October 27, 2010
The Shame of Malpractice Lawsuits
By PAUL LEVY
This posting is not about tort reform. It is not about defensive medicine (e.g., MDs taking too many tests to avoid the chance of lawsuit.) It is not about controlling costs or improving the quality of care. It is not even about whether malpractice lawsuits are fair. It is about the emotional effect on a doctor when he or she is sued for malpractice.
A friend of mine (I'll alternate genders to help maintain confidentiality) recently found herself in this situation. By any measure, this person is an excellent physician. She has impeccable clinical judgment when it comes to both diagnosis and treatment. She has superb interpersonal skills and bedside manner. She is highly respected by her peers, by the nurses, and by all who know her.
Recently he found himself as a defendant in a malpractice lawsuit. The details and merits of the case don't matter all that much. The patient had been under his care for many, many years and was always satisfied with the quality of care offered. After the patient died, the patient's children sued.
Even though she knew that she had done nothing wrong, my friend's main emotional response to the lawsuit was that she was ashamed. She did not want anyone to know about the case -- whether colleagues in the hospital or social friends. I was stunned. Without knowing any of the evidence in the case, I was confident that this doctor had done her best in treating another human being and would be appalled to think she had done anything to create harm. I also knew this person to be as well trained and well intentioned as anyone I could imagine.
And, yet, he felt shame in being named as a defendant in a case that accused him of negligent treatment. As I talked to other doctors, I learned that this was a common reaction to such lawsuits. Another friend talked of the scars left from a case 20 years ago. He was found not to be at fault, but he could still vividly recall the weeks of shame he felt while the case proceeded.
What is it that makes doctors respond in this way? Are they so naive about the legal system that they are not able to absorb its brickbats with equanimity? After all, people in other fields are sued all the time, and while they feel many emotions, usually shame is not at the top of the list.
I think it is this. Doctors devote their lives to alleviating human suffering caused by disease. They spend decades in training. They disrupt their family lives to be available to help others. For them, this is a calling. It is not part of their life. It is their life. They measure their worth to their community and ultimately value themselves by their unfettered dedication to this cause -- and by society's appreciation for it.
A malpractice claims shatters this construct. In the doctor's mind and heart, it says, "Society does not value all that I have devoted my life to. They do not believe I am worthy of trust that is granted to me, notwithstanding the effort, energy, and dedication I have given to this calling." And perhaps he even says, "Maybe I am not really as good a doctor or as good a person as I think I am."
For someone who has spent his or her whole life basking in the gratitude and admiration of individuals and society, this can be a devastating experience. Even when the verdict is issued, clearing the doctor of all wrong, it can leave a terrible scar.
As this particular case proceeded, I was really pleased to see an evolution in the doctor's feelings. After watching the opposing witnesses misrepresent the clinical evidence in the case, she got really, really angry. Her sense of shame evaporated. It was replaced by an outrage that the patient's children, the plaintiff's lawyer, and members of her own profession were causing her to spend hours away from the care of other needy patients. With the arrival of anger, her confidence returned.
Sure enough, he was cleared of all allegations. He came back to work, and I was heartened to see that caring smile return to the floors of our hospital. I hope he never has occasion to feel unwarranted shame ever again.
October 27, 2010 | Permalink
Comments
As a physician I don't see the problem with what the fire department did. There is only so much free care and then you have to pay.
Posted by: Ross Franklin | Oct 27, 2010 5:30:09 PM
If government licensing was removed along with its false sense of secruity and people put more effort into their own healthcare decision making, lawsuits would not occur as much. People should be able to sue and have no caps on damages, but government licensing and price insensitivity on behalf of the consumer have created a monster of a healthcare system in this country.
What really gets me is when stupid judges actually CRIMINALIZE negligence or errors resulting from process issues, not the individual. This only encourages hospitals and practitioners to hide errors even more than they already do.
Posted by: PharmerJoshua | Oct 27, 2010 5:53:31 PM
Thank you for writing this. Sums it up perfectly to me. I have yet to be sued, thanks to whatever fates have supported me thus far in life, but this is what I have heard equally from colleagues who were wrongfully sued.
We do this as a calling. I just hope someone who doesn't get this tries to write something shameless and rude.
You never know when that adage comes back at you: what goes around comes around!
Posted by: DeterminedMD | Oct 27, 2010 6:17:10 PM
In medicine we physicians are taught that the patient and family's welfare is a priority even before the physicians' own welfare. We have been abused badly by our system. In many many cases a bad outcome is inevitable. Good Health is a gift and it cannot be assigned to the physician. We merely stand in the way of inevitability and in some cases succeed. We physicians cannot guarantee health. I don't know the specifics of this case, nor what the merits were. I hope you have your physician back for good. Nice to know he (she) had such great support from the hospital admin as well. At times this is not the case and we are divided and torn apart and no one comes out for the better
Posted by: Gary Levin | Oct 27, 2010 6:21:55 PM
A bad outcome is not necessarily medical malpractice as we have all opined many times before, and in the book: "Risk Management and Insurance Planning for Physicians and their Advisors."
http://www.amazon.com/Insurance-Management-Strategies-Physicians-Advisors/dp/0763733423/ref=sr_1_3?ie=UTF8&s=books&qid=1275315795&sr=1-3
Courage!
Dr. David Edward Marcinko, MBA
www.MedicalExecutivePost.com
Atlanta, GA
Posted by: Dr. David E. Marcinko MBA | Oct 27, 2010 6:39:57 PM
Thank you for writing this. I too have seen physicians sued who were, by all measures, top notch. The experience for them of being dragged through years of depositions and legal wrangling was devasting. They never knew whether all they had worked for would be wiped out by a single jury verdict who felt sorry for someone who happened to have a bad outcome regardless of the quality of the care that was delivered. It's not simply one's reputation that is at stake but personal financial assets if the jury award is greater than one's malpractice coverage. Watching others experience this nightmare has only served to make me much more tentative and reluctant to take on tough cases. It certainly has not made me a better physician because I see that ever possible well-intentioned effort could be second-guessed and twisted around at a moments notice. Certainly patients deserve to receive compensation when a mistake actually occurs and they require ongoing treatment and care as a result. But terrorizing well-trained and well-intentioned physicians with the spectre of frivolous lawsuits does no good for anyone.
Posted by: A. Nony Mouse | Oct 27, 2010 11:08:01 PM
Interesting article and human perspective. I have to ask that within the enviromental and cultural peer review. Is it possible that within this bubble; You have created a false sense of Security and a buffer from real world realities?
Those of us who work in the private sector deal with being rejected, questioning our motivations and being sued. We also make our mission to serve:putting ourselves last. To provide for our customers as well. Anyone who has any pride in their Profession of choice share the Same Feelings. Therefore I see no real differences in Health Care.
Lawsuites are seldom enacted unless some form of strong proof has been revealed.Lawyers are like used Car salesman who only sue on a sure thing. Besides,Doctors have more to fear from insurance Companies sue than Patients.
I agree that Good Doctors are often grouped in with some whom have a doubious Distinction of being Honest. Let alone having morals.Unfortunate as it is;Doctors are not alone.
Posted by: Gary Lampman | Oct 28, 2010 11:57:36 AM
"It is about the emotional effect on a doctor when he or she is sued for malpractice."
And about the emotional effects on injured patients, not to mention the financial ones.
"The details and merits of the case don't matter all that much."
Oh, but they do.
"After all, people in other fields are sued all the time"
By doctors?
"Sure enough, he was cleared of all allegations"
Then the system worked, didn't it.
Posted by: Peter | Oct 28, 2010 4:39:50 PM
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