The Shame of Malpractice Lawsuits

This posting is not about tort reform. It is not about defensive medicine (e.g., MDs taking too many tests to avoid the chance of lawsuit.) It is not about controlling costs or improving the quality of care. It is not even about whether malpractice lawsuits are fair. It is about the emotional effect on a doctor when he or she is sued for malpractice.

A friend of mine (I’ll alternate genders to help maintain confidentiality) recently found herself in this situation. By any measure, this person is an excellent physician. She has impeccable clinical judgment when it comes to both diagnosis and treatment. She has superb interpersonal skills and bedside manner. She is highly respected by her peers, by the nurses, and by all who know her.

Recently he found himself as a defendant in a malpractice lawsuit. The details and merits of the case don’t matter all that much. The patient had been under his care for many, many years and was always satisfied with the quality of care offered. After the patient died, the patient’s children sued.

Even though she knew that she had done nothing wrong, my friend’s main emotional response to the lawsuit was that she was ashamed. She did not want anyone to know about the case — whether colleagues in the hospital or social friends. I was stunned. Without knowing any of the evidence in the case, I was confident that this doctor had done her best in treating another human being and would be appalled to think she had done anything to create harm. I also knew this person to be as well trained and well intentioned as anyone I could imagine.

And, yet, he felt shame in being named as a defendant in a case that accused him of negligent treatment. As I talked to other doctors, I learned that this was a common reaction to such lawsuits. Another friend talked of the scars left from a case 20 years ago. He was found not to be at fault, but he could still vividly recall the weeks of shame he felt while the case proceeded.

What is it that makes doctors respond in this way? Are they so naive about the legal system that they are not able to absorb its brickbats with equanimity? After all, people in other fields are sued all the time, and while they feel many emotions, usually shame is not at the top of the list.

I think it is this. Doctors devote their lives to alleviating human suffering caused by disease. They spend decades in training. They disrupt their family lives to be available to help others. For them, this is a calling. It is not part of their life. It is their life. They measure their worth to their community and ultimately value themselves by their unfettered dedication to this cause — and by society’s appreciation for it.

A malpractice claims shatters this construct. In the doctor’s mind and heart, it says, “Society does not value all that I have devoted my life to. They do not believe I am worthy of trust that is granted to me, notwithstanding the effort, energy, and dedication I have given to this calling.” And perhaps he even says, “Maybe I am not really as good a doctor or as good a person as I think I am.”

For someone who has spent his or her whole life basking in the gratitude and admiration of individuals and society, this can be a devastating experience. Even when the verdict is issued, clearing the doctor of all wrong, it can leave a terrible scar.

As this particular case proceeded, I was really pleased to see an evolution in the doctor’s feelings. After watching the opposing witnesses misrepresent the clinical evidence in the case, she got really, really angry. Her sense of shame evaporated. It was replaced by an outrage that the patient’s children, the plaintiff’s lawyer, and members of her own profession were causing her to spend hours away from the care of other needy patients. With the arrival of anger, her confidence returned.

Sure enough, he was cleared of all allegations. He came back to work, and I was heartened to see that caring smile return to the floors of our hospital. I hope he never has occasion to feel unwarranted shame ever again.

Paul Levy is the President and CEO of Beth Israel Deconess Medical Center in Boston. Paul recently became the focus of much media attention when he decided to publish infection rates at his hospital, despite the fact that under Massachusetts law he is not yet required to do so. For the past three years he has blogged about his experiences in an online journal, Running a Hospital, one of the few blogs we know of maintained by a senior hospital executive.

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13 replies »

  1. The writer presents all doctors as called for the benefit of mankind and all put their patients welfare above colleagues and their own self interests. I wish this were true. There are many doctors that will not fully disclose errors and leave patients in the dark only to protect themselves from lawsuits. This is why most malpractice suits are filed, because patients become frustrated with not being able to get straight answers. Then all doctors circle the wagons and patients can never get candid information about their health issues.
    So, ask yourself, all of you top notch, caring doctors, “How many times have you lied and covered your mistakes to protect you own behind?

  2. so when you get sued, and when we ask for justice, the system tries to keep you from justice, but for, so what, and as the law of tort has and will change to criminal charges and so on, hey, someone dies and get a rash and almost dies becasue some medical profesional used you as an experiment and all you needed was an occupational therapist, well, money, money, money,
    Jack Dairkill

  3. Medical Mal practice
    let me begin, when doctors, thrive on trafficing in persons, and whenthey themselves prescribe excesive amounts of drugs, when they even intentionally kill, when they just want to keep you quiet and feed you poor quality services;
    of course we know just what we are doing, money, money, money…..Johnny

  4. Really interesting discussion. I have reviewed about 120 malpractice cases, for both plaintiff and defense. In my experience, I agree with the defense two times out of three, and I agree with the plaintiff one time out of three. By far the majority of my work is in clinical practice (not expert witness work), and in giving opinions to lawyers I always use evidence based guidelines and/or appropriate literature, and I’ll give them both sides of the evidence story. The good lawyers like this approach. The bad ones get rid of me, and I’m happy not to hear from them again.
    I read many depositions from so-called experts who spout opinions pell-mell, often completely contradicting literature. I don’t know if they do it because somebody pays them to, or because they just have opinions that are out of left field. (Sometimes they are really out there.) The problem is that juries don’t know the difference. In my own practice, I’ve started putting in references to literature to substantiate my decisions. It has made me much more attentive to the literature, I can tell you. However, the lawyers tell me that the references I put in can often contain things that contradict my decisions. But they also say that you are much better off including your rationale for your decisions in your notes. So I say I’d rather take that risk.
    There are certainly emotional costs to physicians upon being sued. If you believe my case record, 1/3rd of the time the doctor was in the wrong. (Reasonable people may disagree, of course.) I don’t suggest that means willful negligence, but cases only go forward if there is a bad outcome of some kind. So patient and family suffer because of the doctor(s) in those cases (in my opinion). However, blog posts and stories written by doctors always seem to highlight those cases where the doctor was the victim of an unjust and avaricious (and in this post mendacious) family and lawyer. This seems a bit tendentious to me. I’d like to read one that depicts the doctor’s feelings when they are found to be in the wrong, and they know that they really were in the wrong. They feel great shame and grief (if it’s a really bad outcome), if they are good doctors. They never really get over it, but it makes them better doctors if they can get through it in a healthy way.
    Two more points:
    I very often find in my legal reviews that some medical person acquainted with the patient or family has caused the lawsuit by saying that the outcome should not have occurred. Often, but not always, the remark comes from someone who only knows the outcome, not how the illness and care progressed. Sometimes not. Just yesterday I was in a patient’s room with an oncologist, one whom I would have as my doctor any day, and he said something that made it sound like something our team had done was a mistake that had cost us time. That was not at all the case, and I called him later to clarify it. He told me he had just been expressing frustration, which we all shared. That family could easily turn around and sue us on that basis. And he thought he was being empathetic. So to those doctors who think there are too many lawsuits, I would say, watch your impulsive remarks.
    Finally, it is helpful to apologize and admit your mistake, if you’ve made one. There is apparently good evidence to this effect. I’ve heard from lawyers many times that patients tell them they really just don’t want what happened to them to happen to anybody else. I know there are avaricious and vengeful people in the world, and some of them are the plaintiffs or their lawyers. But apparently there are some conscientious potential plaintiffs as well. I’d love to read some posts from doctors who made a mistake that really hurt or killed someone, and who then apologized. How did it feel? What happened next?

  5. Gary wrote: “Lawsuites are seldom enacted unless some form of strong proof has been revealed.Lawyers are like used Car salesman who only sue on a sure thing.” Perhaps it is this common belief that anyone accused is likely guilty that leads to a reluctance to discuss these accusations.
    I question Gary’s assumption. For example, in 1986 a Philadelphia jury awarded a woman more than $900,000 in damages because she claimed her psychic powers had been damaged during a CAT scan at Temple University Medical School (New York Times, March 29, 1986). – Skeptical Inquirer Nov/Dec 1996.
    Personally I think much of the blame for inappropriate suits can be placed on the medical experts. I have found that lawyers sometimes have as inaccurate a view on what is medically correct as physicians have on what is legally correct. Malpractice lawyers rely on medical experts, some of whom will support rather outrageous claims. The courts have allowed some physicians to testify as experts who make unscientific, unrealistic, inaccurate claims to support lawsuits. Unfortunately the judge, lawyers, and jury lack sufficient medical knowledge to be aware that their testimony is not reliable. The jury will decide which expert is more believeable without any way to learn enough medicine to know the truth. It is like voting for opposing engineering views before building a bridge instead of determining which engineer has designed a satisfactory bridge based on engineering principles.

  6. “It is about the emotional effect on a doctor when he or she is sued for malpractice.”
    And about the emotional effects on injured patients, not to mention the financial ones.
    “The details and merits of the case don’t matter all that much.”
    Oh, but they do.
    “After all, people in other fields are sued all the time”
    By doctors?
    “Sure enough, he was cleared of all allegations”
    Then the system worked, didn’t it.

  7. Interesting article and human perspective. I have to ask that within the enviromental and cultural peer review. Is it possible that within this bubble; You have created a false sense of Security and a buffer from real world realities?
    Those of us who work in the private sector deal with being rejected, questioning our motivations and being sued. We also make our mission to serve:putting ourselves last. To provide for our customers as well. Anyone who has any pride in their Profession of choice share the Same Feelings. Therefore I see no real differences in Health Care.
    Lawsuites are seldom enacted unless some form of strong proof has been revealed.Lawyers are like used Car salesman who only sue on a sure thing. Besides,Doctors have more to fear from insurance Companies sue than Patients.
    I agree that Good Doctors are often grouped in with some whom have a doubious Distinction of being Honest. Let alone having morals.Unfortunate as it is;Doctors are not alone.

  8. Thank you for writing this. I too have seen physicians sued who were, by all measures, top notch. The experience for them of being dragged through years of depositions and legal wrangling was devasting. They never knew whether all they had worked for would be wiped out by a single jury verdict who felt sorry for someone who happened to have a bad outcome regardless of the quality of the care that was delivered. It’s not simply one’s reputation that is at stake but personal financial assets if the jury award is greater than one’s malpractice coverage. Watching others experience this nightmare has only served to make me much more tentative and reluctant to take on tough cases. It certainly has not made me a better physician because I see that ever possible well-intentioned effort could be second-guessed and twisted around at a moments notice. Certainly patients deserve to receive compensation when a mistake actually occurs and they require ongoing treatment and care as a result. But terrorizing well-trained and well-intentioned physicians with the spectre of frivolous lawsuits does no good for anyone.

  9. In medicine we physicians are taught that the patient and family’s welfare is a priority even before the physicians’ own welfare. We have been abused badly by our system. In many many cases a bad outcome is inevitable. Good Health is a gift and it cannot be assigned to the physician. We merely stand in the way of inevitability and in some cases succeed. We physicians cannot guarantee health. I don’t know the specifics of this case, nor what the merits were. I hope you have your physician back for good. Nice to know he (she) had such great support from the hospital admin as well. At times this is not the case and we are divided and torn apart and no one comes out for the better

  10. Thank you for writing this. Sums it up perfectly to me. I have yet to be sued, thanks to whatever fates have supported me thus far in life, but this is what I have heard equally from colleagues who were wrongfully sued.
    We do this as a calling. I just hope someone who doesn’t get this tries to write something shameless and rude.
    You never know when that adage comes back at you: what goes around comes around!

  11. If government licensing was removed along with its false sense of secruity and people put more effort into their own healthcare decision making, lawsuits would not occur as much. People should be able to sue and have no caps on damages, but government licensing and price insensitivity on behalf of the consumer have created a monster of a healthcare system in this country.
    What really gets me is when stupid judges actually CRIMINALIZE negligence or errors resulting from process issues, not the individual. This only encourages hospitals and practitioners to hide errors even more than they already do.