Saving Doctors and Ourselves

"This case is killing me."

I can’t tell you how many times I’ve heard those five words. I defend doctors when they’re sued for negligence. I’m a medical malpractice defense attorney, but attorneys are also called “Counsel”. Most of my time is spent counseling. Medical malpractice cases are always about allegations. Sometimes the allegations are true, but often they aren't. Either way, these cases make doctors doubt themselves, their patients and the system. Sometimes doctors know they made a mistake. (This is a good time to remember-we all have bad days. The repercussions of their bad days can be deadly). When that happens, doctors usually want the case to settle and the patient to be compensated, as if that’s possible. It’s not. How can a patient be “compensated” for being injured, sometimes catastrophically, by someone who was meant to help them? Just because a doctor wants his case to settle doesn’t mean it will. At that point, the process becomes like buying a car. Settlement is a negotiation, and if the parties don’t agree on a number the case will try. 

“It’s killing me.” Sometimes, most times, the doctors know they did everything right. Those are the cases that feel like they might kill us both. 

It’s my job to tell doctors’ stories to juries, in courtrooms. But there’s a lot I don’t get the chance to say. 

She was a young, brilliant, compulsive and passionate surgeon, a female in what is still a man’s world. Life and death were at her fingertips, in a specialty where she saw as much of one as the other. This case, her first, involved the death of a teenager on her operating table. She had a teenager, and while her professional demeanor was an attempt to mask her anguish over this patient, her eyes were bad liars. We both knew she’d done everything above and beyond the medical standard of care but that brought no solace when she was wracked with the power of "what ifs" at 3am. Right before trial she’d moved across the country to take a position that meant the world to her and her family. And she’d just had her second child, a surprise baby for a woman who otherwise did not like surprises. She flew in for the two week trial, and stayed at a hotel across the street from the courtroom. Her baby, and a nanny, came with her and she’d run across the street to breast feed during every break. My biggest challenge prepping her for trial was her utter dismay whenever we came to the point in her testimony when the patient died. Juries can sometimes resent doctors who cry. What does she have to cry about, when a mother lost her son? This jury was able to tap into empathy for all of the victims in that courtroom, including the doctor. They found she was not negligent. We remain friends and to this day when our trial comes up, her recollection is “That case almost killed me.”

Doctors are burning out and, without them, so will we. 

A recent piece in US news reported on the prevalence of doctor burnout. According to this piece, 49% of doctors meet the definition of burnout, compared to 28% of other U.S. workers. There’s no mention of the role lawsuits play, but I've seen it in practice. I've seen the radiologist who quit his job because he couldn’t stop going back to reread films after he had admittedly missed a fracture. What if he missed something more serious? I've seen the urologist who chose medicine to build relationships with his patients, like the one his father had with his urologist after a prostate cancer diagnosis. After his first case, he shifted to consulting. He’d lost trust in those he treated. 

Patients and doctors need to work together to make lawsuits uncommon. 

When we prep for trial, we call our offices war rooms. The problem is, war kills. Studies show the legal process itself is a trauma. In my experience, this is true for all parties to litigation. This is why I've tried to shift the focus from defending lawsuits to preventing them. And that, it turns out, means we need to focus not just on better systems and better documentation, but also better relationships and being better patients. 

Reminding doctors of the importance of empathy is part of the answer. Better relationships between doctors and patients lead not only to fewer lawsuits, but more importantly to improved outcomes. Your doctor's level of empathy impacts your health. Most doctors went into medicine to care for their patients. However, over time the focus has shifted to defensive medicine, high volume, and electronic medical records. What you focus upon grows, and empathy has been a casualty. Doctors spend less and less time with patients, they interrupt too soon and too often, and they look at the computer rather than into your eyes. Working with doctors and their staff on getting back to empathy is the most rewarding thing I do. But what about empathy for doctors? 

Empathy is the ability to understand and share the feelings of one another. Doctors need to work on it-and so do patients. 

I’m at a disadvantage at trial. Every single juror is, or had been, a patient. In fact, the judge, the lawyers, the court crier, and the doctor himself have all been patients too. We can all understand the feelings of a patient. It is much harder for us to understand the feelings of a doctor. We don’t know what it’s like to watch a heart stop under hands trained to be steady up to the last beat. We don’t know what it’s like to work 24 hour shifts, sacrificing precious time with loved ones to spend time, not with patients, but with electronic medical records. We don’t know what it’s like to try to figure out what’s hurting someone whose addiction to pain pills makes him a liar. It’s my job to tell doctors’ stories, but we have to be willing to listen. 

We patients have much more power than we know. There is so much we can do to heal ourselves, and it goes far beyond quitting smoking and not texting when driving. Diet and exercise save lives. Spending time in nature makes people heal faster. Laughter really may be the best medicine. And according to one of the longest and most complete studies of adult life ever conducted, good relationships are vital to health and happiness. When it comes to your health, how can your relationship with your doctor not matter? And relationships take two people, working hard to understand each other. Empathy must go both ways. Because the things that are killing our doctors are hurting us as well. 

*Minor identifying details of individuals may have been changed

Heather Hansen, Esq, is a trial attorney who is often invited to speak across the world about improving the doctor/patient relationship. She has served as a legal analyst for CNN, Fox News Channel, Fox Business, CBS Radio, and Fox29 Philadelphia. She is currently a legal analyst for Good Day Philadelphia.