When I was first named in a medical malpractice lawsuit, I was working solo nights in a community emergency department. I was five years out of residency, just hitting my stride as an ever more competent and confident physician. One summer night in 2006, I cared for a young woman with a complex and confusing presentation. I was attentive, thoughtful, and thorough. But the simple act of picking up that chart set in motion a painful journey through the medical malpractice litigation machine that would span 12 years, two jury trials, and more sleepless nights than I can count.
Explore This IssueACEP Now: Vol 38 – No 08 – August 2019
I remember with crystal clarity the moment I was given notice of the suit. In that instant, my whole carefully constructed professional persona was smashed—not only by the knowledge that I had been named as the sole physician defendant in what would become a very high-stakes lawsuit but also with guilt over my patient’s outcome, fear that I actually was the incompetent physician the legal complaint described so vividly, and an overwhelming sense of shame and isolation.
Nothing in my training had prepared me for this. We’d had some lectures on defensive charting and risk management (as if risk can be truly “managed” in emergency medicine) but not one word about what happened after you were actually named. What then? I was a pariah; obviously we weren’t taught about this because it simply didn’t happen to good doctors who followed the risk management golden rules, the thinking went. I had no idea whom to turn to or even what the next step was in the legal process, but I didn’t want to talk to anyone around me. My personal shame kept me from reaching out to other physicians who might have been able to help (had I even known who they were), and I simply had never heard of any relevant resources to consult.
Experience makes a fine teacher, and what I now understand is that litigation happens to the majority of emergency physicians over the course of their career. Education about the process and its emotional impact should be included in our training. If knowledge and simulation are keys to mastering complex and terrifying procedures, litigation is no different. We have a burnout and suicide problem in medicine, as we are slowly starting to acknowledge; litigation stress, while not the only cause, plays a front-and-center role in it.1,2
Over the past two years, I have been collecting interviews with physicians who have been though the litigation process as well as psychologists, lawyers, and other published experts on medical malpractice litigation. Recently, I have started to assemble these into a series of free podcasts, entitled “Doctors and Litigation: The L Word.” My hope is to educate physicians on the “what happens next” of being sued and also to destigmatize the process itself, shining a light on litigation stress and “malpractice stress syndrome.”
Litigation Stress: What Is It?
If you’ve lived through litigation, you likely have a sense of what litigation stress is, but you may not have known that it exists as a well-defined term. You simply know it because you’ve experienced it in some form: sleeplessness, anxiety or depression, depersonalization or burnout, imposter syndrome, disordered eating. What you may not know is that litigation stress is a normal and expected human reaction to an abnormal psychological stressor. As much as physicians, especially emergency physicians, like to think they are exempt from normal human emotions and reactions to stressful situations, they are not. Pretending otherwise is to our detriment.
In the coming months, this column will cover topics such as litigation stress. We will discuss how to prepare practically and psychologically for depositions and trial, plus explore the ethics of expert witness testimony, the effect of litigation on relationships, and many more common problems. By doing this, we will not only arm ourselves with knowledge and know-how, we will decrease any sense that we are in this alone. Trust me, we’re not.
Dr. Pensa is clinical associate professor of emergency medicine at the Warren Alpert School of Medicine of Brown University in Providence, Rhode Island; associate director (education) of the Emergency Digital Health Innovation program at Brown; and creator and host of the podcast “Doctors and Litigation: The L Word.”
- Balch CM, Oreskovich MR, Dyrbye LN, et al. Personal consequences of malpractice lawsuits on American surgeons. J Am Coll Surg. 2011;213(5):657-667.
- Andrew LB. Physician suicide. Medscape website. Accessed July 24, 2019.