It may sound simple, but as anyone who has gone through a suit knows, it’s anything but. No matter how likely a positive outcome may be, for most physicians, the moment we get sued we have already lost on some level. Our compassion, our idealism and our self-confidence are at risk. Our time gets swallowed up as we spend countless unreimbursed hours in discussions with attorneys preparing for depositions and trial. Even our free time, the periods of relative “quiet” where nothing is happening with the suit, are stolen away — we can’t help but run the case over in our minds and consider the ramifications of a negative outcome.
How can you get to a point where you accept the process as simply a game of strategy, like a chess match? A good model for how this process occurs is outlined below. It is based on the Elisabeth Kübler-Ross model describing the five stages of grief as written in her book, On Death and Dying. Not everyone goes through all five stages, but everyone goes through at least two.
When you hear of being sued for the first time, you are numb. You feel like you’ve been sucker-punched. And you don’t know what to do.
Frequently, after the initial shock of getting sued, the physician denies the gravity of the situation. Perhaps the physician is so convinced of their innocence that they assume the case will simply “go away.” While their lawyer may tell them this is unlikely, the doctor refuses to face reality. As a consequence, they ignore their responsibilities as a client and fail to listen to their attorney’s advice.
Another scenario has the physician in denial about a bad case (i.e. one in which there is obvious malpractice or where no expert will give testimony to defend their actions). Perhaps their attorney has recommended settling, and the doctor is insisting on going to trial.
Meeting with your (hopefully) compassionate attorney often helps you acknowledge your situation and deliver you out of denial. In fact, a good attorney can play the added role of psychiatrist in this scenario. However, some physicians are very resistant. They are very stubborn and often refuse to exit this stage.
Unfortunately, there are many physicians in this situation, and it can be very detrimental to their case. Doctors in denial are loathe to take any advice. Doctors who don’t take advice can harm their case before it even gets going.
Not surprisingly, the anger stage takes a long time to move through. Many doctors I speak to about previous lawsuits are still angry, even at the time of trial. What are they angry about? Obviously physicians are angry about being sued. But the issues can be more complex. Physicians may be angry at the patient for suing them, and at the plaintiff’s attorney for accepting the case. They are likely angry at “the system” for creating a situation that can disrupt their life and their practice.
Most often, though, physicians are angry at themselves. On some level, they blame themselves for doing or not doing something that would have prevented the bad outcome that led to a lawsuit.
Wherever you direct your anger, if you are not careful, you will jeopardize your performance at the deposition and trial. Being angry can prevent you from thinking clearly. If a jury perceives this, it can prejudice them against you.
Physicians need to present a calm and controlled appearance at the jury. A loose cannon will appear as just the kind of physician who would be likely to commit malpractice. Remember, in a courtroom appearance is everything. You must reconcile the anger you feel to project an ideal defense.
To that end, anger management is critical. Certainly, having constructive outlets to vent and deal with your anger, such as family and friends, can help. One of the most beneficial means of overcoming your anger is through discussions with other physicians who have been sued and survived. However, some physicians require professional help. Don’t be ashamed to seek counseling. It can be a career-saving measure.
“If I practice defensive medicine, then I won’t get sued and have to go through this ever again.” You think of all the ways of avoiding a lawsuit, and you don’t deal with the issues at hand. You convince yourself that these changes will make you a better and more insulated physician. Though this stage does not necessarily have as much harm to your current case, it can act as a distraction. And it hinders your ability to accept your circumstances.
There is a bright side to feeling sad all the time. It means that you are in the final stage of grief. I know a lot of physicians who are on the brink of tears for weeks or months at the very thought of their case. Their fears and frustrations are very much at the surface and they have trouble keeping them bottled up. Clearly, this lawsuit is affecting them on a very personal and emotional level. However, if these emotions show through when you are in court, once again, it can be devastating for your case. The jury will wonder about your competence if you are welling up with tears while at trial.
Once again, having a support system to get you through this stage is essential. Your attorney often plays a crucial role in guiding you at this time by giving you critical confidence in your case and in yourself. Once you can reconcile the self-pity you feel as a result of the frustrations of the lawsuit process, you will be a stronger person and better physician.
Emotional detachment and objectivity is the goal to get us to acceptance. As physicians we become familiar with this when we treat patients with devastating conditions. It doesn’t mean we don’t care, but we rely on objectivity to help us make clear decisions.
When dealing with the emotional trauma of a lawsuit, the same credo applies. In the case of medical malpractice, you are in the final stage of acceptance when you tolerate your circumstances. You may not like it, but to heal you must acknowledge that being sued is part of the cost of doing business. Only when this occurs are you best able to act on your own behalf. Knowing the rules of the game, you are now ready to play to win.
Nobody said it would be easy. In fact, the process is very hard. How does the physician successfully move into acceptance? Time, as always, is a key to healing. And as mentioned above, having a good, sympathetic attorney helps. Most importantly, having a strong support system of friends, family and colleagues will make it easier to get through this as well.
If you are resistant, it may take a long time for this healing to occur. However, it is vital that you do everything possible to move towards a resolution of these stages of emotional healing. They are natural reactions to being sued and taking each stage in a step-wise fashion, without panicking, can make the difference in your case.
1 Pay attention to your attorney. They have had many clients in your situation and they know how to best bring you through the process.
2 Focus on your case. If you concentrate on the particulars, there will be less uncertainty and thus, less anxiety.
3 Be objective. The emotional detachment you use to practice medicine effectively is well applied to your malpractice case.
4 Learn to play the game. I know this is your life, and it does not seem like a game, but a lawsuit has opponents who use strategy to prevail. You need to learn the rules and play to win.
5 Ask for help. From your friends, from your colleagues, from your family, from your attorney, and from a psychiatrist if necessary. Don’t let your problems coping ruin your case and harm your career.