Coping with Litigation Stress
by Peter W. Brandt
A study by Dr. Sara Charles of the University of Illinois - Chicago School of Medicine, in conjunction with the Department of Psychiatry, showed that of the 107 physicians who had been through a malpractice case from the date of the misadventure through trial to verdict found they reported the following effects:
- 97% had some physical or emotional reaction to being sued;
- 86% had feelings of inner tension;
- 80% had bouts of depression;
- 78% reported frustration;
- 70% reported anger; and
- Two-thirds had feelings of dissatisfaction with their careers.
The most important point of the study was that these emotions were experienced by care providers regardless of whether they won or lost at trial.
The stress of a malpractice suit on care providers, physicians and nurses alike, can be monumental. Risk managers are often involved in helping the care provider deal with this stress because the risk manager is at the front line of dealing with claims, misadventures and untoward or unexpected outcomes. The stress of a malpractice suit can manifest itself in depression, denial and even departure from the practice of medicine.
Bill Kanasky, Jr., PhD, Senior Litigation Consultant for Courtroom Services, Inc., has written about how litigation stress is additive to the inherent stress of a medical career. A career in medicine involves long hours, pressure from insurance companies, governments and hospital administration, stress inherent in providing effective medical care for complex patients, constantly dealing with disease, illness, disability and death. When litigation is added to those stressors, the result is intense physical, mental, emotional and behavioral responses. These stressors can endanger the health professionals' mental, physical and emotional wellbeing. By their nature, health professional are self-critical. They have difficulty with feelings of guilt and an exaggerated sense of responsibility. Care providers are acutely sensitive to any suggestion that they have failed to meet the standard of care. They believe that their honor is at issue and the threat of its loss is devastating.
The stress responses to litigation are many. Of a physical standpoint, care providers can experience sleep disturbance, low appetite, nausea, fatigue, headaches, insomnia, muscle aches and stiffness, and heart palpitations. From a mental health perspective, care providers have been seen to have ruminating thoughts, low concentration, low confidence, confusion, memory problems, over-thinking and second-guessing. From an emotional standpoint, care providers can experience fear, guilt, anger, depression, anxiety, worry, irritability, and impatience. Socially, care providers can become withdrawn and isolated. Their behaviors can change. They can manifest with substance abuse and a cessation of healthy behaviors.
How the Risk Manager Can Help
1. Be available to the care provider. This means giving the care provider your cell phone number and indicating a call at any time is perfectly acceptable. The risk manager, in essence, becomes a lifeline to the care provider who is being sued. The discussions can be held in confidence in most circumstances. Allowing care providers to have access to you 24 hours a day can mean many hours on the phone. Often the risk manager is the only individual who the care provider believes will understand the concerns involved with being sued. However, the risk manager will actually find this is one of the most rewarding aspects of risk management.
2. Strongly encourage the care provider sued for malpractice to communicate their emotions with their trusted friends and colleagues. By staying in communication with friends and colleagues (except those colleagues who may also be involved in the lawsuit) talking about the stress of malpractice helps the care provider keep perspective. It nourishes resiliency. It helps provide insight.
3. Provide a contact to another care provider who has made it through the litigation process and who has come through intact. These individuals are typically willing to consult with the care provider who is having any of the many problems dealing with litigation stress. Encourage a discussion about recognizing symptoms - physical, mental, emotional and behavioral - as being part of the litigation process. Once the care provider understands the manifestations of stress related to being a defendant, dealing with those symptoms when they occur becomes much more manageable.
4. Remind the care provider that there are those things in life they can control and those they cannot. Care providers cannot control all medical errors. They cannot stop lawsuits from being filed. Remind the care provider that exerting energy over things that one cannot control is a waste of energy. However, the care providers can control their perspective of patients. Once sued, the care provider may start to look at each patient as a potential plaintiff in a medical negligence claim. The care provider can control this by looking at each patient as essentially someone who is good and needs help. This will increase the care providers' sense of self worth.
Also, discuss with the care provider the values and honor he or she has held throughout their career. Their values and honor can never be taken away by any jury or any legal process. Emotion over the lawsuit can clearly affect one's belief in oneself and one's abilities. As noted above, care providers are typically self-critical. Add to that a malpractice suit and self-criticism can overwhelm the values and honor associated with the careful exercise of medical judgment. As risk manager, remind the care provider that he or she has always had and will continue to have values and honor associated with their own practice of medicine. Just saying those words can bring perspective back to the care provider.
5. Express to the care provider early on what to expect. Litigation is a rollercoaster and the care provider does not have control of the brakes. Emotions will ebb and flow. One day the care provider will want the case to be settled at all costs; the next day, the care provider will want the case litigated to the highest court in the world. Tell them they might experience manifestations of the stress of litigation. Encourage the care provider to seek medical help the moment any stress-related symptoms develop or manifest.
6. Restore confidence in mastery. Remind care providers that it is the very best in their respective fields who are sued because they are the few who treat high risk patients.
7. Shrink the litigation. Care providers are self-critical, but they are also good at compartmentalization. Discuss envisioning the litigation as a file box placed in the corner of the office. The care provider will need to open the "box" from time to time, but it has a "lid" which can be used to keep the "box" closed during those long periods of time when little activity is taking place in the litigation. Compartmentalization of the litigation helps shrink its importance.
8. Encourage the care provider to be involved in the litigation. This allows for the assertion of control that is otherwise lost. It also has the ancillary benefit of increasing the chances of success.
9. Make clear to the care provider that malpractice litigation is not about competency. It is about compensation. This fact becomes clear when, on many occasions, plaintiffs at deposition indicate they have absolutely no criticism of the defendant care provider. This underscores that malpractice litigation is all about compensation and not about the care provided.
10. Remind care providers sued in malpractice that most are vindicated. Nationwide, there is an approximately eighty-six percent (86%) success rate in cases that move to trial. Most people (jurors) appreciate that outcomes in medicine cannot always be controlled even when all of the care is appropriate.
11. Organize stress management. In a study noted in the Journal of Applied Psychology (2007), hospitals that implemented an organization wide stress management program had significantly fewer claims of medical error compared with an equal number of hospitals that had not initiated such a program. This study showed that the over twenty-two hospitals that implemented organization-wide stress management programs also reduced turnover and increased satisfaction of staff.
Resources
A tremendous resource for helping care providers deal with the stress of litigation can be found at www.physicianlitigationstress.org. This webpage is a resource center for sources of support and information regarding traversing the legal process.
References:
1. Charles, S. C., MD, "Coping With A Malpractice Suit," Western Journal of Medicine, 174 (12): 55-58, (2001). 2. Charles, S.C., MD, et al, "Sued and Non-Sued Physicians: Satisfactions, Dis-satisfactions, and Sources of Stress," Psychosomatics, Vol. 28, Issue 9, Sept. 1987, pp. 462-468. 3. Kanasky, Bill Jr., PhD, "Litigation Stress" (2012) (Bill Kanasky, Jr. is the director of litigation psychology at Courtroom Sciences, Inc., a national litigation consulting firm.) 4. Podsakoff, Nathan P., et al, "Differential Challenge Stressor-Hindrance Stressor Relationships with Job Attitudes, Turn-Over Intentions, TurnOver, and Withdrawal Behavior: A Meta-Analysis," Journal of Applied Psychology, 92.2 (2007): 438.
Peter W. Brandt is the managing partner for the law firm of LivingstonBarger in Bloomington, Illinois, where he practices healthcare law. Peter has authored numerous articles and book chapters regarding trial practice and is a frequent lecturer on the science of trial advocacy. Peter can be reached at [email protected]
