No, I am sure that I have post litigation stress disorder. It does not actually exist yet as a recognized disorder, but I most certainly have it. You know what else? Countless other physicians have it too. We don't talk about it. Besides the fact that your lawyer forbids you to speak of on-going litigation to anyone, especially colleagues, there is such a culture of shame surrounding this subject. Although we now live in a world where "it's not if, but when," we still tell ourselves and each other, subliminally, that being sued means you are a bad doctor, maybe even a bad person. So we accept this ugly lie as absolute truth and we bury and internalize the shame.
This is about to get very vulnerable. I have decided that I do not want to bury it any longer. It's not just hurting me, it is yet another institutional barrier between myself and my patients, so it is damaging the doctor-patient relationship as well. I want to share my experience with both my physician colleagues and patients, precisely the two audiences from whom most of us hope to hide this insidious shame.
When I was in medical school, I recall fear of litigation being a deterrent to doctors entering the field of OB/GYN. As I entered and progressed through OB/GYN residency, I remember telling myself that I didn't need to worry about that. I was passionate about the field, I was very good at my craft, I was a hard worker who always brought my A-game and I had a very kind and compassionate bedside manner. I thought I had all the protection I needed against litigation.
Fast forward to just a few months shy of 10 years of private practice and I was served my first summons. I was in my office (that's right, the plaintiff's attorney had it delivered to my office, during office hours, while I took care of my patients) when my manager led a gentleman from the waiting room to my desk because he was "required by law" to speak to me. At least he was civilian - I know some colleagues have been served in this same manner, but by uniformed police. This is step 1 in the process of demoralization. When I realized what was happening, I truly had an out of body experience. Thank god for the mindfulness meditation practice I had started a few years prior, otherwise, I am not sure how I would have made it through the next few hours and the end of my clinic day.
Step 2 in the demoralization process is an inch-thick pile of blithering legalese, cut and pasted from an out-of-date, law school template (by, what in my imagination, is a pasty, bald guy in a poorly fitting suit who is not even smart enough to know that he doesn't have the acumen to judge a physician's competence) that is peppered with deeply personal and professional gut punches like "negligence." My advice: Do not read this. Besides the fact that it is a giant waste of a doctor's valuable time, in my experience, there is a very vague complaint, very little substance and a great deal of emotional abuse in it - like I said, demoralization step 2. Let your attorney read it and ask them for the cliff notes. Save your emotional energy for believing in yourself and defending your good practice of medicine.
Demoralization step 3 comes from all directions, but sadly may even come from the malpractice defense team when they tell you "this isn't personal." Correction, it is not personal to attorneys. To the doctors who have sacrificed and poured themselves, mind, body and soul, into the lifelong pursuit of their craft and the care of their patients, it is deeply, profoundly personal. To the patient who had a bad outcome and has now been convinced by some greedy ambulance-chaser that their trusted, compassionate doctor maliciously injured them, it is deeply, profoundly personal.
Which brings me to pain and suffering. Of course, we all know that for lawyers, pain and suffering is a way to pad a settlement or judgement. But what of the pain and suffering that the patient and their family endure over years of legal back and forth, having their personal medical history become public record through depositions and court proceedings, reliving and retelling their tragedy over and over again. At the end of the painful, years-long legal process, when they get a settlement or judgement and their attorney takes 40% (after expenses) maybe more, is their lot improved or their pain and suffering alleviated? And what if they get no settlement or judgement? What about the pain and suffering of physicians who are emotionally broken by the trauma of this process and the impact that this has on their families and their other patients? Or the suffering of patients who cannot find a caring, compassionate physician because of this malignant legal climate? The demoralization ripples outward.
I am not suggesting that there should be no legal recourse for true medical malpractice. What I am saying is that not every bad outcome can be predicted or prevented, and not every bad outcome is the result of malpractice. Launching this malicious, formulaic, yet highly personal attack on doctors, and emotionally manipulating patients at a very fragile time in their lives, is a perversion. A bad outcome can be investigated without demoralizing doctors and emotionally traumatizing patients The medical malpractice system in this country does not serve to protect patients but, rather, has become yet another billion-dollar industry that commoditizes the doctor-patient relationship. The American Trial Lawyers Association, through abundant political contributions, drives policy that supports and maintains this dirty industry.
With regard to my own painful malpractice experience, my conscience is crystal clear with respect to the care I delivered, but I still carry the trauma and the shame heaped upon me by this vile industry. Like most doctors, I think that I have a fairly iron constitution, but I know that it has affected my family and my relationships with my other patients, which gives me both great sorrow and rage all at once.
If we want a system that protects patients and the good practice of medicine, we have to demand change. Tort law should apply when there are two parties with no contractual agreement, like a drunk driver who injures or kills a pedestrian or another motorist. Why does this apply to the doctor-patient relationship where there is a mutual agreement to give and to receive care? I suspect because it serves the industry to pit us against one another as if we are strangers. Perhaps we could curb meritless lawsuits like our neighbors in Canada or in Australia where if a plaintiff loses their case, they pay the costs of the defense as well. Patients with legitimate claims should take no issue with this.
The saddest thoughts I have been plagued with throughout this process are, "will there be any doctors to take care of my children when they are grown... who will have the courage to deliver my daughter's babies in this hostile world we've allowed to come to fruition?" The doctor-patient relationship is not served by our current litigation system, and in fact is deeply wounded by it. Anything that does not serve the patient and support the doctor-patient relationship, has no place in healthcare. There may be a plaintiff's attorney on every billboard you pass, but doctors are fleeing this hostile system in droves. Who do you want to deliver your baby's baby?