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Sued or Fired? Riding the Emotional Rollercoaster
Would you prefer to endure a medical malpractice lawsuit, or would you rather be terminated from your employment? Is there much difference in your emotional rollercoaster ride with either option? Would you want somebody who has ridden that rollercoaster before to assure you that the hellish ride will eventually finish?
by Wendy B. Kang, MD, JD
Would you prefer to endure a medical malpractice lawsuit, or would you rather be terminated from your employment? Is there much difference in your emotional rollercoaster ride with either option? Would you want somebody who has ridden that rollercoaster before to assure you that the hellish ride will eventually finish? Each person who has faced a medical malpractice lawsuit has asked themselves questions just like this before. Have you?
Most physicians are ethical, holding to the belief that we do not harm our patients. More than that, we advocate for the best interests of our patients. As Christian physicians, we also believe in the Great Physician and uphold the sanctity of human life. We see the image of God in our patients. We strive to maintain the physical, emotional and spiritual health of our patients. As a result, we give our utmost to God and to our patients. And yet, two out of four physicians are sued for malpractice.1 Even Christian physicians and non-physicians are sued. How can that happen? As we open that summons and citation document to read those maddening allegations of negligent and reckless care, our inner souls scream in anguish. The rollercoaster is pulling out of the station. On the same rollercoaster is another rider: the one with the pink slip of impending termination as an employed physician.2 Perhaps patients have complained of not being treated promptly and properly, or perhaps they claimed they were abandoned to wander aimlessly among consultants. Conversely, when you advocated strenuously on behalf of your patient to get prompt lab work or CAT studies done, you got reported to the health entity administration as being a “difficult” physician. When you needed to meet time constraints to get into the operating room and the check-in nurse had no such sense of deadlines, you got written up for “disrespecting” the nurse for honing in on the patient. Perhaps you tried to educate your patient that Plan B, e.g. losing weight, was safer and had more scientific evidence for efficacy than the patient’s desired Plan A of continued growing obesity, but the patient gave you an “unsatisfactory” customer rating. You scream in denial, “This can’t be! How could my patient accuse me of that?” Where is the justice in all this? Incompetent and uncaring healthcare professionals should not be working in this field, but they do. We see them. They are not improving care, but they are simply laying low and getting by. They are not be-ing sued for medical malpractice. Nobody is hauling them into the employer’s office to be warned of their growing dossier of complaints, which is the needed paper trail to justify termination.
On the other hand, ethical and competent physicians feel their professional and personal sense of honor in doing the right things for their patients is being shredded. “Don’t take it personally, Doc!” is common lawyerly advice. Inside your soul you seethe with anger because, “It IS personal!” Thoughts careen through your mind like the cart flies along the coaster track: “What must my patients and my colleagues think of me?” or “I must be a bad doctor.” As your rollercoaster begins the downward descent into the valley of living death, your emotional turmoil spills into your physical health. Your appetite is off. You can’t sleep well. You can’t focus on your work at the office. You find yourself wondering which patient is going to hit you with a malpractice lawsuit or an unsatisfactory rating. Should you order extra tests to practice defensively? Should you placate patient demands by offering treatment which you still feel would not help by using the “well, it won’t hurt” rationalization? You feel as if you are walking on eggshells. Who is going to feel disrespected even when you are not trying to hurt their feelings? As uncertainty, self-doubt and self-loathing crush you in your downward spiraling ride, you are gripping to hold on to the end. But is the end in sight? This emotional malpractice rollercoaster might last a year, an average of four years or even longer. Termination for an employed physician might come within a year. Young physicians fresh out of residency discover that what sounded like a really good job comes with hidden costs, such as meeting patient quotas or productivity metrics, lack of physician autonomy and bottom line business before real healthcare for patients. If they have the guts to do the right thing by speaking up, they may pay the ultimate price of being fired, under the allegations of being a difficult or incompetent physician.3,4
Termination clauses in employment contracts may spell out reasons for firing. Some may specify possibility to remedy whatever shortcomings the physician may have demonstrated. When the company employee’s file is being filled with complaints, the physician should start a personal record to document the other side of the story. Documentation is always better than a faulty memory. Seeking advice of an attorney with expertise in healthcare employment contracts costs money, but a good name is worth the cost. Medical malpractice lawsuits mandate more defined criteria, which the plaintiff-patient must satisfy to succeed in court. The sued physician must understand that lawyers are also professionals who hate to lose. The plaintiff ’s attorney will besmirch the physician’s actions and reputation to prove: (a) the physician had a duty to care for the patient; (b) the physician breached the standard of care; and (c) the patient suffered harm as a direct result of that negligence. Damages usually means money paid to the plaintiff ’s attorney for professional fees and legal expenses such as depositions and expert witnesses, while a percentage goes to the patient who has usually not paid a single cent. The medical malpractice insurance company usually pays the attorney defending the physician for as long as the case winds tortuously through the legal tracks. The defense attorney tries to break the criteria by claiming: (a) the physician did not have a duty to the patient; (b) the physician did meet standard of care; or (c) if the patient sustained any harm, it was not the proximate or direct result of the physician’s actions and the patient does not deserve any compensation.
Sounds harsh, doesn’t it? It can leave a pretty bad taste in your mouth too, if you’re forced to endure the involuntary ride, especially when you tried to do everything you thought was right for your patient. Unfortunately, your patient disagrees. So what should you do if you find yourself holding a citation, summons or pink slip? Do not jump off the rollercoaster and harm yourself! Do not go off the deep end. There are ways to cope with these adverse events.5 First, pray to your Almighty God. God promised to never forsake you. You must trust that your loving and awesome God will carry you through the valley of depression. If He gave His only begotten Son to die for your sins and you accepted that gift of eternal life, you are loved and will be cared for throughout this trial. You live in a fallen, sinful world. Life here is unfair. How often does the Bible remind you not to be anxious, but to cast your anxieties upon our Lord? King David faced many tribulations in his time. Open the Bible to Psalms to read his cries to God.
Let go of the anger and the denial. Admit this stage of your life as a grieving process. Let your lawyer do the bargaining, but stay actively involved. Move on with your life by accepting what sinful humans are doing to you. More importantly, accept the plan God has for you. God chastises His children because all things work for the good of those who love the Lord. Be transformed. Accept the peace of God. Try to forgive. Remember, “And Jesus said, ‘Father, forgive them, for they know not what they do’” (Luke 23:34a, ESV).
Do not isolate yourself. Even though your attorney may advise you not to speak about the situation with others, you can and should reach out to family and friends for emotional support. Asking for moral comfort does not equate to divulging facts about your quagmire. Attend church. Sing. Eat. Rest.
Use your brain. How have you tackled other obstacles in the past? Study the legal processes of discovery, jury trials, mediation, settlements, summary judgments and appeals. If you survived organic chemistry or could memorize the Kreb cycle, you can learn the basics of Law 101. Physicians of CMDA’s Medical Malpractice Ministry (MMM) are ready and willing to join you on that roller-coaster and ride it with you throughout the process—but only if you let us know. All the physicians who volunteer and serve with the MMM have previously been summoned, cited and accused of being reckless, negligent and breaching the standard of care for our patients. We can empathize with your pains about being squeezed out of your employment. We cannot give you legal advice, but we understand your emotional state. We have experienced that fearful ride through the valley of despair. The awful rollercoaster ride does end. We have survived, as will you. We believe in Son-Shine! We believe in the awesome power of prayer to our Heavenly Father. We are your brothers and sisters in Christ. Where two or more are gathered, there is God. Call us. We want to help.
BIBLIOGRAPHY
1 Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice Risk According to Physician Specialty. N Engl J Med 2011; 365;7:629-636. Downloaded from NEJM.org. Accessed May 31, 2018.
2 Singleton T, Miller P. The Physician Employment Trend: What You Need to Know. Downloaded from the Family Practice Management website at www.aafp.org/fpm. Copyright 2015. American Academy of Family Physicians. Accessed April 6, 2018.
3 Berlin J. The Risk of Speaking Up. https://www.texmed.org/TexasMedicine- Detail.aspx?id=47199. Accessed April 6, 2018.
4 Berlin, J. Fair Evaluations, No Witch Hunts. https://www.texmed.org/Tex- asMedicineDetail.aspx?Pageid=46106&id=34118. Accessed April 6, 2018. 5 Charles SC. Coping with a medical malpractice suit. West J Med 2001;174:55-58.
WENDY B. KANG, MD, JD, is Clinical Professor of Anesthesiology at the University of Texas Health Science Center at San Antonio. She is board certified in anesthesiology with additional certification in pain medicine, both of which she uses in reducing surgical and postoperative pain in patients while teaching residents and medical students. She obtained her law degree from Southern Methodist University School of Law while practicing full-time as a physician. She passed her Texas State Bar in 1993 and promptly put herself on inactive status as attorney, preferring to nurture the patient-physician relationship as influenced by law, medicine and ethics, rather than engage in an adversarial legal system.