a suit is filed later
Do not talk with the media

DISCLOSURES
Acknowledge your ethical obligation to be truthful
Follow your institution’s and insurer’s disclosure guidelines
Expect to feel intimidated and uneasy in discussing your role in the event
Expect the patient/family to be angry and disappointed in you
Convey an interest in the patient’s/family’s emotional state; express sorrow for their loss
Tell the patient/family what you know for sure; don’t speculate about what is not known, and don’t make false promises or false reassurances
Don’t hurry; give the patient/family time to ask questions
Expect to feel better after a truthful exchange

Table 3

Managing your emotions before and during litigation

Anticipate having repeated thoughts and preoccupations about the event; work toward a realistic view of it

Recognize your feelings and work to understand their source

Talk with a trusted confidant (your spouse, colleague, etc.) about your feelings

Monitor your emotional and physical status and, if indicated, seek appropriate consultation

Avoid situations that generate anxiety and increase stress

Monitor and address changes in relationships with family, patients, colleagues, and staff

Be understanding of yourself and others; develop a realistic view of yourself as a ‘good doctor’

Engage in active sports and take regular vacations unrelated to professional activities

Control what can be controlled

Self-evaluation. To cope with distress when a patient dies, you could attend the funeral. If the death was by suicide, consider consulting with a therapist about your reactions or review the case with your supervisor. You also might:

  • make changes in your practice that alert you to problem patients
  • introduce a more structured approach to patients with particular clinical conditions, using practice guidelines as a resource12,13
  • become more alert to patients who may benefit from consultation or referral.

Balance the time you devote to work and personal life. Schedule regular time for recreation and active sports, which can help you prepare for the prolonged stress that follows being sued. Engage a personal physician to monitor your physical and emotional health and to recommend appropriate referrals when indicated.

KNOWLEDGE IS POWER

What can I expect? A lawsuit generates a mixture of common emotions and exacerbates those felt at the time of the bad outcome: shock, outrage, anxiety, anguish, dread, depression, helplessness, hopelessness, feelings of being misunderstood, and the anger and vulnerability associated with a narcissistic injury. As one ObGyn stated, learning that a lawsuit was filed “just prolonged my misery.”14

Each of us reacts in our own way to a lawsuit—and differently to each lawsuit if we are sued more than once—because of:

  • our personality traits and personal circumstances
  • the specifics of each case
  • our relationship with the patient
  • the public nature of a lawsuit
  • a range of other variables that makes each case unique.

Suddenly, we who perceive ourselves as caring, beneficent, well-meaning, and devoted to our patients are publicly accused of being careless and incompetent, of harming the patient by failing to meet our minimal obligations. Psychiatrists Richard Ferrell and Trevor Price15 capture the impact of these allegations:

"Here are the sense of assault and violation, the feelings of outrage and fear. Most painfully, here is the narcissistic injury, the astonishing wound to our understanding of ourselves as admirable, well-meaning people."

Litigation is a lengthy process with defined stages (Table 4). We have little control over a slow-paced process that involves an array of participants (lawyers, judges, jury, and experts) whose behavior is not predictable. This makes us feel dependent, vulnerable, and impotent.

Table 4

Stages of litigation: What happens in court

Stage

Definitions

Summons

Notification that a suit has been filed

Complaint

The nature of the allegation in legal terms

Pleadings

The attorney begins to communicate with the court by filing motions, a request that the court do something

Discovery

A process designed to obtain information about the case:

  • Interrogatories (written questions)
  • Depositions (oral questions and answers under oath)
  • Inspection of documents
  • Expert witnesses (persons used to establish the relationship between the event and the standard of care)

Summary judgment

A motion asking the court, after the facts have been established by discovery, to decide the validity of the case; if granted, the case is resolved without a trial by jury

Settlement

An agreement between parties that resolves their legal dispute

Trial

Case is presented to the judge or a judge and jury to determine culpability

Verdict

Decision reached by the deciding body

Post-trial

If the defendant receives an unfavorable verdict, motions may be offered to the court to void or appeal the verdict

BE ACTIVE, NOT PASSIVE

What you can do. Contact your insurer and risk manager immediately. Inquire about the average length of litigation in your jurisdiction (might be 1 to 5 or more years, depending on locality, type of case, and severity of injury). Ask your lawyer to describe the steps in the process and your role as the case proceeds.

Take whatever steps are necessary to cover your clinical duties. If your initial emotional reaction is disruptive, obtain coverage or rearrange your schedule. Expect to change or limit your schedule before depositions and during trial to allow adequate time for preparation.

Accept the fact that you must play by rules far different from those of medical care. Litigation is time-consuming and frustrating. Delays and “continuances” are common in legal proceedings, so expect them. Consider adapting to your own situation strategies that other sued physicians have found useful in regaining control over their lives and work (Table 5).

Table 5

Regaining control: Managing your practice during litigation

Learn as much as you can about the legal process

Introduce good risk management strategies, such as efficient record-keeping, into your practice

Clarify the responsibilities of office personnel and coverage responsibilities with associates

Rearrange office schedules during periods of increased stress

Re-evaluate your time commitments to work and family

Participate in relevant continuing education

Make sure your financial and estate planning is current

Cooperate with legal counsel

Devote sufficient time to deposition preparation and other demands of the case

Carefully evaluate the advice of legal and insurance counsel regarding a settlement

Do not try to “fit patients in” while on trial; trial is a full-time job

GET NEEDED SUPPORT

Talking about the case. Sharing with responsible confidants your emotional reactions to being sued is healthy for you and others affected. Lawyers, however, may caution you not to “talk to anybody” about the case. They don’t want you to say anything that would suggest liability or jeopardize their defense of the case.

As psychiatrists, we know this is not good psychological advice. The support of others is a natural help during major life events that cause enormous stress and disruption.16 You can resolve this dilemma by accepting the discipline of talking about your feelings regarding the case without discussing the specifics of the case.

In addition to lawyers and claims representatives, you may talk with your spouse or another trusted person or colleague about your feelings. When other physicians or psychiatrists formally consult with you about their litigation experiences, you are protected by the confidentiality inherent in the doctor-patient relationship.

Trust issues. Trust lies at the core of psychotherapeutic work. After being sued, you may find it difficult to re-establish trusting and comfortable relationships with patients, especially those who are seriously ill.

Continued...
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