Malpractice Pain: The Hurting Doctor
By Curtis E. Harris, M.S., M.D., J.D.
Today's Christian Doctor, Fall 2007, Volume XXXVIII, Number 3.
The pain of a malpractice suit can test your limits, threatening all you hold dear. For some, th is experience is devasating-personally, relationally, professionally-regardless how the case is resolved. Some have testified, however, that being sued was an opportunity for growth, in disguise, and a pathway to deeper faith. The end resu It depends, to some degree, on the support you have while making this journey.
Jim was a friend of mine. I say "was" for reasons that will become obvious in a moment. We first met when I was a senior resident in Internal Medicine. Jim was the head of the Emergency Department at the largest hospital in a small town. He was young, well-trained, sensitive, progressive, and hard-working. I liked Jim a lot. In addition to being a father of two young girls, he was an artist. He painted landscapes and nature in both oils and watercolors, and had displayed his work at a local gallery. Jim gave me a small oil painting of geese in flight that I still have. I wanted to be like Jim after I finished my training.
When I finished my residency, I lost track of Jim, and did not see him again until I had completed my Fellowship. In the interim, the following had happened:
Late one Saturday evening the popular town Sheriff came to the ED complaining of chest pain. He had eaten his usual dinner at Taco Mayo and was convinced he had bad heartburn. The EKG was normal, as were his enzymes. Jim prescribed Prevacid, and dismissed the Sheriff with the admonition to see his family physician on Monday if things did not get better. The Sheriff stopped by the local 7-Eleven, bought some Maalox tablets, and continued his evening patrol. An hour later, while making a traffic stop, the Sheriff suffered a major heart attack and died, crashing his car into a light pole.
The Sheriff's family brought a malpractice suit against Jim, which did not go well. Discovery had determined that Jim had missed a minor change on the EKG, and that the enzymes he had reviewed were those of a patient he had seen earlier in the evening, not the Sheriff's, which showed an acute injury pattern. It was never determined why Jim looked at the wrong lab, but he was blamed nonetheless. Jim lost the case. The Sheriff's widow got a judgment of $2 million; Jim only had $1 million in insurance.
As the appeals process dragged on, Jim developed uncertainty about his competence, and he began to drink heavily. It became increasingly difficult for him to do his work in the ED well. His church was of little help. The Sheriff had been a Deacon there, so the sympathies went to his widow, not to Jim. Many believed that Jim's "carelessness" had "kilied" the Sheriff.
A year after the malpractice judgment, Jim's wife filed for divorce to avoid the financial consequences of the judgment ... or in her words, "To protect the children." Abandoned by his church, blamed by everyone for the death, Jim became disconsolate. On the day of the final hearing for his divorce, Jim shot and killed himself. No note was left.
Malpractice Suits Can Bring More Questions than Answers
Jim's case was my first experience with malpractice. Since then, I have counseled numerous physicians who have been sued for various reasons. I have helped others dealing with difficult issues of medical licensure board reviews, and still others accused of Medicare Fraud and Abuse. With only a few exceptions, I have been impressed with the honesty, decency, and general moral character of those I have helped. I have also been impressed by their dedication and professionalism.
For many of them, these questions arise: How did all of this happen? Why did it happen? I work hard, avoid mistakes, and have never intentionally hurt anyone ... and this is what I get? Life seems suddenly unfair, and it hurts more than they imagined it could.
I have a great relationship with that patient. She wouldn't sue me.
As can happen with grief from other sources, sometimes, without realizing it, Christian physicians attempt to make a deal with God that runs something like: "God, if J dedicate my life to service, work hard, sincerely care about my patients, balance my life between work and family, pray, tithe, love my spouse, volunteer for missions, make my hands your hands, then I can expect that you will surely protect me. Right?" Passages from the Psalms seem to support the bargain struck.
When a physician is sued, he or she is almost always surprised. Common thoughts include: You don't understand! I didn't do anything wrong. Besides, I have a great relationship with that patient. She wouldn't sue me.
After the shock ends, denial begins, including a false hope that the case will be dismissed as soon as everyone "comes to their senses." All of the stages of grief and loss tend to occur as the litigation proceeds - denial, anger, bargaining, depression, and acceptance - though not in any particular order. However, one important difference in dealing with malpractice litigation (versus the loss occasioned by disease or death) is the prolonged sense of despair and isolation many physicians feel as legal actions drag out over time, often years, without any clear resolution ... and without any available source of comfort or counsel.
During this process, physicians may feel embarrassed, wonder if they did the wrong thing, believe they did the wrong thing even when they did not, and feel isolated because they are advised not to talk about the case with anyone for fear that anything they say can and will be "used against them in a court of law."
Even faith can be a double-edged sword: On the one hand, it is a comfort and buttress against the loss of hope; on the other, a simple belief in right and wrong can create excessive self-condemnation, when compared to the relativistic views of a secular progressive values system. Satan, as the Great Accuser, can turn us against ourselves.
WHEN YOU ARE SUED
- Don't read all of the accusations in the petition. Just read enough to know you have been sued and by whom. The accusations have little to do with truth, are very inflammatory and hurtful, and are really there just to convince a judge the plaintiff has a case.
- Call your malpractice carrier as soon as possible. DO NOT CALL THE PATIENT. Do not talk to the patient or the family about the case. The time for that is after the case is resolved.
- Take the advice of your attorney. Be very open and honest with your attorney. Review your files carefully, but do not change anything in them in any way, even if they are on a computer. Altering records is viewed as an admission of liability.
- Remember that it is normal and common to feel angry, guilty, incompetent, depressed, tired, and even suicidal. Take each emotion as a helpful warning sign, like a stop sign or a yield sign on the highway. Take each day one day at a time, and do not borrow from tomorrow's woes. Jesus said that each day has enough trouble of its own.
- Think hard about what happened, what you recall. Most of us start out by blaming ourselves by saying "if only I had done that." All that matters is what you knew and what you did at the time, not what, in hindsight, you might have done.
Remember that you are not alone. Ask for help from your attorney, from your medical association, or from the CMDA Medical Malpractice Ministry, 1-888-230-2637; e-mail: firstname.lastname@example.org.
- Long and drawn-out court proceedings can take a devastating toll on you and your family. You will hear nothing from your attorney for a year, then suddenly the case is back into your life. Don't get lazy and don't imagine the case has just "gone away." Take the time between the various legal steps to strengthen your faith and your understanding of suffering.
- Involve your spouse and children in the case to the extent they need to understand your concerns and emotions. Fear of the unknown and an active imagination can hurt children more than openended conversations about what is and might happen. Children will tend to think it is somehow about them. Make certain they know it is not about them. Keep communication open with your spouse; seek counseling if needed in order to prevent the stress from hurting your relationship.
IF YOU ARE BEING SUED
As a believer it is good to remember, if you are being sued, that God never leaves your side, and that suffering is as much a part of life as is joy. Suffering seasons us. Shakespeare wrote, "He jests at scars who never felt a wound." This kind of suffering may be a gift in disguise from a loving God, the kind of gift we would refuse, but cannot.
The second thing to remember in this situation is, "Never pay back evil for evil to anyone .... If possible, so far as it depends on you, be at peace with all men .... Do not be overcome by evil, but overcome evi I with good " (Romans 12 :1 7-21, excerpted, NASB).
The pain that accompanies a malpractice suit may be about us, about something God wants us to know about ourselves. In that case, our openness to the lesson is a key to the speed with which we learn it and its ultimate effect in our lives. Or the net result of the experience may be about what He wants someone else to see in us: His love, His grace, His forgiveness. Either way, when sued we do best when we pray: "Hallowed be Thy name; Thy will be done."
IF A COLLEGUE IS BEING SUED
If you have a friend or colleague being sued, you can help by first validating that physician (and his or her family). I recall one physician who told me how deeply grateful he was to have had a Christian friend who had asked if he could come to his trial to sit in the back of the courtroom, not to listen, but to pray for him. Each day, he felt a profound relief to have someone there to give him spiritual support. When I heard the story, I wished I could have been that friend. My prayer since has been "Lord, give me the insight to see the needs around me."
That is his epitaph, one he could not have known to write. Funny how that works ....
Finally, if you know someone who has been sued, the three most important things you need to do are: listen, listen, listen. Then pray with them and for them. Take great care not to add to their feelings of guilt by commenting on how you would have done things, even if asked. You were not there. Don't judge. Even a small amount of loving compassion feels like huge support to anyone in this situation.
*This story is true, with certain facts disguised to protect confidentiality.
Curtis E. Harris, M.S., M.D., J.D., Curtis E. Harris, MD, JD, is the Chief of Endocrinology for the Chickasaw Indian Nation and Director of the Chickasaw Nation Diabetes Care Center. Prior to his current position, he was in private practice as an Endocrinologist in Oklahoma City, Oklahoma for more than twenty-five years. Dr. Harris received a Juris Doctorate from the Oklahoma City University School of Law in 1994. He is Adjunct Professor of Law at the Oklahoma City University School of Law, and a specialist in medical law. Dr. Harris founded the CMDA Medical Malpractice Ministry in 1995, and in that role trained nearly thirty physicians as counselors. He has personally counseled over 400 physicians and dentists who have been sued for malpractice or have had other p1·actice-related legal problems. He has served as a Trustee of CMDA, and is a member of the editorial committee of Today's Christian Doctor. (2007).