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Surviving the Stress of Being Sued

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Surviving the Stress of Being Sued and

Minimizing the Risk that It Will Happen

Again

A WEBINAR presented by

Medical Insurance Exchange of California

Oakland, California March 22, 2012

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Sued physicians comment…

• “I’m being sued? By whom? It must be a mistake!”

• “I experienced emotions similar to the five stages of

grief.”

• “I felt tremendous, tremendous anxiety.”

• “Depression crept into the picture.”

• “My whole world was being threatened by something

I thought could take it all away.”

• “I had to face reality, it wasn’t going away.”

What does the data show?

• Analyzed malpractice data from 1991 through

2005 for all physicians covered by a large

professional liability insurer with a nationwide

client base. Reported on 25 specialties.

Anupam B. Jena, MD, PhD, Seth Seabury, PhD, et al., “Malpractice Risk

According to Physician Specialty,” August 18, 2011, NEJM, 365;7;629-

636

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• Results: Each year during the study period:

– 7.4% of all physicians had a malpractice claim

with 1.6% having a claim leading to payment

– 78% of all claims did not result in payments to

the claimants

– 85%+ of all MIEC claims are closed without

payment to the claimants


• The portion of physicians facing a claim each

year ranged from – 19.1% Neurosurgery

– 18.9% Thoracic-cardiovascular surgery

– 15.3% General surgery

to – 5.2% Family medicine

– 3.1% Pediatrics (low frequency, but high severity)

– 2.6% Psychiatry

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• Mean indemnity payment: $274,887

• Median indemnity payment: $111,749

• Mean payment ranged from $117,832 for

dermatology to $520,923 for pediatrics


• Estimate:

– By age 65, 75% of physicians in low-

risk specialties have faced a

malpractice claim

– 99% of physicians in high-risk

specialties have faced a claim by age

65

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Physicians facing any Claim

%

Physicians facing an

indemnity Claim %

Specialty Age 45 Age 65 Age 45 Age 65

Internal medicine and

its subspecialties

54.9 88.5 12.1 34.4

General surgery and

surgical specialties

79.7 98.4 26.3 63.3

Obstetrics and

gynecology

74.1 97.2 30.0 71.2

Anesthesiology 56.7 90.3 16.6 53.2

Family medicine 42.3 76.7 10.8 31.2

Pathology 37.5 80.8 5.6 28.7

Figure 1


“Although these annual rates of paid claims are low, the annual

and career risks of any malpractice claim are high, suggesting

that the risk of being sued alone may create a tangible fear

among physicians.”

“Physicians can insure against indemnity payments through

malpractice insurance, but they cannot insure against the

indirect costs of ligation, such as time, stress, added work and

reputational damage.”

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Anatomy of a lawsuit

• The Complaint: Legal document that outlines

what the physician is alleged to have done or

failed to do to cause the plaintiff’s injury. More

than one allegation can be included.

• Filing of the Complaint may be proceeded by

public notice or a panel hearing.


• Discovery is the fact gathering phase of the

litigation

– Interrogatories are answered

– Depositions are taken under oath

– Expert witnesses are deposed on both

sides

– County medical society committee review

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• Mediation

– a confidential and informal way to resolve a

dispute with the help of a neutral third person

(mediator).

• Settlement

– In some cases, due to the facts and merits of

the case, MIEC will recommend to the physician

that the case be settled before trial.


• Trial

– A procedure governed by a set of rules that

allows each side to argue the facts of the case.

– Verdict: The decision by the judge or the jury.

• Appeal

– The losing side may request a review of the trial

record to determine if the letter of the law was

met during the trial.

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Litigation Stress

• Sources of information:

– Sara Charles, MD, Professor of Psychiatry

(emerita) at the University of Illinois Medical

School, Chicago

– Physician Litigation Stress Resource Center

(www.physicianlitigationstress.org)

– Gary Nye, MD, Psychiatrist, MIEC-insured,

member of the ACCMA Stress of Litigation

Committee

Litigation Stress

• Sources of information

– S. Sandy Sanbar, MD, PhD, JD and

the Medical Malpractice Survival Book,

2007, Chapter 2

– Louise B. Andrew, MD, JD, FACEP

from www.mdmentor.com

http://www.physicianlitigationstress.org/

http://www.mdmentor.com/

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Litigation Stress Syndrome

• The central psychological event of litigation

is the accusation of having failed to meet the

standard of care

» Sara Charles, . “Coping with a Medical

Malpractice Suit.” Western Journal of

Medicine. 2001;174:55-58


• Self-reported reactions to malpractice

litigation (97% had significant symptoms)*

– Tension

– Depressed mood

– Frustration and anger

*(Sara C. Charles, MD, 1984)

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Litigation Stress Syndrome includes

• Threats to license, credentials or prestige

• Loss of control

• Loss of reputation

• Loss of livelihood

• Professional and personal isolation


• Common Stages*

– Complaint is served: Surprise, shock,

outrage, anxiety, dread

– Consultation with your attorney:

Depending upon the initial assessment of

the case reactions include anger, denial,

concern, reassurance, panic

*(Sara C. Charles, MD, 2001)

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• Common Stages, continued…

– Lengthy period of denials and intrusions • Active attempts to erase thoughts about the case,

followed by automatic reminders and intrusive thoughts

about it

• Becoming preoccupied by pondering excessively –

increases as case-related activity increases


• Common Stages, continued…

– Lengthy period of denials and intrusions

• Working through the lengthy process and

intellectually “process” the meaning of the

case

• Relative completion of response: change in

many ways as a result of being sued

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• Self-reported reactions to malpractice

litigation

– 90% reported eroded quality of doctor-

patient relationships

– 39.1% had major depressive disorders

– 16% had physical illness or

exacerbation of a previous illness

Coping strategies

• Mastery:

– Change meaning of events

– Master the case

– Learn the culture of the court

– It’s mostly about money (it’s about

compensation – not competence

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Coping strategies

• Restore mastery and self-esteem

– Ask your lawyer to describe your role in each

step of the process

– Ask about the anticipated length of time required

to get through the case

– Make certain that you feel comfortable and trust

assigned counsel

– Take an active role with your attorney in the

defense of the case

Legal counsel practical advice

G. Patrick Galloway, Esq. of the law firm Galloway, Lucchese, Everson and

Picchi offers fours ways to reduce stress and maximize your defense:

1. Contact your malpractice carrier immediately upon receipt of Summons

and Complaint;

2. Actively participate in your case and work closely with your defense

attorney;

3. Learn to manage self-blame and self-doubt; and

4. Adjust to the lengthy legal process. Accept that the timeframe of the

legal process is out of your control.

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Coping strategies

– Family support

– Colleagues’ support (networks)

• ACCMA Litigation Stress Program /

Committee

• Peer to peer counselors through MIEC

– Healthier balance of career and other interests

• Self-care, diversions

Coping strategies

– Spiritual practices (house of worship, clergy,

meditation, etc.)

– Personal MD / psychotherapist

– Don’t self-prescribe

– Reach out

– Insurance company: Claims Department

– Your attorney

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Confidential Assistance Line

• Call:

– 650-756-7787 (Northern California)

– 213-383-2691 (Southern California)

– These numbers may be used by anyone who is concerned about a physician, a dentist, or a physician’s or dentist’s spouse who may have a problem.

Epilogue from the experts

• Learn from experience

• Modify practices as indicated

• Look at lifestyle and relationships

• Institute for Healthcare Communication

(formerly Bayer Institute) “4 E’s”

• Support tort reform in your state

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When to seek a consultant

• According to Sara Charles’ website, Physician

Litigation Stress Resource Center:

– 1. When feelings of anxiety and distress interfere with

daily work and relationships.

– 2. When self-medication and excessive reliance on

alcohol or other drugs are used to dampen anxiety or get

a good night’s sleep.

When to seek a consultant

– 3. When friends and family share observations about

changes in your behavior.

– 4. When the quality of your life and work seem

significantly compromised.

– 5. When symptoms emerge that are related to newly

developed or previously experienced physical or

emotional condition.

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How to avoid litigation

Anyone can sue a physician, but you can decrease the

possibility that the plaintiff will be successful…

4 areas that impact physician liability

I. Poorly defined office policies and

procedures

II. System failures

III. Communication breakdown

IV. Deficient documentation practices

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I. Poorly defined office policies and procedures

What increases physician liability?

A. Untrained staff 1) Poor communication skills

2) Medical advice given over the phone without your authorization and failure to document

3) Renew medications without your authorization

4) Are not viewed as members of your medical team (e.g., empower them to be your “eyes and ears”)

I. Poorly defined office policies and procedures

What increases physician liability?

B. Offices without an emergency policy or whose staff has not been trained how to respond in case of an emergency

C. Offices that fail to comply with OSHA regulations

(e.g., universal precautions, poor hand washing policies,

poor infection control policies)

D. Groups who fail to function as groups

1) Group policies are not well-defined

2) Record-keeping practices vary among providers

3) Billing practices vary among providers

4) Group members fail to communicate with each other regularly

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II. Avoid Systems Failures

Systems failures

• System failures that contribute to increased

physician liability:

– No follow-up on ordered diagnostic tests

– No follow-up when patients fail appointments

– No follow-up when patients are referred to

specialists

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Notification of Test results

• “No news is good news?”

• Design a follow-up system to ensure ordered

tests are returned

• Insist on evidence of your review before report

is filed or patient notified

• Document when and how patients are notified

of test results

Failed appointments

• Schedule the patient’s next appointment before they leave

• Document failed appointments in charts, not appointment

book or practice management system

• Have staff advise you when patients miss scheduled

appointments for instructions re: action to be taken

• Patients with urgent conditions: set call policy and follow-

up in writing

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Follow-up on referrals

• Schedule the appointment for the patient before they leave the office

• Have staff calendar when you can expect a written report from the consultant

• Prior to the patient’s next visit, ask your staff to ensure that a report was received from the consultant. If not:

– Contact the patient (Did you see the specialist?)

– Contact the consultant (Please forward your report.)

– Document conversations


How to reduce liability caused by communication

breakdown:

• Communicate effectively with patients

– Practice “patient-centered” communication

– Establish trust through empathy, understanding, some humor

– Be an active listener

– Spend time educating them, orally and in writing (and

document that you did so)

– Respond to significant phone calls

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Telephone messages

• Document significant telephone calls in the

chart, NOT the telephone log

– Staff’s notes should Include: Caller, date (mm/dd/yy),

time, contents, staff initials

– Document action to be taken or advice given

– Non-medical staff responding on behalf of MD,

document “Per Dr. XX, advised patient. . .”


• Communicate effectively with patients, cont’d.

– Survey your patients

• What do you like best about our practice?

• What do you like least about our practice?

• Ask for suggestions for change

• Pay particular attention to the unsolicited

complaint

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• Communicate effectively with your staff

– Hire competent, courteous, well-spoken

staff members who promote a healthy

physician-patient relationship

– Acknowledge their importance as your

patient relations department

– Rely on their feedback


• Communicate effectively with your colleagues

– Put referrals in writing and be specific

– Report to referring physicians promptly and in writing

– When returning patients to PCPs, do so in writing

• Communicate effectively with your mid-levels

– Be familiar with your state’s laws and administrative rules

– Have a well-defined collaborative relationship

• Acknowledge your responsibility for the acts and omissions of

your NPs, PAs, etc.

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III. Communication breakdown • Communicate effectively with your mid-levels, cont’d.

– Develop a type of Delegation of Services Agreement.

Include:

• Medication policy

• Which patients the mid-levels will manage and

which patients are to be referred to you

• Documentation review policy

• An “open door” policy to discuss any patient safety

issues

– Decide under what circumstances you will see the

patients primarily managed by the mid-levels

On-call coverage

• On-call coverage: Document!

– What the patient reported

– What advice you gave

– Date and time of call

– When the patient refuses your advice

– Patient understanding of your advice

– Forward a copy to the patient’s PCP

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IV. Documentation practices

Protective record-keeping habits should:

• Demonstrate the physician’s decision-making and judgment

– Remember: The central psychological event of litigation is

the accusation of having failed to meet the standard of

care

• Justify the treatment rendered

• Justify the fees charged

• Differentiate between the patient’s and physician’s

responsibilities

Documentation essentials

• Your progress notes or consultative reports are the foundation of your charts. Document a complete progress note:

– SOAP-type format

– Allergies, medications, other doctors

– Include as part of the Plan:

• Informed consent or refusal discussion with patient understanding

• Medical treatment provided

• When to return to the clinic

• Patient understanding of the treatment plan

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Documentation essentials: Medication

• Document medications so they are “trackable”

– Medications from other physicians

– Indications

– Rx details and refills authorized

• Name, dose, amount, directions, refills x n

• Informed consent discussion is indicated

– Renewals and changes

– Efficacy

– Patient compliance

Contact MIEC

Claudia Dobbs, Loss Prevention Manager

Medical Insurance Exchange of California

6250 Claremont Avenue

Oakland, California 94618-1324

800-227-4527

www.miec.com

http://www.miec.com/

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