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For Your Clients, It’s Very Personal

Aug 23, 2016 | Raleigh, NC
Hagan  alex sm 5

Alex J. Hagan

By Alex J. Hagan

Recently, while attending the DRI Medical Liability and Health Care Law Seminar, a health care provider and presenter asked me why I defended health care providers. The response was simple. It’s personal.

Early in my legal career, I was asked to defend an emergency medicine physician in a malpractice action. The case stemmed from treatment he rendered to a young woman who presented with chest and mus­cle pain after a hard weekend of garden­ing and operating a chainsaw. A mass on a chest x-ray, interpreted by the radiologist as suspicious for cancer, led the physician to the conclusion that the woman may have lung cancer. In the mind of the physician, this finding was unrelated to the woman’s presenting complaint, but clearly signifi­cant enough to require immediate atten­tion. The physician discussed the radiology report with the woman in great detail and encouraged her to seek treatment and fur­ther evaluation. He also offered to arrange a referral.

The woman did not follow the physi­cian’s instructions. Instead, she resumed her normal activities. A few days later, while enjoying a night out with friends, the woman became very ill. She returned to the hospital where she was diagnosed with pneumonia. She spent several weeks in intensive care, during which she required ventilator support.

After recovering, the woman sued the physician for failing to diagnose pneumo­nia. For four weeks, the physician sat in stolid attention at trial, listening as plain­tiff’s counsel and witness after witness questioned and criticized his medical judg­ment. Towards the end of the trial, one of the attorneys representing the plaintiff approached the defense table and said, “I hope your client understands that none of this is personal.” My colleague looked at the attorney and responded: “Oh, but you’re wrong. For this physician, sitting here lis­tening these witnesses criticize his judg­ment, it is very personal.”

Indeed it was. Every day in court, the physician questioned his skill, his judg­ment, and whether he should even continue as a physician. Every evening, before we embarked on any substantive preparation, my colleague and I spent considerable time counseling the physician. The trial ended with a defense verdict, but even a defense verdict may not eliminate the doubt and uncertainty in a physician’s mind. The fact that a patient had been upset with the phy­sician’s care will continue to concern the physician, even after trial. The physician will be shaken by the fact that others in the physician’s field were willing to testify that the standard of care was violated.

I have seen this same pattern and reac­tion repeated in numerous trials. It is per­sonal, and in some cases, it has led very capable and qualified health care provid­ers to reconsider their capacity to continue providing care. Recently, a defendant phy­sician broke down during trial preparation and told me that he and his entire family, including his young children, had internal­ized the lawsuit to such a degree that it had begun to affect their health and relation­ships. Even though he felt confident in his medical care and defense and had a stable of experts to support him, the lawsuit and trial, had eroded his self-confidence.

Several years ago, at a DRI Medi­cal Liability and Health Care Law Semi­nar, another emergency room physician recounted her own personal experience as a defendant, sharing with the audience the emotional trial that paralleled the civil action. She described how she questioned her training and instinct. What reassured her was her defense team. Not only did her counsel have a complete understanding of the medical and legal issues, but they also understood and addressed her emotional struggles. They also arranged for her to have a physician peer to help her through the trial. This emotional support kept her grounded and focused on her defense.

Indeed, it was personal.

With each new case comes the renewed challenge of helping the health care pro­vider process being a defendant, and pro­cess having his or her care questioned not only by others, but by him- or herself as well. The Medical Liability and Health Care Law Committee has recognized the need to educate its members, especially young law­yers, about the effects of a lawsuit. Over the past year, the committee has sought to de­velop programs specifically geared toward educating young lawyers on how to best un­derstand the emotional toil of litigation on a health care provider, and how best to help a defendant work through the self-doubt. Last year, the committee featured a seminar pro­gram for young lawyers on the effects of a lawsuit on a health care provider. The pro­gram was so well received that we will offer a related program next March in Las Vegas that will focus on addressing the psycholog­ical effects of being sued when preparing your client for deposition and trial.

The effort to educate lawyers on the impact of litigation on health care provid­ers fits squarely within the Medical Lia­bility and Health Care Law Committee’s goal to ensure its members are effective advocates and counselors.

*This article originally appeared in the August 2016 Issue of For the Defense.