Surviving the Lawsuit: Recognizing and Supporting the Second Victim

Educational Objectives

The goal of this program is to improve coping with medical malpractice lawsuits. After hearing and assimilating this program, the clinician will be better able to:

1. Identify factors that minimize risk for malpractice lawsuits.
2. Adopt behaviors that are appropriate in the aftermath of catastrophic medical events.
3. Make decisions about fighting malpractice claims vs agreeing to a settlement.

Summary

Incidence: a 2017 study by the American Medical Association found that 34% of all physicians, across all specialties, had been named in a lawsuit, and ≈50% were sued ≧2 times; the longer a physician practices, the higher the chances of being involved in a lawsuit; by 65 yr of age, 75% of physicians in low-risk, and ≈99% in high-risk specialties, have been named in ≥1 lawsuit

Causes for litigation: cases that prompt lawsuits often surround unexpected catastrophic outcomes, especially neonatal pediatric and obstetric complications; patient dissatisfaction with care or patient disability after an event are also causative; reducing the probability of lawsuits is likely best approached by focusing on physician factors; in a 1992 survey in JAMA, 44% of responding plaintiffs who sued for perinatal injury indicated that they initiated the lawsuit because of needing information or suspecting that the child's injury was concealed; the perception of poor or dishonest communication with families can stimulate the pursuit of malpractice litigation; longstanding patient relationships are one of the few protective traits that may decrease the tendency to file suit; clinicians with low (or no) face-to-face interaction with patients or lack of repeat patients (eg, anesthesia providers) are at a disadvantage; obtaining informed consent may help but cannot provide a complete defense; however, absence of adequate informed consent may significantly increase the likelihood of payouts

Medical malpractice (MM): constitutes a business; the insured provider is an account holder (of MM coverage); MM attorneys typically receive one-third of the settlement; multiple commercial MM groups attempt to normalize the process of suing providers through ads on television, the internet, and billboards; services of most plaintiffs’ attorneys are free of charge until a payout is received; there is no burden of proof to initiate a MM lawsuit; countersuits against patients and families by defendants of MM cases are discouraged; not a criminal proceeding; although it has potential to complicate licensure and credentialing, MM is not a formal complaint to a medical or licensure board

Challenges for plaintiffs: although little or no evidence is required to file a MM claim, the plaintiff must prove negligence by the physician (diversion from the standard of care), that the patient sustained harm, and a causative link between negligence and outcome; the majority of claims are dropped by the plaintiff, dismissed by the court, or settled before trial for an amount within MM policy limits; in the rare MM cases that go to jury, providers are overwhelmingly favored (only 2% of anesthesia MM lawsuits have resulted in judgments for the plaintiff)

Provider duties after an adverse incident: after the situation or patient is stabilized, prioritize speaking with the patient's family or loved ones; involve the Patient Relations team early; a senior or experienced colleague can accompany the clinician to assist in difficult or overwhelming conversations; accurately and honestly describe the circumstances of the event and the best assessment of the patient's status; “we do not yet know” is a valid statement immediately after an emergency; temper optimism; share the care plan, reassure the family, answer questions, and outline next steps; expressions of sorrow are acceptable and do not constitute an admission of guilt, but the family’s emotional state must take priority; certain key stakeholders must be immediately informed of a catastrophic outcome; contact a supervisor or chairperson and the hospital’s risk management team

Documentation: document the event completely, ensuring that the record includes administered medications, airway documentation, and any calls for help or urgent orders; confirm that timelines and interventions are in agreement with records of the same case by other clinicians; because of the limitations of electronic health records (EHR), consider drafting a document and then entering it as an event note; review the note with a senior colleague or risk management professional; in the event description, state the facts and describe the reasons for specific courses of action, but do not guess, editorialize, or “blame shift”; as soon as possible, involved providers should be excused from clinical cases (by postponing or assigning to others); intrusive reflections (eg, anxiety, flashbacks, nightmares, insomnia), depression, and lack of confidence are possible sequelae for these clinicians

Second victim phenomenon (SVP): described by Wu in 2000; characterized by shame, self-doubt, and guilt that can be devastating and debilitating to health care professionals; if untreated, can lead to depression and suicide; Scott et al (2009) — describes SVP in 6 stages, beginning with the experience of a devastating outcome and ending with moving on; some healing is seen in the third stage (“restoring personal integrity”), which involves reaching out to trusted colleagues and family during resumption of clinical work; however, the subsequent fact finding and damage control processes may undo healing; stage 4 may include medicolegal issues

Notification of MM lawsuits: suits may be filed within 2 to 6 yr of the event, depending on state law; notification letters often triggers recurrence of intrusive reflections; language used implies delivery of incompetent, negligent, and callous care, and raises concerns about professional reputation, job security, and financial wellbeing; because juries rarely award damages above limits of individual MM policies, plantiffs’ attorneys are incentivized to name in the lawsuit all health care workers present during an event

Actions to be avoided: do not discuss details of the case with anyone other than one’s lawyer and spouse; further research on the topic will not strengthen the case (the defense team independently secures experts who present evidence in favor of the provider during the trial); do not access the chart or any of the patient's medical records through the EHR (as the patient is no longer under the defendant’s care, doing so would be a violation of the Health Insurance Portability and Accountability Act)

Recommended actions: contact the MM insurer and risk team; inform the department chairperson or supervisor about being named in a lawsuit so that time off for, eg, meetings, depositions, can be arranged; self-care is essential for physical, emotional, and behavioral wellbeing; find safe spaces and nondiscoverable opportunities for venting emotions; conversations with one’s spouse are protected from legal discovery; seek professional counseling early; conversations during psychotherapy sessions are protected; other supports includes private conversations with clergy or religious leaders, who are also protected from subpoena and discovery

Discovery phase: both teams secure medical experts to support their case; the plantiff’s team sends interrogatories on topics such as the provider’s experience with the patient's disease state, standards of care for the condition, and consideration of alternative treatments; the lawyer, team expert, witnesses, and defendant meet to answer those questions; the process of reviewing and responding to the interrogatory may cause the provider to re-experience some of the trauma of the initial event

Deposition: often follows the interrogatories; may occur years before the trial; the provider is likely to speak more during the deposition than during the trial; may be the most important and stressful phase for the defendant; prepare thoroughly; answer questions succinctly and truthfully and do not guess; depositions are always transcribed in real time by a court reporter and may also be audio- or videotaped; after the deposition, the transcript must be reviewed for accuracy and consistency; before the actual trial, it is critical to review (with the legal team) answers given in the deposition; at the trial, the plantiff's attorneys may revisit some of the responses

Jury verdict: outcomes of trials are highly unpredictable; depending on the MM insurance policy, the provider may not have a choice about whether to fight a case; even when physicians have the right to reject a settlement, a “hammer clause” may dictate that rejection of a settlement allows the case to proceed to a jury verdict, for which any rewards to the plantiff beyond the proposed settlement must be paid by the defendant; advantages of settling in advance of a jury verdict include protection from unprecedented awards; every settlement must be reported to the National Practitioner Data Bank and will appear each time the provider seeks re-credentialing or new employment over the next 10 yr

Trial: usually occurs over 2 to 4 wk; the defendant should be present in court throughout the trial; if the provider’s legal team is unsure of victory at any timing during the course of the trial, a settlement agreement can be arranged; “high-low agreements” — establish minimum and maximum payouts; guarantee a payout to the plaintiff even if the jury sides with the defendant; protect the provider from payouts that are beyond MM coverage limits

Trajectories following a trial: although Scott describes 3 possible paths, these may overlap; 1) “dropping out” — at worst, may involve succumbing to depression, substance abuse, or suicide; in other cases, providers simply leave the medical profession; 2) surviving — may include loss of interest in one’s job and development of persistent anxiety; providers in survival mode remain in danger of dropping out, as they perceive every patient as representing a potential lawsuit or negative outcome; 3) thriving — requires a significant commitment of time and effort

Emotional first aid: encompasses all systems and supports needed to overcome sequelae of a catastrophic care event; includes having strong family and home support as well as professional counseling; prayer or meditation may be helpful; physician litigation support — helps providers work through emotions, rebuild confidence, and rediscover interest in their specialties

Readings

Carroll AE, Buddenbaum JL. High and low-risk specialties experience with the U.S. medical malpractice system. BMC Health Serv Res. 2013;13:465. Published 2013 Nov 6. doi:10.1186/1472-6963-13-465; Jena AB, Chandra A, Lakdawalla D, et al. Outcomes of medical malpractice litigation against US physicians. Arch Intern Med. 2012;172(11):892–94. doi:10.1001/archinternmed.2012.1416; Pensa G. Getting served: the do’s and don’ts of litigation. JUCM. October 2021; 11-14; Scott SD, Hirschinger LE, Cox KR, et al. The natural history of recovery for the healthcare provider "second victim" after adverse patient events. Qual Saf Health Care. 2009;18(5):325-330. doi:10.1136/qshc.2009.032870; Tigard DW. Taking the blame: appropriate responses to medical error. J Med Ethics. 2019;45(2):101-105. doi:10.1136/medethics-2017-104687; Vizcaíno-Rakosnik M, Martin-Fumadó C, Arimany-Manso J, Gómez-Durán EL. The impact of malpractice claims on physicians' well-being and practice. J Patient Saf. 2022;18(1):46-51. doi:10.1097/PTS.0000000000000800.

Disclosures

For this program, the following relevant financial relationships were disclosed and mitigated to ensure that no commercial bias has been inserted into this content: Dr. Conley is a stockholder/shareholder in Arbutus Biopharma, Bavarian Nordic, Capricor therapeutics, Codex DNA, Moderna, Option Care Health Inc, Pfizer, Quest Diagnostics, Roche, ROMtech, and Sorrento Therapeutics, Inc. Members of the planning committee reported nothing relevant to disclose.

Acknowledgements

Dr. Conley was recorded at the 2022 Society for Pediatric Sedation Annual Conference, held September 29 to October 2, 2022, in Seattle, WA, and presented by the Society for Pediatric Sedation. For information about upcoming CME activities from this presenter, please visit www.pedsedation.org. Audio Digest thanks the speakers and presenters for their cooperation in the production of this program.

CME/CE INFO

Accreditation:

The Audio- Digest Foundation is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians.

The Audio- Digest Foundation designates this enduring material for a maximum of 1.00 AMA PRA Category 1 Credits™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.

Audio Digest Foundation is accredited as a provider of continuing nursing education by the American Nurses Credentialing Center's (ANCC's) Commission on Accreditation. Audio Digest Foundation designates this activity for 1.00 CE contact hours.

Lecture ID:

GS702403

Expiration:

This CME course qualifies for AMA PRA Category 1 Credits™ for 3 years from the date of publication.

Instructions:

To earn CME/CE credit for this course, you must complete all the following components in the order recommended: (1) Review introductory course content, including Educational Objectives and Faculty/Planner Disclosures; (2) Listen to the audio program and review accompanying learning materials; (3) Complete posttest (only after completing Step 2) and earn a passing score of at least 80%. Taking the course Pretest and completing the Evaluation Survey are strongly recommended (but not mandatory) components of completing this CME/CE course.

Estimated time to complete this CME/CE course:

Approximately 2x the length of the recorded lecture to account for time spent studying accompanying learning materials and completing tests.