Ординатура / Офтальмология / Английские материалы / Risk Prevention in Ophthalmology_Kraushar_2008

Part 3

Personal and Business Considerations

Despite creative and consistent efforts to relieve or change it, however, the tort system governing medical malpractice remains essentially intact. The result is that laypersons and professionals continue to blame someone for bad outcomes. Additionally, questions arise frequently about the behavior of physicians after bad outcomes and how “truthful” they are in disclosing them to patients. In this littlechanged environment, professionals receive little sympathy and physicians sued for malpractice continue to feel isolated, misunderstood, and lacking in support.

Assessing the Meaning of the Event

What does it mean to be charged with malpractice in today’s environment? Despite recent efforts to diminish the “culture of blame” within health care, physicians remain the principal targets of inquiry whenever a bad outcome occurs. Their immediate instinct is to question their own role in the outcome. Later, if publicly charged with malpractice, they examine themselves more deeply about potential culpability and its meaning within the context of their personal and professional lives.

Irrational fears lurk in the background; they feel that they will suffer some form of personal, career-ending, or financial destruction. CBS commentator Andy Rooney gave voice to these fears after he was publicly accused of making discriminatory remarks: “It is not clear to me whether I have been destroyed or not but I know that a denial from anyone does not carry anywhere near the same weight as an accusation.”6

Typically, physicians embark upon concomitant complex psychological processes, known as appraisal,7 within the context of their own life history and circumstances by asking a series of questions: “What is this all about? How does this lawsuit make me feel about myself? How does this impact my feelings of competence and professionalism? Do I feel that the charges have some basis or are they totally fraudulent? How will this affect my work and my professional relationships? Will this lawsuit change my relationship with my family, impact my health, or alter my long-term ambitions or goals? Do I feel overwhelmed, seething with anger, or terribly misunderstood? Can I manage my feelings or do I feel they are out of control? Do I feel powerless or hopeless?” How we answer these questions gives us clues about the meaning and impact of the event on us. The answers also reveal how we can begin to cope.

Recognizing the Emotions Associated with the Event

The meaning of the event that characterizes the source of threat or benefit of the experience has a direct impact on the physician’s subjective feelings. Internist Dr. Richard Allen, whose patient died suddenly from complications secondary to orthopedic surgery, described his experience both before and after litigation had been filed8:

It’s like someone who has a malignancy in remission. You know the old term, “whistling by the graveyard?” You know it’s there and you try to suppress it. You put it in the back of your mind, in your subconscious but it always creeps back no matter what. . . . You know that someday it’s going to show up. . . . I was made aware that the family had contacted an attorney and the chart had been requested so at that point, I reported it to my malpractice carrier . . . so nothing more was heard, this is about 19 months before the actual suit was filed. [When it was filed] it was absolutely terrible. It was terrifying. It was depressing. I had acute anxiety. I actually went into atrial fibrillation.

Seen in the emergency room on the Saturday morning his fibrillation began, Dr. Allen was treated and back at work on Monday. Unbeknownst to his colleagues, Dr. Allen, swept up in a whirlpool of feelings, lived a double life as physician and defendant for the next 3 years.

Dr. Allen possessed a capacity for self-observation and was able to identify “a conflict of emotions” that captured the meaning of this experience for him: a strong drive for self-preservation; a fear of being psychologically damaged by the event; fears about the limits of his liability and the amount of monetary damages that might eventually be assessed; guilt and anger for being involved in a case that was literally “out of his control,” especially because he was away on vacation when the surgery and its aftermath occurred; shame that his sense of honor was being impugned; anger that the orthopedic surgeon, who was also a friend of the patient, was not named in the suit; and feelings of anger and betrayal based on the belief that his associate was trying to incriminate him rather than accept any blame for his management of the case. The most distressing emotion was anger: “I was very angry. I’m sure the anger contributed to the surge of adrenaline that put me into atrial fibrillation.”

This well-functioning physician, marginally involved in the sudden death of a patient and in subsequent litigation, reacted as any person does when he or she experiences a significant life event with all its attendant losses. A widower or recent divorcee, for example, not only loses a spouse but usually suffers a change in social and economic status. A physician involved in a serious adverse event, especially one that precipitates subsequent litigation, is no different. It takes time to adapt and respond to these real and potential losses. Dr. Allen, for example, later decided to settle mainly because he feared that his health would be comprised by the stress associated with a trial.

Understanding Emotional Reactions to Serious Life Events

Understanding ourselves and our experiences equips us well to anticipate and master our reactions. Horowitz9 describes the normal phases by which individuals experience any major life event. For physicians involved in a bad outcome, especially a catastrophic event that later leads to a lawsuit, both the event and its consequences may be experienced as “major.”

Initially there is an outcry—an overwhelming sense that, “no, this can’t happen, this can’t be true.” The magnitude of the event is literally too much to absorb so that we feel stunned or shocked and sometimes temporarily out of touch with our surroundings. We

experience “distress” with feelings of confusion, anger, anxiety, or a range of other unpleasant and threatening emotions and symptoms. Distress is a normal, usually selflimited response of short duration, but in some persons the symptoms may persist. Gradually, we realize that what we feared has actually happened and changed our life.

We are next aware of alternating periods of denial, during which we consciously or unconsciously put the event out of our minds, and intrusion, during which we experience unsolicited thoughts, feelings, and preoccupations associated with the event. We may feel calm and in good emotional balance when some seemingly innocuous stimulus generates a rush of memories and disruptive feelings. We then consciously push the unwanted thoughts and feelings to the background in order to resume our normal life. The closer in time that we are to the trauma, the more frequently we are bothered by these preoccupations and the more psychological energy we expend to control our thoughts and feelings. When we pass the emergency department that was the scene of the event, for example, we may feel overwhelmed with memories and negative feelings. As time passes these intrusions generally diminish as does our vulnerability to disruption. Because there is no “time” in the unconscious, whenever we are reminded of the event, it feels as though it is happening freshly.

Dr. Laura West’s obstetric patient sustained a complicating adult respiratory distress syndrome and, after 85 days in the intensive care unit, suffered a cardiac arrest after being fed a fatty emulsion intravenously rather than through her port. Efforts to revive the young patient failed.

It was devastating. It changed everything in my life. . . . I was a young doctor. I had this catastrophic event . . . everyday I questioned myself. I had graduated first in my med school class. . . . I had been the chief resident. . . . I was as well prepared and well trained as I could be but I doubted myself every day. . . . It was just agony. I had trouble closing abdomens. I thought the patient would bleed to death. I eventually got over that over time. . . . I was sued for, basically, wrongful death. . . . After four years of hell, the case was ultimately dismissed with prejudice. In other words, we had won. The case was going to go no further because I really hadn’t done anything wrong.10

Dr. West was clearly traumatized and plagued for years with periods of denial and intrusive thoughts about her role in the event and her feelings of competence. She would do her best to attend to all patients and their concerns and, in some sense, deny the reality of this catastrophic event. Every surgery, however, reminded her of her patient. Her sleep was interrupted constantly with concerns about her patients and how the lawsuit would play out. Her effort to keep her “double life” in balance was an “agony.”

During these long years she was psychologically engaged in working through the experience, which uses psychological energy to put the event into some perspective and deal with its emotional repercussions. This hard work begins the process of healing. It takes time to absorb the facts associated with the event, especially if a bad outcome is due to a mistake. The physician needs to put the facts into perspective, make the necessary adaptations, and regain psychological equilibrium.

It was during this time, for example, that Dr. Allen recognized the complexities of his relationship with his associate that led eventually to the dissolution of their partnership. He also accepted that, despite feeling it was unfair, he, not the orthopedic surgeon, had been sued. Although both Dr. Allen and Dr. West emerged

from the experience as far more confident, competent, and mature clinicians, the psychological toll on them and their families was significant, and they experienced major changes in their personal and professional lives.

The Charge of Negligence and Physicians’ Reactions

When an adverse event involves the threat of litigation or when litigation occurs, two major factors contribute to physicians’ emotional reactions: their own personality traits and the nature of tort law.

The Personality Traits of Physicians

Ordinary people defend themselves against perceived threats by using obsessivecompulsive defense mechanisms that help them feel in better control. This is marked by a preoccupation with orderliness, perfectionism, and an excessive devotion to work and productivity. Gabbard11 identified a “triad” of associated obsessive-compulsive traits that physicians typically share: a vulnerability to doubt, a propensity to guilt feelings, and an exaggerated sense of responsibility.

Physicians express their vulnerability to doubt by questioning whether they considered all the options in their diagnosis or treatment of their patient; they tend to feel guilty if they fail to meet their sometimes onerous perception of the professional standard of care; and they worry about whether they have done everything possible to help their patient even when the situation was entirely out of their control. Physicians do not readily balance these reactions, and this may lead to overwork, neglect of family obligations, and a drive for perfectionism that is incompatible with a healthy life. If used wisely, these personality characteristics contribute to the care of their patients. When physicians are sued, however, these same traits become the source of considerable distress. Feeling “out of control,” physicians may begin to doubt themselves, feel guilty, and think that they failed to “do enough.” All of these feed into the playbook of the plaintiff’s attorney.

Tort Law

Medical malpractice claims are torts, in contrast to crimes, that seek a civil sanction, usually compensation. They require that a person or entity be accused of failing to meet the standard of care and, by so doing, cause the patient to sustain an injury that deserves compensation. This public allegation of failing to meet the standard of care against a person whose identity relies on meeting that standard sets off deeply felt psychological repercussions. The central psychological event of litigation is the

Figure 23.1 Outcome of closed medical malpractice claims (1985–2006). (Physician Insurers Association of America (PIAA), Rockville, MD, with permission.)

public accusation of failure against a person who is already uniquely sensitive to the slightest suggestion of failure. Such persons experience legal action as a direct assault on their sense of integrity.

It is helpful for physicians to recognize that in the tort system negligence must be charged if the patient is to achieve compensation: the accusation is merely the means to an end. Recent evidence suggests that neither goal of the tort system—the efficient and fair recompense for injured patients and the rooting out of incompetent doctors—is currently achieved.2 It is also helpful to know that almost 70% of the cases filed result in no payment to the plaintiff; that is, they are found to be groundless, dropped, dismissed, or result in a trial verdict in favor of the physician (Figure 23.1) Most physicians believe that the system is unfair and that there should be other means for patients to achieve justice for injury in the health care system. Nonetheless, until significant change in the system occurs, physicians will continue to be principle targets of such accusations.

Impelled to restore their good name and demonstrate that these accusations are not only false but unwarranted, physicians feel estranged from the inherently adversarial legal world. They feel tethered to an unfamiliar but well-established legal process that in stark contrast to the fast-paced, decision-making cadence of medical practice seems frustrating, slow moving, and time consuming.

Identifying Areas of Control

Physicians react in their own distinctive ways to a malpractice suit, and, in fact, to each suit filed against them. Their primary challenge is to understand what they can and cannot control so that they can transform what feels like a “double life” into one integrated whole in which they can function as responsible clinicians and successful defendants.

Physicians have a great advantage in knowing their own strengths and weaknesses. If they can observe changes in their characteristic ways of thinking and behaving under stress, they can identify the sources of their distress and make necessary changes. Physicians overwhelmed with financial concerns, for example, find it is useful to review their current financial status, review or initiate long-term financial plans, and reassess their malpractice coverage and their potential for loss, along with other relevant issues. Well-versed in and comfortable with that knowledge, physicians are far better qualified to contribute to decisions about whether to settle or pursue the case. Although his health was his primary motivation in settling, the suit distressed Dr. Allen because of its impact on his relationship with his partner. He gained control by reviewing his financial status, confronting his partner about his role in the case, settling the case for a minimal amount, dissolving his partnership, and selling his practice to a local hospital.

Depending on their own particular circumstances, physicians may allow themselves more leisure time, redistribute their time commitments to work and family, improve their office procedures, enhance their risk management strategies, and schedule the time necessary for preparation for depositions. They may implement other changes that help them feel in better control of their own lives and to profit from the support of others during this difficult period in their lives.

Correcting Distortions Relevant to the Experience

One of the most difficult challenges for physicians after a bad outcome, especially after making a clear medical error or being sued for malpractice, is to face and accept their own humanity and its attendant vulnerabilities. To do this they need the help of family, friends, and colleagues who provide understanding, support, and a sense of safety.

Physicians are thwarted in sharing their experiences by their own lawyers who warn them not to talk to anybody about their situation for fear that they might say something that suggests culpability and therefore jeopardizes the legal defense of the case. This is classic good legal advice, but it is not good psychological advice. It is true that doctors can talk with their lawyers, claims professionals, and others directly protected by the law, but often these resources are insufficient to provide that emotionally “safe” and comfortable place that they need. Many physicians can talk with their spouses, who are often knowledgeable and supportive, especially if they are physicians themselves. Others find that a trusted colleague or friend is the best resource.12 In conversations with these persons, physicians can discuss their personal feelings about the incident and the lawsuit but not the technical details of the case, thereby safeguarding the concerns of legal counsel. By talking about our experience with others and listening to their feedback, we can begin to gain some distance and perspective that gradually allows us to see a “true” picture of what really happened.

After negative events in the medical setting, physicians almost always become central players in sentinel event reviews, mortality and morbidity conferences, and other forms of debriefing and investigation that review the technical details of the

situation. Physicians do not always perceive these venues as “safe,” because they seek to find the responsible culprit so that sanctions can be initiated. The most successful investigations are conducted within an environment of understanding and support so that the participants can learn from the incident rather than feel intimated and therefore defensive and withholding about their behavior. Some observers suggest that delaying these sessions for a reasonable length of time so that those involved can achieve some perspective on the event is more useful than reviews scheduled when the participants are still suffering the emotional aftershocks of the incident.13

Physicians are also in need of support as they prepare to interact with aggrieved patients. Often the adverse event is totally unanticipated, and its details and causation may be cloudy or, in some circumstances, strikingly clear. In any case, physicians must put their emotional response “on hold” until they inform and respond to the patient’s and family’s totality of concerns. In preparation for this discussion, the primary physician may find it useful to consult with a risk manager or involved associate to achieve a proper perspective on the event. Generally speaking, the best approach to disclosure is to reveal as “much as the doctor knows” at the time. Risk managers, of course, will generally caution physicians about how they disclose what they know relative to culpability for the event. Patients and their families as well as physicians themselves can have deeply rewarding and healing experiences when disclosure after a bad outcome is sensitive, informative, and timely.

Emerging as a Stronger and Healthier Person

Achieving a sense of perspective about and accepting the event and their role in it can strengthen physicians personally and make them better defendants. This can only be accomplished by hard work and with the help of other sensitive, trustworthy, and reliable persons. As one physician remarked, “I am acting in the best physical, mental, professional and spiritual shape possible in anticipation of this case moving forward.”14 Physicians following this approach improve their chances of integrating this experience into both their personal and professional lives.

References

1.American Medical Association. Medical Liability Reform—Now! July 19, 2006. Available at: http://www.ama-assn.org/go/mlrnow. Accessed September 26, 2007.

2.Miller D. Liability for Medical Malpractice: Issues and Evidence. A Joint Economic Committee Study. Jim Saxton, Vice Chairman. United States Congress, May 2004.

3.Gilbert SM. Wrongful death: a memoir. New York. W.W. Norton, 1997.

4.Hilfiker D. Healing the Wounds: A Physician Looks at his Work. New York: Pantheon Books; 1985.

5.Charles SC, Kennedy EC. Defendant: A Psychiatrist on Trial for Medical Malpractice. New York: Vintage Books; 1986.

6.Gerard J. Callers besiege CBS over Andy Rooney. New York Times, February 10, 1990.

7.Lazarus RS, Folkman S. Stress, Appraisal and Coping. New York: Springer; 1984:22–25.

8.Charles SC, Frisch PF. Adverse Events, Stress and Litigation. New York: Oxford University Press; 2005:58, 94.

9.Horowitz MJ. Treatment of Stress Response Syndromes. Washington, DC: American Psychiatric Press; 2003.

10.Charles SC, Frisch PF. Adverse Events, Stress and Litigation. New York: Oxford University Press; 2005:20, 216.

11.Gabbard GO. The role of compulsiveness in the normal physician. JAMA 1985;254:2926–2929.

12.Berlinger N. After Harm: Medical Error and the Ethics of Forgiveness. Baltimore: The Johns Hopkins University Press; 2005:89.

13.Kenardy JA, Carr VJ. Debriefing post disaster: Follow-up after a major earthquake. In: Raphael B, Wilson JP, eds. Psychological Debriefing: Theory, Practice and Evidence. Cambridge, England: Cambridge University Press; 2000:174–181.

14.Anonymous surgeon. Physicians and Medical Malpractice Litigation. Report to the Council of Medical Specialty Societies. Chicago: Survey Research Laboratory, University of Illinois; 2003.