Medical Malpractice:

How to CopeTIMOTHY CRAIG ALLEN, MD, JD

THE UNIVERSITY OF MISSISSIPPI MEDICAL SCHOOL

THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER

Disclosures

Nothing herein should be considered legal advice

Nothing herein necessarily represents the opinions of the University of

Mississippi Medical Center or the College of American Pathologists

Goals to help pathologists cope

Understand the basics of medical malpractice law and discuss specific

legal criteria that determine medical liability

Understand the typical timeline of a medical malpractice lawsuit

Learn how to negotiate a deposition and avoid its pitfalls

Consider ways to minimize the emotional and psychological impact of a

medical malpractice lawsuit on the pathologist and the pathologist's

family

“…ideally…”

“…ideally, [a physician’s post-medical malpractice lawsuit] adaptations

lead to greater competence and a more satisfying personal and

professional life”

Charles SC. Coping with a medical malpractice suit. West J Med 2001 Jan; 174(1): 55-58.

“…predictable hazard…”

“…being sued for medical negligence is a predictable hazard of medical

practice in our times. Education of the sued physician about medical

malpractice stress is the key to dealing with the fear of litigation.”

Sanbar SS, Firestone MH. Medical malpractice stress syndrome. https://www.acep.org/uploadedFiles/ACEP/Professional_Development/Faculty_Development/Medical%20Malpractice%20Stress%20Syndrome%20article%20for%20web.pdf

How well do we understand?

Allen TC, Stafford M, Liang BA. Pathology and medical malpractice. Academic and

trainee empirical review of cases by State of Texas physicians. Am J Clin Pathol. 2014

Apr;141(4):501-9

Do we practice defensively?

Allen TC, Liang BA. Pathologists and liability: an old medical story needing a new

ending. Am J Clin Pathol. 2015 Dec;144(6):828-9

The Basics of Medical Malpractice

“No matter how much you think you know about medicine, you’re not an

expert on malpractice law. Your lawyer wouldn’t try to take over for you in

the operating room, so don’t tell him how to handle your case. And don’t

assume that you’re smarter than us plaintiffs’ lawyers.

Remember: Once you’re sued, you’re in our OR.”

-Boston Plaintiffs’ attorney

Med Econ. 2000;77(8):94-6, 99, 103-4 passim.

The tort of negligence

“Conduct which falls below the standard established by law for the

protection of others against unreasonable risk of harm”

Typically the tort theory used in medical malpractice cases

Four elements of a negligence lawsuit

An actor owes a DUTY of care to another

There is a BREACH of the applicable standard of care for carrying out the duty

As a PROXIMATE CAUSE of the breach of duty an injury results

Compensable DAMAGES or injury to the plaintiff occurs

If hay is stacked from moist grass, bacterial fermentation may cause high temperatures where a chemical reaction produces flammable gas Farmers must be careful to avoid this "spontaneous combustion”

“Keeping hay fires from spontaneously combusting.” Montana State University Communication Services

Vaughan v. Menlove

Vaughan v. Menlove, 132 Eng. Rep. 490 (C.P.) 1837

Defendant built a haystack near the plaintiff’s land

Defendant, warned over 5 weeks that the haystack was poorly-built and

might catch fire, said he “would chance it”

It caught fire and destroyed the plaintiff’s barn and two rental cottages

“Reasonable Person” standard of care

Vaughan introduced the “Reasonable Person” standard of care

The court held that the defendant’s standard of care was determined by

whether the defendant “proceed[ed] with such reasonable caution as a

prudent man would have exercised under such circumstances”

The “reasonable person standard of care” has become an important part

of negligence law, including medical malpractice law

Legal experts on standard of care

“Ordinary”

“Average”

“Customary”

“Normally-possessed”

“Reasonably competent”

“Minimally competent”

“Interpreted just a little bit differently by everybody”

The expert witness’ job

An expert witness must:

Define a standard of care

Opine as to whether it has been breached

Opine as to whether any perceived injury was caused by the breach

“Battle of the experts”

“Ordinarily, to carry this burden the plaintiff must find a medical expert who is qualified and willing to testify that the standard of care was violated. Typically, defendants, too, must find their own expert to testify that the standard of care was not violated.”

Case studies of settlement failure. In: Vidmar N. Medical Malpractice and the American Jury: Confronting the Myths about Jury Incompetence, Deep Pockets, and Outrageous Damage Awards. University of Michigan Press: Ann Arbor;1995, 59.

The court’s charge

The Court’s goal is to try the case to conclusion in a procedurally correct manner

The Court also is under pressure to control its docket

“[I]t is not the primary goal of the tort system to achieve a scientifically correct conclusion.”

Wick MR, Foucar E. Evidence-based medicine and tort law. Semin Diagn Pathol 2005;22:167-176.

Loss of chance doctrine

An alternative medical malpractice legal theory of liability

“But for” causation

In traditional medical malpractice cases, the “but for” causation standard sets a clear rule for determining whether the physician’s alleged action was the cause-in-fact for the plaintiff’s injury

Liability occurs where the physician’s action is considered “more likely than not” (51% probability) to have caused the plaintiff’s injury

(In comparison, the “beyond a reasonable doubt” standard, the exclusive standard used in criminal cases, has been considered to be 99%)

When the physician’s action satisfies the “but for” test, and is sufficiently direct (proximate), then the action is considered the legal cause for the plaintiff’s injury

If the physician’s action is found to have a less than 50% probability of having injured the plaintiff, the case fails and the plaintiff “takes nothing”

Relaxed standard of causation

The doctrine relaxes the causation standard of traditional negligence law

Under the loss of chance doctrine, the plaintiff would be compensated for

an injury found to be negligently caused by a physician for the extent to

which the physician’s negligence reduced the plaintiff’s chance of

survival or having a better outcome, if less than 51%

But if greater than 51%, the physician’s extent of negligence is not

considered, and the plaintiff received full (100%) recovery

Ambiguous causation

It is being used more and more in cases where it is difficult to show that a

physician was “more likely than not” negligent under the traditional “but

for” causation standard

These cases often involve elderly and very ill patients, for whom there are

alternative preexisting conditions, giving rise to “ambiguous causation”,

e.g., in a case involving a patient death, whether the patient died from

the physician’s negligence or an alternative preexisting condition

Adequate compensation

The concern is that these patients are not being adequately

compensated for their negligently-induced harms (a reasonable

argument, on its face), and that physicians might therefore not provide

the appropriate standard of care for them (unlikely in my experience, yet

an argument that is put forward)

Smith v. Providence H&S-Oregon, et al.

361 Ore. 456; 2017

P goes to ER with headache, visual disturbances; CT shows no bleeding,

MRI suggested if symptoms persist

P returns to ER with persistent symptoms; D sends P to family MD, with order

for MRI, but not expedited order

MRI at end of week shows substantial brain damage from stroke

Testimony claims failure to order expedited MRI resulted in loss of chance

for treatment which 33% of time reduces or eliminates stroke symptoms

Smith v. Providence H&S-Oregon, et al.

Court determines Oregon adopts the loss of chance theory

“…the defendant’s tortious conduct was the reason it was not feasible to

determine whether or not the more favorable outcome would have

materialized but for the tortious conduct.”

Smith v. Providence, citing King JH. “Reduction of Likelihood” reformulation and Other

Retrofitting of the Loss-of-a-Chance Doctrine, 28 U Mem L Rev 492 (1997)

Knox et al. v. Rana et al.

2016 Tex. App. LEXIS 12381

P “had survived breast cancer and endometrial cancer.” Now

receiving radiation treatment for basal cell carcinoma on the nose

D ordered PET scan based on prior history of cancers; PET report

showed pelvic mass “suspicious for metastatic disease.”

P did not undergo a followup PET scan as ordered; she was later

diagnosed with metastatic cancer and died; testimony showed failure

to get PET scan made no difference in P’s outcome

Court states recovery is barred “if a condition preexists the negligence

of a health care provider and at the time of the negligence, the

condition resulted in the patient having a 50% or less chance of cure or

survival.”

Why now?

“There has recently been a ‘formidable evolution’ of systemic amyloidosestreatments from one of entirely supportive disease management to one dependent upon the specific molecular type of amyloid protein involved, utilizing ‘quite diverse, radical and aggressive treatments,’ including, chemotherapeutic regimens, some with stem cell rescue; stem cell transplantation; liver transplantation; and liver transplantation combined with heart or kidney transplantation...These remarkable therapeutic advances for some specific types of amyloidosis depend upon early, specific, and accurate amyloidosis diagnosis in order to best ensure appropriate patient treatment and optimize prognosis. Hence not only late diagnosis but misdiagnosis of the amyloidosis-type consequently leading to the application of aggressive treatment is dangerous.”

Allen TC. Medicolegal issues of amyloidosis. In: Picken MM, Herrera GA, Dogan A, Eds. Amyloid and related disorders: Surgical pathology and clinical correlations, 2d Ed. Humana Press:New York , 2015; 519.

Why now?

“When treatment options are primarily only supportive or nonspecific, regardless of when a diagnosis is made, and as such early diagnosis does not improve overall survival, showing that misdiagnosis or a delay in diagnosis was the injury’s ‘‘proximate cause’’ could be extremely difficult, or perhaps impossible. The loss of chance doctrine provides the plaintiff no increased benefit beyond the typical medical malpractice negligence doctrine in those situations; the plaintiff probably could not prove ‘‘proximate cause’’ by either method.”

“With the development of new diagnostic and therapeutic regimens; however, many diseases, including cancers, that were once merely treated supportively now have available, or may soon have available, specific therapies, including molecular-based therapies, which, if diagnosed early, provide the patient an improved prognosis. In these cases, the loss of chance doctrine may provide plaintiffs who could not prove that misdiagnosis or a delay in diagnosis was more likely than not the proximate cause of the plaintiff’s injury an avenue through which they might prevail.”

Allen TC. Loss of chance doctrine: An emerging theory of medical malpractice liability. Pathology Case Reviews 2012;17: 172-174.

21st century applications

Molecular testing of cancer

As with amyloidosis, sudden shift to specific, detailed, molecular-driven

diagnoses that must be done quickly and accurately to guide the use of

extremely expensive therapy that has the potential to significantly extend

the life span of cancer patients, e.g., TKIs and late-stage lung cancer

patients

Real world scenario

Multigene predictors of cancer therapy for which evidence-based

literature is still developing

Utilize a new molecular test and recommend a course of action, or do not

utilize it and recommend another course of action:

“In either case, with the advantage of perfect hindsight, the physician

could be portrayed by a skilled trial lawyer as having acted too slowly or too quickly to rely on multigene predictor assays.”

Issa AM, Chaudhari VS, Marchant GE. The value of multigene predictors of clinical outcome in breast cancer: an analysis of the evidence. Expert Rev Mol Diagn. 2015 Feb; 15(2):277-286.

The doctrine is appealing

“…human life is precious and…even the loss of only a small chance of

cure or survival is a significant loss.”

“…acts of negligence…to patients with poor prognoses should not go

unredressed…”

“…fundamentally unfair to permit recovery where the negligence had a

51 percent possibility of producing the harm complained of but denying

any recovery where the proof is only a 50 percent possibility.”

Weigand TA. Loss of Chance in Medical Malpractice: The Need for Caution. Massachusetts Law Review. http://www.massbar.org/publications/massachusetts-law-review/2002/v87- n1/loss-of-chance-in-medical

But

“…the practice of medicine is not an exact science and in most

instances there is more than one acceptable approach…”

“Health care providers could find themselves defending cases simply

because another course of action could possibly bring a better result.”

“To impose liability on physicians based on loss of chance is to impose a

burden that no other professional malpractice defendant carries.”

May encourage “a proliferation of defensive medicine, an escalation of

medical costs, and an unwarranted expansion of liability exposure…”

Weigand TA. Loss of Chance in Medical Malpractice: The Need for Caution. Massachusetts Law Review. http://www.massbar.org/publications/massachusetts-law-review/2002/v87-n1/loss-of-chance-in-medical

Perfect storm

Increasing understanding of disease processes, specifically molecular

pathology

Corresponding increase in therapies for these diseases, often requiring

early diagnosis and fast treatment in order to provide successful results

Increasingly expectant society with less appetite for medical failure

Increasingly cost-conscious medical administrators, with resultant

increased work loads and increased chance of error

Aggressive medical malpractice attorneys exploring options to

advance cases in light of tort reform

Courts becoming more comfortable with using the loss of chance

doctrine

Attorneys are aware

Insurer responsibilities

Defend the pathologist in the lawsuit

Retain an attorney for the pathologist

Defend the pathologist during the entirety of the proceeding

Indemnify the pathologist

Pay a settlement up to the policy limits

Pay a judgment on any covered claim

Policy may have a “consent clause” requiring pathologist’s consent to settle the

claim

Pathologist’s responsibilities

Notify the insurer promptly if any potential claims

Failure to do so may jeopardize the insurer’s obligations to the pathologist in the

lawsuit

Cooperate with the defense attorney during the duration of the claim and

subsequent lawsuit

Trust the attorney, be completely candid, and follow the attorney’s advice

Medical Malpractice Lawsuit Timeline

Presuit notice

Lawsuit events

Trial

Presuit notice

No attorney is yet involved

Critical to act promptly

Correct conduct maximizes legal protections

Avoid conduct that is potentially harmful to the pathologist’s case

Notice letter

Patient’s chart

Discussion of the claim

Notice letter

From Plaintiff’s attorney

Advises pathologist of Plaintiff’s intent to sue

Puts pathologist on notice of potential claim

Not a lawsuit

Not filed with the court

State law specific

Required by state to encourage presuit negotiations and settlement

Notice letter

Notify the insurer immediately upon receipt

Provide insurer any additional documentation

Delay in notification can jeopardize coverage

Notify insurer of any notice or service suggestive of or resembling a legal

claim

Discovery request

Deposition notice

If contacted by an attorney, do not discuss the case and immediately

inform the insurer

Patient’s chart

Not as much a concern with electronic medical record

For pathologists, major concern is spoliation of evidence

Place slides and blocks in safekeeping, as instructed by insurer

Do not do additional sections or stains, as such could be argued to be

spoliation

Discussion of the claim

Discuss the claim only with the insurer and the attorney provided by the

insurer

Avoid the temptation to discuss the claim with colleagues

Those discussions are at high risk for being identified and recounted during

discovery

Lawsuit events

Formal beginning of the lawsuit

Statute of limitations

Discovery

Pretrial means of disposition

Mediation

Formal beginning of the lawsuit

Plaintiff’s attorney files a petition with the court

There is then service of the petition and citation on the pathologist

The pathologist is now a defendant in the lawsuit

Immediately call the insurer, then forward copies of the petition and

citation

Formal beginning of the lawsuit

It is typically at this point that the insurer assigns an attorney to the

pathologist

The pathologist must immediately notify the insurer for timely filing of the

lawsuit answer

If answer is not filed by the court’s deadline, Plaintiff may obtain a default

judgement against the pathologist, and proceed to execute on the

pathologist’s assets for the amount of the default judgment

Statute of limitations

State specific

Not uncommonly medical malpractice claims have a two year statute of

limitations

Notice letter may extend it

Discovery rule

Tolls the statute of limitations where Plaintiff is unable to discover the event that

is the basis for the legal claim; otherwise prevents bringing of lawsuit before its

basis is discoverable

Discovery

Filing of the lawsuit initiates the discovery phase

Discovery is broad and includes all documents and information likely to

lead to the discovery of admissible evidence, whether or not that

information or those documents are ultimately themselves admissible

Pathologist often invests significant time and effort into responding to

discovery

Forms of discovery

Interrogatories: written questions served by the parties

Requests for disclosure: state specific requests for basic lawsuit information

such as experts, damages, contentions

Requests for production: requests for written documents

Forms of discovery

Requests for admissions: time sensitive requests to admit or deny

contentions or facts

Expert reports: contain the party’s experts’ opinions and bases for those

opinions

Depositions: sworn testimony by witnesses

Pretrial means of disposition

Motion for summary judgement: Dispositive motion; a judgment on the

merits, usually filed asserting defenses such as statue of limitations or

Plaintiff’s inability to produce a qualified expert capable of establishing

negligence

Motion to dismiss: Dispositive motion; usually filed when Plaintiff fails to

produce an expert CV and expert report establishing negligence

Pretrial means of disposition

Settlement: Agreement by parties; often pathologist does not admit

negligence but settles to avoid time and harassment of defending the

lawsuit. The parties execute and file with the court an agreed motion for

nonsuit; judge executes the order

Voluntary nonsuit: Rare; Plaintiff drops claim, often strategically, in order to

refile with a narrower group of defendants

Mediation

Nonbinding

Usually requires a half day or day, with all parties and attorneys present

Insurer must be present or available to authorize settlement

Uses an independent third party mediator

Mediator attempts to persuade parties to resolve the case

Trial

Most medical malpractice lawsuits settle before trial; some settle during

trial

Several years from lawsuit filing to the trial

Trial date is often uncertain until very close to the beginning of trial

Pathologist usually must dedicate two weeks for the trial, be prepared to

testify, and sit with the attorney at the counsel table during the trial

The fact witness deposition

Testimony of a witness under oath before a court reporter

Treated as courtroom testimony

Conducted in accordance with state or federal court rules

A discovery device

One party asks oral questions of the other party or its witness

May be performed in a formal or an informal manner

Locations—attorney’s office, doctor’s office, hotel room, or court reporter’s

office

Deposition

Deponent

Attorneys for parties

Court reporter

Videographer in some cases

Transcript is written

Word by word account of all that is said in the deposition

May be audiotaped and/or videotaped

Witness is entitled to a copy to clarify an answer or correct spelling

Do not waive the right

Plaintiff’s attorney’s goals

Educate herself about the subject

Learn what facts the defendant knows

Learn the defendant’s strategies

Judge the effectiveness of the defendant at trail

Impeach the defendant’s credibility

Plaintiff’s attorney’s goals

Learn the defendant’s strategies

Do not volunteer information

Answer “yes” or “no” or in short sentences

Beware of compound questions

Do not agree to supply any documentation or other information to the

plaintiffs’ attorney

Plaintiff’s attorney’s goals

Judge the effectiveness of the defendant at trial

Dress professionally

Be calm, professional, polite, knowledgeable

Do not appear arrogant (explain medical terms)

Keep emotions in check; do not joke

Plaintiff’s attorney’s goals

Impeach the defendant’s credibility

If unsure, state, “I don’t know” or “I don’t remember.”

Pause before answering to consider the question, and to give your

attorney an opportunity to object

Clarify any mistake

Plaintiff’s attorneys

Pal

Freight train

Butterfly

Time bomb

Ignoramus

Surv Ophthalmol 1995;40:69-72.

Am J Surg Pathol. 2001;25(4):527-537.

Pal

Joking and banter before the deposition

Informal setting

Casual dress

Freight train

Questions the deponent in a rapid-fire manner

Answer before thinking

Answer after a moment, slowly, in complete sentences, to break the

rhythm

Butterfly

Moves from one line of questioning to another

Confusing, attempting to elicit conflicting statements

Ignore and answer consistently

Time bomb

Most difficult, complicated, or contentious questions are presented at the end of the deposition

Hope that fatigue will cause inconsistencies or wrong answers

Ask for a break

Ignoramus

Appears ignorant in an attempt to get deponent to volunteer information

May leave time after an answer to prompt deponent to volunteer more

May use body language to prompt deponent to volunteer information

Common misconceptions

It is not a forum to defend yourself

It is not a forum to tell your story (your defense attorney is not going to elicit

your story then, and the plaintiffs’ attorney is only interested in facts that

help her client

It is not a forum to prove you are a smart doctor

Remember

Remember that a deposition is an adversarial proceeding

Never consider a deposition as “routine”

Listen to the entire question

Make certain you understand the question

Ask that a question be repeated if necessary

Remember

Do not attempt to rephrase a question

Do not accept a summary of facts without considering the accuracy of

those facts

Beware of misstated facts or prior testimony attempting to elicit

information

Look through medical records or other materials at hand

Do not take anything with you to the deposition

Remember

Do not allow yourself to be rushed into answering

Do not volunteer information or speculate

Avoid absolutes such as “always” and “never”

Avoid saying “honestly” or “to be honest”, from which it may be implied

that prior answers were not honest ones

Do not verbally spar with the questioning attorney—you will always lose

Deposition

“The other side would love to hear all of their thinking…because they

will give that to their experts to tear apart and come up with 30 other

reasons why [that explanation] wasn’t right.”

Uraneck K, Proper preparation is the key to a successful deposition, American College of Emergency Physicians News, October 2002.

Deposition

“And the fun part of the deposition is that there isn’t going to be a judge

there to rein you in so you can ask them anything you want.”

“Some deponents have even been asked to empty their pockets at a

deposition.”

Uraneck K, Proper preparation is the key to a successful deposition. American College of Emergency Physicians News, October 2002.

Deposition

“Also, the plaintiff’s attorney can be so punishing in their questioning that

the witness would rather settle than face a repetition of the experience at

trial. These tactics are considered ethical….”

“Everything in the deposition is teased out, taken out of context, used

against you.”

Uraneck K, Proper preparation is the key to a successful deposition. American College of Emergency Physicians News, October 2002.

Coping

Minimizing the emotional,

psychological, and physical

impact on the pathologist

and the pathologist’s family

High stress event

“Becoming involved in a lawsuit can be a significant event for anyone,

including a physician. It can require a great deal of the physician's time

and effort, can be emotionally draining, and can serve a psychological

blow to the physician's professional psyche.”

Berry DB. The physician's guide to medical malpractice. Proc (Bayl Univ Med Cent). 2001 Jan; 14(1): 109–112.

“… a source of much fear…”

“The lawsuit arrives like a modern day version of the ‘Black Spot’…”Sacopulos MJ. Physicians aren’t alone: understanding and dealing with malpractice litigation stress.

http://www.beckersspine.com/orthopedic-spine-practices-improving-profits/item/11117-physicians-arent-alone-understanding--dealing-with-malpractice-litigation-stress

“In the book, pirates are presented with a ‘black spot’ to officially

pronounce a verdict of guilt or judgement. It consists of a circular piece

of paper or card, with one side blackened while the other side bears a

message and placed in the hand of the accused. It was a source of

much fear because it meant the pirate was to be deposed as leader, by

force if necessary—or else killed outright.”Black spot (Treasure Island), Wikipedia. https://en.wikipedia.org/wiki/Black_Spot_(Treasure_Island)

How serious is a medical malpractice lawsuit to a

physician?

Allen TC. Medicolegal issues in pathology. Arch Pathol Lab Med. 2008 Feb;132(2):186-91

“…not a vocation…”

“For many physicians this is not a vocation, this is their life and being sued in an invasion of their life.”

Sacopulos MJ. Physicians aren’t alone: understanding and dealing with malpractice litigation stress. http://www.beckersspine.com/orthopedic-spine-practices-improving-profits/item/11117-physicians-arent-alone-understanding--dealing-with-malpractice-litigation-stress

“…[T]he grinding, drawn-out repercussions of a prolonged lawsuit frequently require…extensive support, including professional mental health resources.”

Coping with the stress of medical professional liability litigation. Committee on Professional Liability, ACOG. https://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Professional-Liability/Coping-With-the-Stress-of-Medical-Professional-Liability-Litigation

“…devastating.”

“…physicians are acutely sensitive to any suggestion that they have failed

to meet the standard of care or are not ‘good’ doctors. Their honor—that

sense of personal integrity that most people cherish—is at issue, and the

threat of its loss is devastating.”

Charles SC. Coping with a medical malpractice suit. West J Med 2001 Jan; 174(1): 55-58.

Just how devastating?

Major depressive disorder:

up to 39%

Adjustment disorder:

up to 53%

Onset or exacerbation of physical illness:

up to 15%

Acknowledge alcohol or drug misuse:

less than 2%

How to cope

“A feeling of being out of control pervades the litigation

process…regaining mastery is central.”

“…the more rapidly this is achieved, the better because chronic stress can

lead to further disability.”

Charles SC. Coping with a medical malpractice suit. West J Med 2001 Jan; 174(1): 55-58.

Knowledge is power

“…an adequate knowledge base about what can be anticipated

psychologically and about the process in which the physician is now a

participant…”

Charles SC. Coping with a medical malpractice suit. West J Med 2001 Jan; 174(1): 55-58.

Social support is critical

“…physicians need to share their feelings and reactions with someone

who is trustworthy, understanding, and sensitive to their concerns…”

“Legal counsel will advise not to talk about the details of the case to

anyone.”

“It is not…good psychological advice.”

Charles SC. Coping with a medical malpractice suit. West J Med 2001 Jan; 174(1): 55-58.

Social support is critical

Discuss with your attorney early in the process

Know the limitations of what can—and importantly what cannot—be

discussed with partner, colleagues, support group, or counselor

Regain control and self-esteem

Use your social support as fully as possible

Take care of yourself

Exercise; spend time with a hobby

Take that much-needed vacation

Understand your litigation process

Get to know your attorney

Learn the anticipated timeline

Learn your role in each step of the process

Schedule enough time off for the trial

Regain control and self-esteem

Change the meaning of the event

You are not a “bad doctor” or “incompetent”; change that narrative

Be objective; acknowledge the “truth” about the event in question

Sued physicians are often the best in their field, taking care of the most high-risk

patients; and most are vindicated in the end

Helpful words of advice

“…think of the lawsuit as a reflection of our times, more than your

competence as a physician.”

“…doesn’t necessarily reflect your competence. Most ethical and

compassionate physicians are sued. This is because they won’t shy away

from caring for the most medically complex patients, or the most

emotionally troubled patients.”

Sacopulos MJ. Physicians aren’t alone: understanding and dealing with malpractice litigation stress. http://www.beckersspine.com/orthopedic-spine-practices-improving-profits/item/11117-physicians-arent-alone-understanding--dealing-with-malpractice-litigation-stress ; adapted from Wang DC. The Kitchen Shrink: A Psychiatrist’s Reflections on Healing in a Changing World.

Helpful words of advice

“Many lawsuits are simply frivolous. [You might be] sued for simply being in

the room.”

“…focus on what’s in your control—such as continuing to practice, and

doing your best for patients. Obsessing about things not in your control

causes anxiety.”

Sacopulos MJ. Physicians aren’t alone: understanding and dealing with

malpractice litigation stress. http://www.beckersspine.com/orthopedic-

spine-practices-improving-profits/item/11117-physicians-arent-alone-

understanding--dealing-with-malpractice-litigation-stress ; adapted from

Wang DC. The Kitchen Shrink: A Psychiatrist’s Reflections on Healing in a

Changing World.

Helpful words of advice

“…the lawsuit will pass.”

“…focus on why you got into medicine in the first place. All the human

improvement and relief you provide should not be marred by some

litigious miscreants.”

Sacopulos MJ. Physicians aren’t alone: understanding and dealing with malpractice litigation stress. http://www.beckersspine.com/orthopedic-spine-practices-improving-profits/item/11117-physicians-arent-alone-understanding--dealing-with-malpractice-litigation-stress ; adapted from Wang DC. The Kitchen Shrink: A Psychiatrist’s Reflections on Healing in a Changing World.

Thank you!