“This case is killing me.” I cannot tell you how many times I have heard those five words. I defend doctors when they are sued for negligence. I am a medical malpractice defense attorney, but attorneys are also called “counsel.” Most of my time is spent counseling. Medical malpractice cases are made up of allegations, and sometimes the allegations are true. More often, in my experience, they’re not. Either way these cases make doctors doubt themselves, their patients, and the health care system.
Sometimes doctors know they made a mistake. This is a good time to remember—we all have bad days. The repercussions of health care providers’ bad days may be catastrophic. When that happens, doctors usually want the case to settle and the patient to be compensated, as if that’s possible. It’s not. How can a patient be “compensated” for being injured, sometimes catastrophically, by someone who was meant to help them? Just because a doctor wants his/her case to settle doesn’t mean it will. At that point, the process becomes like buying a car. Settlement is a negotiation, and if the parties don’t agree on a number, the case will try.
“It’s killing me tadalafil best price.” Sometimes, most times, the doctors know they did everything right. Those are the cases that feel like they might kill us both.
I tell doctors’ stories.
It’s my job to tell doctors’ stories to juries, in courtrooms. But there’s a lot I don’t get the chance to say.
She was a young, brilliant, compulsive, and passionate surgeon, a female in what is still a male world. Life and death were at her fingertips, in a specialty where she saw as much of one as the other. This case, her first, involved the death of a teenage boy on the operating table. She had a teenager of her own, and while her professional demeanor was an attempt to mask her anguish over the patient, her eyes were bad liars. We both knew she had done everything, going above and beyond the standard of care, but that brought no solace when she was wracked with the power of “what ifs” at 3 a.m.
Right before trial she’d moved across the country to take a position that meant the world to her and her family, and she’d just had her second child, a surprise baby for a woman who otherwise did not like surprises. She flew in for the two-week trial and stayed at a hotel across the street from the courtroom. Her baby and a nanny came with her, and she’d run across the street to breast feed during every break. My biggest challenge prepping her for trial was her utter dismay whenever we came to the point in her testimony when the patient died. Juries can sometimes resent doctors who cry. What does she have to cry about, when a mother lost her son? Fortunately, this jury was able to tap into empathy for all of the victims in that courtroom, including the doctor, and found she was not negligent. The doctor and I remain friends, and to this day when our trial comes up her recollection is, “That case almost killed me.”
Doctors are burning out, and without them, so will we.
According to US News and World Report, 49% of doctors meet the definition of burnout, compared to 28% of other US workers.4 There’s no mention of the role lawsuits play, but I’ve seen it in practice. I’ve seen the radiologist who quit his job because he couldn’t stop going back to reread films after he had admittedly missed a fracture. What if he missed something more serious?  I have seen the urologist who chose medicine to build relationships with his patients, like the one his father had with his urologist after a prostate cancer diagnosis. After his first case, he shifted to consulting; he had lost trust in the patients he treated.
Patients and doctors need to work together to make lawsuits uncommon.
When we prep for trial, we call our offices war rooms. The problem is that war kills. In the journal Law & Policy, Marshall, Picou, and Schlichtmann “empirically demonstrate that the litigation process itself functions as a source of secondary trauma for litigants, exacerbating existing stress stemming from the original disaster event 3 .” In my experience, this is true for all parties to litigation. This is why I try to shift the focus from defending lawsuits to preventing them. And that, as it turns out, we need to focus not just on better systems and better documentation, but also on better relationships and being better patients.
Reminding doctors of the importance of empathy is part of the answer. Better relationships between doctors and patients leads not only to fewer lawsuits, but more importantly to improved outcomes. A study of 891 diabetic patients at Thomas Jefferson University found that a doctor’s level of empathy impacts hemoglobin A1c 1 . Most doctors went into medicine to care for their patients. However, over time the focus has shifted to defensive medicine, high volume, and electronic medical records. What you focus upon grows, and empathy has been a casualty. Doctors spend less and less time with patients, they interrupt too early and too often, and they look at the computer rather than into the patient’s eyes. Working with doctors and their staff on getting back to empathy is the most rewarding thing I do. But what about empathy for doctors?
Empathy is the ability to understand and share the feelings of one another. Doctors need to work on it—and so do patients.
I’m at a disadvantage at trial. Every single juror is or has been a patient. In fact, the judge, the lawyers, the court crier, and the doctor have all been patients too. We can all understand the feelings of a patient. It is much harder for us to understand the feelings of a health care provider. We do not know what it is like to watch a heart stop under hands trained to be steady up to the last beat. We do not know what it is like to work 24 hour shifts, sacrificing precious time with loved ones to spend time, not with patients, but with electronic medical records. We do not know what it is like trying to diagnose a patient whose addiction to pain pills makes them into liars. It is my job to tell the doctor’s story, but you have to be willing to listen.
We patients have far more power than we know. There is so much we can do to heal ourselves, and it goes far beyond quitting smoking and not texting when driving. Diet and exercise save lives. Spending time in nature can heal people faster. Laughter really may be the best medicine. And according to one of the longest and most complete studies of adult life ever conducted 2, good relationships are vital to health and happiness. When it comes to your health, how can your relationship with your doctor not matter? Relationships take two people working hard to understand each other. Empathy must go both ways, because the things that are killing our doctors are hurting us as well.
* Minor identifying details may have been changed.
Articles cited:
- Hojat, M., Louis D. Z., Physicians’ empathy and clinical outcomes for diabetic patients. Acad Med. 2011;86(3):359-64. http://www.medscape.com/medline/abstract/21248604. Accessed October 16, 2016.
- Lewis, T. A Harvard psychiatrist says 3 things are the secret to real happiness. Business Insider. December 29, 2015. http://www.businessinsider.com. Accessed October 16, 2016.
- Marshall, J., Picou, S., & Schlicthmann, J. Technological Disasters, Litigation Stress, and the Use of Alternative Dispute Resolution Mechanisms. Law and Policy. 2006;26(2). http://stevenpicou.com/pdfs/law-and-policy-vol26-num02.pdf. Accessed: October 15, 2016.
- Sternberg, S. Diagnosis Burnout. US News and World Report. September 8, 2016. http://www.usnews.com. Accessed October 15, 2016.
Heather Hansen has spent 20 years as a medical malpractice defense attorney and has seen the toll these cases take on patients, doctors and the healthcare relationship. She started H2Spark, LLC to improve healthcare relationships with better communication and more empathy, community and teamwork. Heather travels internationally to address healthcare providers and patients on how best to work as a team. She is a trained mediator and also has served as a legal analyst for CNN, Fox News Channel, Fox Business, Sirius XM and CBS Radio.
