ll physicians are vulnerable to a medical malpractice lawsuit. Anesthesiologists are no exception. On average an anesthesiologist is sued once every eight years. During my former career as a medical malpractice attorney, I witnessed a wide spectrum of emotional responses from physicians who were faced with a malpractice lawsuit. Their responses were affected by numerous factors: the degree of patient injury, their personal involvement in the case, their emotional and physiological predisposition and their prior life experiences. Ninety-five percent of physicians describe periods of emotional distress during the litigation process.¹ This emotional distress can impact not only the course of litigation but also a physician’s health, career and personal life. Many physicians interpret a lawsuit as a personal attack on their professional competence, a personal failure and a professional shame.² Lawsuits reshape a career. Thereafter most physicians improve documentation and record keeping, practice more defensively and reduce their exposure to high-risk procedures and situations. Sadly some will even consider retirement.²

After an unexpected injury to or death of a patient, a physician may feel unduly responsible or guilty. These feelings are intermingled with sorrow, dread and the anxiety of potential litigation. A lawsuit can create anger, shock and apprehension about the personal and financial ramifications of the potential outcome.² A physician’s response to malpractice litigation has been compared to the Kubler-Ross model, which identifies the stepwise progression of emotions experienced after personal loss and grief: 1) numbness, denial and disorganization; 2) anger and protest; 3) sadness and bargaining; and 4) acceptance and working through.³

The emotional toll of a lawsuit can deleteriously affect a physician’s health. There is an increased risk of myocardial infarctions, strokes and even death in those with pre-existing hypertension or coronary artery disease. Physicians must make a concerted effort to protect their health during this litigation process. Those who have not sought prior medical attention should preemptively identify a primary care physician, resist the impulse to self-diagnose and be receptive to medical treatment.²

Mental health can be affected during litigation. Severe depression can afflict 27 percent to 39 percent of physicians.² Suicide is a risk in this subpopulation. Within the ASA Closed Claims Project database, there are five documented cases of suicide as a direct result of medical malpractice litigation and patient injury. In one particularly sad and tragic case, the anesthesiologist committed suicide before learning that she would be dropped from the case with no fault assigned.

A physician’s demeanor and outward presentation can have a significant impact on the litigation process. The plaintiff attorneys anticipate the emotional toll of litigation on the physician. They evaluate the physician’s demeanor and highlight any fallibility. I remember the first deposition I attended as a law clerk. It was the deposition of an orthopedic physician. Prior to this deposition, the senior partner gave me my first and most valuable lesson in malpractice litigation: Assess the demeanor and emotional condition of the defendant physician and use it to your advantage. He identified three general categories of physician demeanor: The “Defensive Physician,” the “Catastrophic Physician” and the “Adaptive Coping Physician.”

The Defensive Physician believes that he/she is infallible and incapable of wrongdoing. These individuals will respond to impending threats with defensive shields and a vigorous, offensive attitude. During their zealous defense of their perfectionism, these physicians can appear to jurors as arrogant, pompous, angry, belittling and nasty. A skilled plaintiff attorney would guide the physician down such a path of “self destruction” during the deposition.

The Catastrophic Physician is the opposite personality to the Defensive Physician. He/she is highly self-critical and tends to anticipate the darkest of outcomes. This Catastrophic Physician risks being perceived as insecure, lacking self-confidence, unsure in responses and guilty of committing an error. This physician, although he/she can rally sympathy, is a welcome defendant for plaintiff attorneys and usually leads to an easy plaintiff verdict.

The third and by far the largest and most diverse category is the Adaptive Coping Physician. There is a small number in this group who can take the whole process in stride and cope throughout. The larger portion of this group represents physicians who are not able to cope and adapt throughout. Intermingled between periods of coping are times during which the physician is emotionally vulnerable.

The senior partner counseled me that a good attorney should be able to sense these periods of vulnerability and use it to his/her advantage. This lesson in personality assessment and human fallacies would stay with me forever. During the deposition that followed, within the first minute of the surgeon’s testimony, the partner turned to me, winked and smiled: “Category 1, the Defensive Physician,” he whispered. Soon his premonition was realized; the surgeon became agitated, argumentative and angry. His emotions led him to make critical testimony in direct contradiction to that which he had previously stated. The case settled for the plaintiff the following week.

Physicians should seek emotional support from their families and colleagues during these stressful periods. A common mistake is that physicians hide their emotions, and even the lawsuit, from others. It is important that we share our distress by looking for support and seeking professional help if needed. Education and self-enlightenment about the entire litigation process will be your best weapon not only in reducing stress but also in defending yourself. Although it seems contradictory, the physician should look for distractions such as activities and pursuits that bring self-fulfillment and enjoyment, a respite from the looming lawsuit.^2,4

As anesthesiologists we must accept that someday we may be faced with a lawsuit. This litigation will promulgate a variety of emotions, some of which could be detrimental to our own defense. The more we understand the litigation process and improve our coping skills, the more successful we will be. We should embrace the litigation process as an opportunity for self-awareness and self-improvement, qualities which will ultimately improve both our professional and personal lives.

References:
1. Charles SC, Pyskoty CE, Nelson A. Physicians on trial: Self-reported reactions to malpractice trials. West J Med. 1988; 148:358-360.
2. Charles SC. Coping with a medical malpractice suit. West J Med. 2001; 74:55-58.
3. Kerr C. The personal cost of medical litigation. MJA. 2004; 181(7):384-385.
4. Weiss G. You’ve been sued. There’s help. Medical Economics. Feb 7, 2003; 80-86.

Edward Michna, M.D., J.D., is Director, Pain Trial Center, Department of Anesthesia, Brigham & Women’s Hospital, Harvard Medical School, Boston, Massachusetts.