Back in the day, as a newly-minted intern starting my residency in Emergency Medicine, I remember one of my venerated senior attendings say to me at the end of a long night shift, “You have an exactly 100% chance of being sued during your career. So stop worrying about it.”
Of course, that did almost nothing to reassure me.
Although the statistics don’t actually bear out a 100% risk of litigation, the threat of a malpractice claim is real for many emergency physicians. A study conducted by the American Medical Association found that more than 42% of physicians across all specialties have been sued at least once and more than 20% report being sued two or more times . The number and frequency of claims varied quite a bit among the specialties in this report, with the surgical subspecialties ranking high on the list and pediatricians and psychiatrists at the bottom. Malpractice rates in emergency medicine hovered near the average, at about eight percent per year. Disconcertingly however, over 75% of emergency physicians over the age of 55 had experienced malpractice claims, while nearly 50% of emergency physicians of all ages reported experiencing at least one claim.
Residents can be sued too. A study in the Journal of the American Medical Association estimated that residents have been named in approximately 22% of lawsuits . In most cases, they are named as codefendants with the attending physician on the case and may be held to the same standards of care. Although the attending is usually determined to be ultimately responsible for the care of the patient, malpractice lawsuits become part of the resident’s permanent professional record should the claim result in payment .
FEAR OF LITIGATION
The looming specter of malpractice casts a long shadow, even affecting physicians who haven’t been served. Many physicians in a variety of specialties admit to practicing defensive medicine—referring to the practice of performing a diagnostic test or treatment that primarily serves the function of protecting the physician against possible future litigation, rather than in the best interests of the patient’s health. Emergency physicians in particular practice in an information-poor, high-risk, technology-rich environment that lends itself to defensive decision-making. This inevitably leads to increased costs and a greater rate of false-positive findings that adversely affect patients. Unfortunately this culture has become so engrained, that even with tort reform, physicians continue to practice defensively .
Merely the threat of being sued may contribute to decreased career longevity. One study found that emergency physicians cited malpractice and litigation stress as one of the top three reasons for burnout and a desire to leave the field . Furthermore, as this study and many others have found, physicians who report high levels of burnout are also more like to retire early.
MEDICAL MALPRACTICE STRESS SYNDROME
There are real physical, mental, and emotional costs to being sued as a physician. Medical Malpractice Stress Syndrome (MMSS) [6,7] shares many features of Post-traumatic Stress Disorder (PTSD). Victims suffer psychological distress, often manifesting as anxiety and depression, and may also experience physical symptoms such as the development of a new physical illness or exacerbation of a pre-existing one, such as diabetes or hypertension. Physicians with MMSS report feelings of isolation, negative self-image, irritability, and difficulty concentrating. They may experience insomnia, fatigue, or hyper-excitability. They may be prone to compulsively over-ordering tests on patients and consider changing careers. Physicians with MMSS may resort to self-medication with alcohol or recreation drugs and in extreme cases may contemplate—or complete—suicide.
Not all everyone named in a lawsuit will ultimately suffer from MMSS. However, almost all physicians will experience at least some depression, anger, shame, and feelings of isolation. This is independent of whether or not any negligence, real or imagined by the physician involved, actually occurred.
KNOWLEDGE IS POWER. Demystification of the legal process goes a long way toward mitigating anxiety. Discuss the anticipated steps with a representative from your risk management department, your lawyer, or experienced colleagues. Read published books and journal articles on the topic. The American College of Emergency Physicians offers a number of webinars and other resources on its website. See below under “Resources on Litigation Stress” for links to specific sites.
SUPPORT NETWORKS. Although you should not discuss any details about the case itself with anyone aside from your legal counsel, this does not mean that you must keep complete silence about the issue. It is important to share any feelings of guilt, shame, depression, and anger with trusted friends and family. This will protect against feelings of isolation by preventing withdrawal into yourself or your work.
CONFIDENTIAL PEER COUNSELING. Many risk management groups offer confidential peer counseling networks. Often conducted over the telephone, physicians can anonymously contact another physician who has also been sued in the past. This not only provides a means of sharing emotions with a truly empathic individual, it also serves as another means of learning more about the litigation process and what to expect.
MENTAL HEALTH PROFESSIONALS. It can be useful to seek treatment from a licensed mental health professional and most certainly if you feel persistent depression, guilt, hopelessness, thoughts of self-harm, and any of the symptoms consistent with Medical Malpractice Stress Syndrome. They can provide a source of emotional support, safe space for brainstorming effective coping strategies, and prescribe medications if necessary.
MALPRACTICE PREVENTION. Taking an active role in your own malpractice prevention can be immensely therapeutic. Better patient-physician communication skills and demonstration of empathy has been shown to decrease rates of litigation . Many courses exist to improve these skills in physicians. Similarly, continuing education on documentation, conducting a root cause analysis, and understanding administrative structure can also be effective in preventing future lawsuits.
RESOURCES ON LITIGATION STRESS
- Kane, CK, Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians, AMA Center for Economics and Health Policy Research, Aug 2010, accessed at http://www.ama-assn.org/ama1/pub/upload/mm/363/prp-201001-claim-freq.pdf Accessed Mar 28, 2015.
- Kachalia A, Studdert D. Professional liability issues in graduate medical education. JAMA. 292(2004):1051-1056.
- Bailey RA. Resident Liability in Medical Malpractice. Ann Emerg Med. 2013; 61:114-117.
- Levin ML. To the editor: The Effect of Malpractice Reform on Emergency Department Care. N Engl J Med. 2015; 372:191-192.
- Practice satisfaction, occupational stress, and attrition of emergency physicians. Wellness Task Force, Illinois College of Emergency Physicians. Acad Emerg Med. 1995; 2(6):556-63.
- Kelly JD. Malpractice Stress. Orthopedics. 2008; 31(10):976-977.
- Sanbar SS, Firestone MH. Medical Malpractice Stress Syndrome. Accessed at http://www.acep.org/uploadedFiles/ACEP/Professional_Development/Faculty_Development/Medical%20Malpractice%20Stress%20Syndrome%20article%20for%20web.pdf Accessed Mar 28, 2015.
- Levinson W, Roter DL, Mullooly JP, Dull VT, Frankel RM. Physician-patient communication. The relationship with malpractice claims among primary care physicians and surgeons. JAMA. 1997;277:553–559.