- Email: [email protected]
Responding to an Accusation of Malpractice
INVISIBLE TO THE EYE
RICHARD B. GUNDERMAN, MD, PhD
Responding to an Accusation of Malpractice In May 2006, a Florida woman found her husband, a physician, hanging from a nylon rope in their bedroom closet, a suicide. Earlier in the day, the physician had listened in a courtroom as a jury pronounced its verdict, finding him liable in a malpractice lawsuit alleging that he had failed to remove a sponge at the conclusion of a surgical procedure and that the presence of the foreign body subsequently caused the plaintiff, a former patient, infection and pain. According to the physician’s wife, her husband was distraught at the prospect of paying three-quarters of the $1 million verdict—the proportion that exceeded his insurance limits— out of his own pocket. Yet financial implications are often only the tip of the iceberg in terms of the distress that such suits inflict on physicians. The subject of malpractice has received considerable attention in radiology, and legal issues in the field have served as the subject of book-length works [1,2]. The incidence of malpractice litigation, the types of errors that lead to it, and the steps radiologists can take to reduce them have been frequent topics of presentations at professional meetings, but the impact of accusations of malpractice on physicians is a subject that deserves renewed attention. For example, even though at least 70% of malpractice actions are eventually dropped by the plaintiffs or dismissed, the mere fact of having been named in such a suit can provoke consider shame and distress on the part of physicians and those around them [3]. It is important to recognize the difference between adverse outcomes and malpractice. In both cases, patients and health profes-
sionals may suffer. In the case of adverse outcomes, however, the harm results from the patient’s underlying disease process, not from an error on the part of a health professional. Some patients get sick or die despite the very best care that any physician, nurse, technologist, or hospital could provide, and no one is to blame for such outcomes. In other cases, the harm results from something that health professionals or health care organizations did or failed to do. For example, treatment may have been provided to the wrong patient, or a patient may have received the wrong medication, or the dosage may have been incorrect. Or treatment may have been withheld as a result of a diagnostic error. There are a variety of ways health professionals may respond to such incidents. Common immediate responses include surprise, anger, guilt, and humiliation. With time, feelings of remorse and depression may supervene. As health professionals continue to practice, an accusation of malpractice may lead to increased fear of making mistakes; a loss of confidence in knowledge, skills, and judgment; and a variety of signs of stress, including difficulty sleeping and concentrating. In some cases, health professionals may experience a loss of fulfillment in the practice of medicine. It can be difficult to feel a strong sense of identification and empathy with patients and colleagues when a health professional begins to see each one as a potential adversary. It is common to counsel colleagues who have been named in malpractice suits to avoid taking it personally. After all, errors are an inevitable part of human life, and
© 2010 American College of Radiology 0091-2182/10/$36.00 ● DOI 10.1016/j.jacr.2009.11.022
every health professional has made mistakes. Moreover, the mere fact that a malpractice suit has been filed does not prove that anyone has been negligent. If it is easy for physicians to confuse adverse outcomes with negligence, such conflation is even easier for patients and relatives, who feel lost after an unfortunate outcome and desperate to find some rational explanation for what happened, which can often mean finding someone to blame and hold accountable. On the other hand, if a patient has truly been harmed by negligence, it may be perfectly reasonable that the grievance be heard and the patient compensated. Despite the advice not to take it personally, it is difficult for health professionals, whose self-images are often so bound up with our work, to treat malpractice litigation the same way we might treat the weather, as a matter or relative indifference. After all, as physicians, we tend to invest a great deal of ourselves in our work and to view our sense of self-worth as closely tied to the quality of work we do and the differences we make in the lives of our patients and their families. In the extreme, to fail to take practice outcomes seriously would also mean depriving ourselves of the sense of fulfillment we derive from providing good care. How could we operate with a strong sense of personal responsibility and take pride in the quality of our work when the outcomes are favorable, yet suppose that we are not responsible and it cannot be our fault when things turn our badly? Some physicians have adopted mental habits that tend to exacerbate the psychological trauma of an 177
178 Invisible to the Eye
accusation of malpractice. They may exhibit very high degrees of perfectionism. They accept nothing less than perfection, and when they fall short of this standard, even slightly, they can be crushed. This attitude is not difficult to explain. After all, medicine’s rule number one is “First, do no harm,” and medical students and residents are schooled to be careful, to be meticulous, and to avoid mistakes. As students, we were the ones who took umbrage at grades that would have pleased many colleagues, always demanding of ourselves a very high level of performance. Naturally, the idea of committing an error that causes suffering and harm to a patient proves difficult for many to handle. It is important to recognize that no two patients are identical and that unforeseen and perhaps even unforeseeable turns of fate are going to occur from time to time. The short story “Imelda,” by retired Yale University surgeon and writer Richard Selzer [4], offers a profound glimpse into the psyche of the physician-perfectionist and the powerful psychological consequences of a rare adverse outcome. The physician in the story, a legendary plastic surgeon, is so enamored of the pursuit of perfection that he has learned to see his patients less as creatures of flesh and blood than as geometrical figures. He expects a level of precision and control that flesh does not admit and only a mathematician could demand. As a result, he is completely undone when one of his patients suffers an unforeseeable anesthetic complication. To suppose that error can be eliminated completely from the practice of medicine would be to fall prey to a vice that the ancient Greeks recognized as the greatest
and most characteristic of all human failings, namely, hubris, or overweening pride. To suppose that we must find someone to hold accountable, culpable, and blameworthy for every single adverse outcome is to succumb to one of humanity’s greatest delusions, the notion that human beings are in control of the unfolding of history and that every result is the product of a human choice, good or bad. In fact, we not only do not control every outcome, we cannot even foresee all the consequences of our choices. An appreciation of the law of unintended consequences opens the door to two of the greatest of the theological virtues: humility and forgiveness. Even when an adverse outcome results from a foreseeable and preventable error in judgment, it is usually not the case that all the blame should rest with a single individual. Often a number of people are involved, and faulty systems are likely to have played an equally or even more important role than any individual’s error in judgment. It is one of the ironies of our health care system that individual health professionals are often held responsible for mistakes that could have been prevented had hospitals and health care organizations designed and implemented better systems, yet the administrators of those organizations rarely shoulder any share of the burden of medicolegal liability when faulty systems fail to prevent errors. Health professionals need to avoid focusing all our attention and energy on mistakes. Yet all too often, this is exactly what happens. When it does, it can lead to a very unbalanced and unrealistic self-image, in which an entire career of excellence seems overmatched by a single er-
ror. This situation presents an important opportunity for collegial support, whereby each of us can remind a colleague of our sincere respect and admiration. Unfortunately, health professionals who have been sued, particularly the more perfectionist, tend to keep such events hidden, making it difficult for colleagues to recognize the need and offer support. The prospect of revealing the situation to someone else seems as threatening as the accusation of malpractice itself. One of the most helpful steps a health professional accused of malpractice can take is to talk with colleagues, friends, and family. When we keep things secret, there is a tendency for feelings of inadequacy, anger, and guilt to be magnified out of proportion to reality. When a colleague raises such concerns, it is equally important to avoid simply dismissing or brushing off the situation, as though it were not real. Although it may be unnecessary and even unwise to address the particulars of the case, most colleagues benefit from an opportunity to talk with someone about the situation and the ways they are coping with it. Moreover, talking about the situation can serve as an important learning opportunity. The counseling and advice provided by a colleague often proves to be both less helpful and more hazardous than simply listening. It is less helpful because many health professionals are not well educated about how to handle such situations and have little experience doing so. It is hazardous because giving the wrong advice can merely exacerbate the situation. Most of the time, a health professional discussing a malpractice case is looking less for advice than for acknowledgment, sympathy, and support.
Invisible to the Eye 179
Of course, both counsel and sympathy often mean more if they are coming from a colleague who has been through a similar experience, who can identify with and relate personally to the experiences and feelings being expressed. It is important that, in our zest to care for
patients, we not forget to care for physicians as well.
2. Eisenberg RL. Radiology and the law: malpractice and other issues. New York: Springer; 2003.
REFERENCES
3. Physician Insurers Association of America. Claims trend analysis 2004. Rockville, Md: Physician Insurers Association of America; 2004.
1. Berlin L. Malpractice issues in radiology. Reston, Va: American Roentgen Ray Society; 2009.
4. Selzer R. Imelda. In: Selzer R. The doctor stories. New York: Picador; 1998:83-97.
Richard B. Gunderman, MD, PhD, Indiana University School of Medicine, Department of Radiology, 702 Barnhill Drive, Room 1053, Indianapolis, IN 46202-5200; e-mail: [email protected].
RICHARD B. GUNDERMAN, MD, PhD
Responding to an Accusation of Malpractice In May 2006, a Florida woman found her husband, a physician, hanging from a nylon rope in their bedroom closet, a suicide. Earlier in the day, the physician had listened in a courtroom as a jury pronounced its verdict, finding him liable in a malpractice lawsuit alleging that he had failed to remove a sponge at the conclusion of a surgical procedure and that the presence of the foreign body subsequently caused the plaintiff, a former patient, infection and pain. According to the physician’s wife, her husband was distraught at the prospect of paying three-quarters of the $1 million verdict—the proportion that exceeded his insurance limits— out of his own pocket. Yet financial implications are often only the tip of the iceberg in terms of the distress that such suits inflict on physicians. The subject of malpractice has received considerable attention in radiology, and legal issues in the field have served as the subject of book-length works [1,2]. The incidence of malpractice litigation, the types of errors that lead to it, and the steps radiologists can take to reduce them have been frequent topics of presentations at professional meetings, but the impact of accusations of malpractice on physicians is a subject that deserves renewed attention. For example, even though at least 70% of malpractice actions are eventually dropped by the plaintiffs or dismissed, the mere fact of having been named in such a suit can provoke consider shame and distress on the part of physicians and those around them [3]. It is important to recognize the difference between adverse outcomes and malpractice. In both cases, patients and health profes-
sionals may suffer. In the case of adverse outcomes, however, the harm results from the patient’s underlying disease process, not from an error on the part of a health professional. Some patients get sick or die despite the very best care that any physician, nurse, technologist, or hospital could provide, and no one is to blame for such outcomes. In other cases, the harm results from something that health professionals or health care organizations did or failed to do. For example, treatment may have been provided to the wrong patient, or a patient may have received the wrong medication, or the dosage may have been incorrect. Or treatment may have been withheld as a result of a diagnostic error. There are a variety of ways health professionals may respond to such incidents. Common immediate responses include surprise, anger, guilt, and humiliation. With time, feelings of remorse and depression may supervene. As health professionals continue to practice, an accusation of malpractice may lead to increased fear of making mistakes; a loss of confidence in knowledge, skills, and judgment; and a variety of signs of stress, including difficulty sleeping and concentrating. In some cases, health professionals may experience a loss of fulfillment in the practice of medicine. It can be difficult to feel a strong sense of identification and empathy with patients and colleagues when a health professional begins to see each one as a potential adversary. It is common to counsel colleagues who have been named in malpractice suits to avoid taking it personally. After all, errors are an inevitable part of human life, and
© 2010 American College of Radiology 0091-2182/10/$36.00 ● DOI 10.1016/j.jacr.2009.11.022
every health professional has made mistakes. Moreover, the mere fact that a malpractice suit has been filed does not prove that anyone has been negligent. If it is easy for physicians to confuse adverse outcomes with negligence, such conflation is even easier for patients and relatives, who feel lost after an unfortunate outcome and desperate to find some rational explanation for what happened, which can often mean finding someone to blame and hold accountable. On the other hand, if a patient has truly been harmed by negligence, it may be perfectly reasonable that the grievance be heard and the patient compensated. Despite the advice not to take it personally, it is difficult for health professionals, whose self-images are often so bound up with our work, to treat malpractice litigation the same way we might treat the weather, as a matter or relative indifference. After all, as physicians, we tend to invest a great deal of ourselves in our work and to view our sense of self-worth as closely tied to the quality of work we do and the differences we make in the lives of our patients and their families. In the extreme, to fail to take practice outcomes seriously would also mean depriving ourselves of the sense of fulfillment we derive from providing good care. How could we operate with a strong sense of personal responsibility and take pride in the quality of our work when the outcomes are favorable, yet suppose that we are not responsible and it cannot be our fault when things turn our badly? Some physicians have adopted mental habits that tend to exacerbate the psychological trauma of an 177
178 Invisible to the Eye
accusation of malpractice. They may exhibit very high degrees of perfectionism. They accept nothing less than perfection, and when they fall short of this standard, even slightly, they can be crushed. This attitude is not difficult to explain. After all, medicine’s rule number one is “First, do no harm,” and medical students and residents are schooled to be careful, to be meticulous, and to avoid mistakes. As students, we were the ones who took umbrage at grades that would have pleased many colleagues, always demanding of ourselves a very high level of performance. Naturally, the idea of committing an error that causes suffering and harm to a patient proves difficult for many to handle. It is important to recognize that no two patients are identical and that unforeseen and perhaps even unforeseeable turns of fate are going to occur from time to time. The short story “Imelda,” by retired Yale University surgeon and writer Richard Selzer [4], offers a profound glimpse into the psyche of the physician-perfectionist and the powerful psychological consequences of a rare adverse outcome. The physician in the story, a legendary plastic surgeon, is so enamored of the pursuit of perfection that he has learned to see his patients less as creatures of flesh and blood than as geometrical figures. He expects a level of precision and control that flesh does not admit and only a mathematician could demand. As a result, he is completely undone when one of his patients suffers an unforeseeable anesthetic complication. To suppose that error can be eliminated completely from the practice of medicine would be to fall prey to a vice that the ancient Greeks recognized as the greatest
and most characteristic of all human failings, namely, hubris, or overweening pride. To suppose that we must find someone to hold accountable, culpable, and blameworthy for every single adverse outcome is to succumb to one of humanity’s greatest delusions, the notion that human beings are in control of the unfolding of history and that every result is the product of a human choice, good or bad. In fact, we not only do not control every outcome, we cannot even foresee all the consequences of our choices. An appreciation of the law of unintended consequences opens the door to two of the greatest of the theological virtues: humility and forgiveness. Even when an adverse outcome results from a foreseeable and preventable error in judgment, it is usually not the case that all the blame should rest with a single individual. Often a number of people are involved, and faulty systems are likely to have played an equally or even more important role than any individual’s error in judgment. It is one of the ironies of our health care system that individual health professionals are often held responsible for mistakes that could have been prevented had hospitals and health care organizations designed and implemented better systems, yet the administrators of those organizations rarely shoulder any share of the burden of medicolegal liability when faulty systems fail to prevent errors. Health professionals need to avoid focusing all our attention and energy on mistakes. Yet all too often, this is exactly what happens. When it does, it can lead to a very unbalanced and unrealistic self-image, in which an entire career of excellence seems overmatched by a single er-
ror. This situation presents an important opportunity for collegial support, whereby each of us can remind a colleague of our sincere respect and admiration. Unfortunately, health professionals who have been sued, particularly the more perfectionist, tend to keep such events hidden, making it difficult for colleagues to recognize the need and offer support. The prospect of revealing the situation to someone else seems as threatening as the accusation of malpractice itself. One of the most helpful steps a health professional accused of malpractice can take is to talk with colleagues, friends, and family. When we keep things secret, there is a tendency for feelings of inadequacy, anger, and guilt to be magnified out of proportion to reality. When a colleague raises such concerns, it is equally important to avoid simply dismissing or brushing off the situation, as though it were not real. Although it may be unnecessary and even unwise to address the particulars of the case, most colleagues benefit from an opportunity to talk with someone about the situation and the ways they are coping with it. Moreover, talking about the situation can serve as an important learning opportunity. The counseling and advice provided by a colleague often proves to be both less helpful and more hazardous than simply listening. It is less helpful because many health professionals are not well educated about how to handle such situations and have little experience doing so. It is hazardous because giving the wrong advice can merely exacerbate the situation. Most of the time, a health professional discussing a malpractice case is looking less for advice than for acknowledgment, sympathy, and support.
Invisible to the Eye 179
Of course, both counsel and sympathy often mean more if they are coming from a colleague who has been through a similar experience, who can identify with and relate personally to the experiences and feelings being expressed. It is important that, in our zest to care for
patients, we not forget to care for physicians as well.
2. Eisenberg RL. Radiology and the law: malpractice and other issues. New York: Springer; 2003.
REFERENCES
3. Physician Insurers Association of America. Claims trend analysis 2004. Rockville, Md: Physician Insurers Association of America; 2004.
1. Berlin L. Malpractice issues in radiology. Reston, Va: American Roentgen Ray Society; 2009.
4. Selzer R. Imelda. In: Selzer R. The doctor stories. New York: Picador; 1998:83-97.
Richard B. Gunderman, MD, PhD, Indiana University School of Medicine, Department of Radiology, 702 Barnhill Drive, Room 1053, Indianapolis, IN 46202-5200; e-mail: [email protected].