EPs Facing Litigation Need Support
An EP starts a shift, only to find a certified envelope containing a letter of intent to sue in the department mailbox. There is growing awareness of the toll malpractice lawsuits takes on EPs who suddenly find themselves defendants.
“It’s well-known that being involved in litigation has a significant emotional and sometimes physical effect on providers,” says Gary W. Tamkin, MD, FACEP, vice president of provider development at VEP Healthcare, a Concord, CA-based ED and hospitalist staffing company.
Tamkin has consulted with many EPs who were sued for malpractice. They suffered from a wide range of ailments, including depression, anxiety, self-doubt, sleeplessness, and strained relationships. “It can even lead a physician to early retirement or even worse, suicide,” says Tamkin, associate clinical professor of emergency medicine at University of California San Francisco School of Medicine.
Self-care is the key to surviving litigation, according to Tamkin. Ideally, this begins long before the notice of intent to sue arrives. “To have that armor on you each day puts you in a better position to deal with this successfully,” Tamkin offers. “It’s so important to address burnout every day. You can’t predict when one of these events will hit.”
Tamkin says self-care is a “risk mitigation tool” as well since EPs are more likely to experience cognitive errors if they are burned out. “To realize that if you practice long enough a lawsuit is almost inevitable can be very self-preserving,” Tamkin adds. “It’s not personal; it’s just a part of doing business.”
EPs are used to making fast decisions in life-or-death situations. “Malpractice litigation is not, in the words of an ED provider, a ‘quick disposition.’ Lawsuits are a part of your life for months or years on end,” Tamkin observes.
The fact that juries and judges may not understand the medical issues at hand is especially difficult for EP defendants. “A jury might see something that has gone terribly wrong for a patient and wants to see them get something to help them through the situation, possibly regardless of whether the EP actually played a role in the outcome,” Tamkin explains.
Even if the standard of care was clearly met, juries have been known to return a verdict in favor of the plaintiff anyway. Some feel sympathy for the injured plaintiff without considering how the verdict will affect the EP defendant. “They may not see it as the EP’s money,” Tamkin notes. “They might view the aid as coming from insurance companies, who they don’t typically have much regard for.”
A recent paper on self-care of EPs addressed life-changing stress, including malpractice litigation.1 “Being named in a lawsuit is very stressful,” says Steven Selbst, MD, a study co-author, EP at Nemours/Alfred I. duPont Hospital for Children in Wilmington, DE, and professor of pediatrics at the Sidney Kimmel Medical College of Thomas Jefferson University in Philadelphia.
Many EPs who find themselves defendants question their own skills and experience anger and depression. “Some get to the point where they leave medicine altogether,” Selbst laments. “Some have a significant psychiatric response to it and need professional help.”
Selbst says the same could be said for EPs involved in a medical error that harms a patient. Some hospitals have developed support teams for physicians in this circumstance to be sure they are coping well.
“There is so much emphasis now on physician wellness,” Selbst observes. “The whole country has recognized that the burnout rate and the suicide rate are much higher than the general population.”
Involvement in an error or malpractice lawsuit are known contributing factors. “Hospitals are recognizing that you have to worry about the medical staff and their well-being,” says Selbst, noting that defense attorneys can be a major source of support for EP defendants. “Hopefully, they are looking out for the well-being of the physician as they are going through this terrible ordeal, which lasts for a very long time.”
The first thing defendants are told is to not talk to anyone about the case. It is important to note that this pertains only to the details of the lawsuit, not the physician’s emotional reaction to it. “You can talk to your spouse, friends, and family about how you are feeling,” Selbst says. “If you are really not coping well, you can talk to a professional.”
- Mull CC, Thompson AD, Selbst SM, et al. A call to restore your calling: Self-care of the emergency physician in the face of life-changing stress-Part 1 of 6. Pediatr Emerg Care 2019;35:319-322.
Many EPs who find themselves defendants question their own skills and experience anger and depression.
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