Two orthopaedic surgeons who have navigated their own rugged seas offer help to others

“I can distinctly remember the sheriff’s deputy walking into my office and serving me with papers. I had no idea what it meant at the time,” says Glen Shapiro, MD. “I had nearly 10 years in practice and I had never been sued before. It was a huge shock.”

“A charge of negligence strikes at the core of a physician’s self image, self esteem, and beliefs about the value of one’s life’s work,” according to Louise B. Andrew, MD, JD, an emergency physician who is a consultant and counselor in litigation stress and risk management. “Adding insult to injury, a legal claim forces us to defend ourselves in a system in which we have little to no control, processes are painfully slow, and results may bear little relation to our efforts, yet can potentially have a permanent impact on our ability to practice medicine.”

The first reaction is emotional
“If you are sued, do expect to react emotionally,” Dr. Andrew says. “You will be angry, hurt, disappointed, and disillusioned. You will feel isolated, frustrated, and unjustly singled out, and may question your clinical competence. You may also feel guilty, even if your performance was faultless.”

Other emotional reactions include depression, shock, denial, anxiety, and shame. Physical reactions can include fatigue, difficulties concentrating, insomnia, and the onset or recurrence of ulcer symptoms, chest pain, or free floating anxiety.

“Because physicians are often reluctant to share feelings with others or to seek help for themselves, they often attempt to ignore them and work harder at being perfect,” Dr. Andrew explains. “We would never recommend this strategy to a patient undergoing major stress, but our own lack of objectivity compromises our judgment when it happens to us.”

When John D. Kelly IV, MD, first faced a jury, he felt an “overwhelming” sense of humiliation. “I felt like the jury saw me as Charles Manson,” he says. But he also recognized the need to take positive steps.

“The first thing you want to do when you get sued is to withdraw. But you have to admit there is a problem. You have been sued. You have to take action and you have to get help. You can’t do this alone,” he says. “While I was going through the lawsuit, my grandmother and my dad died. It was an extremely tough time and I reached out, saw a counselor, and took some meds so I could sleep again.”

Advice for coping
Dr. Kelly also turned to his faith and his family. He encourages his colleagues to confide in their spouses or significant others during this difficult time. Most importantly, he says, “don’t isolate yourself.” He offers himself as a resource to fellow orthopaedic surgeons who are going through medical liability lawsuits.

“When someone calls me and says, ‘I’ve been sued,’ I have so much empathy. I understand at least a part of what that doc is going through and I share what has helped me,” he says.

Dr. Shapiro, who had contacted the AAOS for assistance, was referred to Dr. Kelly. “Speaking with John was tremendously helpful,” according to Dr. Shapiro. “It was great to talk to someone who had been through this. John is such a positive guy. I felt so much better after we spoke.”

Dr. Kelly also drew strength from the conversations. “I felt a sense of kinship and was happy to share what I had learned. I told him that I was sure that he was a great doctor and to stay close to his spouse and his family. We need to affirm each other as good doctors and not look at our patients as adversaries,” he says.

Dr. Andrew agrees that talking to colleagues who have been sued is very important. “Physicians tend to be perfectionists who don’t readily admit to personal shortcomings, nor to tolerate them in their peers. That’s one reason physicians feel so isolated during litigation.”

She strongly advises telling a spouse or significant other that you have been sued and to ask for your family’s support and understanding during this long and difficult process. Speaking with a counselor may be necessary and even life-saving in some cases. But sometimes, all that is needed is reassurance from someone else who has survived the experience.

Peer counseling through the AAOS
Drs. Kelly and Shapiro want other AAOS fellows to know about the “peer-counseling network” for AAOS members who are being sued for malpractice. They invite any member of the Academy who is going through a suit and wants to talk to someone to contact them by e-mail.

As peer counselors, they cannot offer legal or professional advice, but will share their personal experiences and provide support. Conversations are confidential, can be anonymous, and would only involve the nonlegal, nonprivileged aspects of the case.

John-Henry Pfifferling, PhD, director of Center for Professional Well-Being, believes that peer counseling is a valuable tool for physicians undergoing “litigation stress.”

“Attorneys tell their clients ‘Don’t talk to anyone.’ What they should say is, ‘Don’t talk to anyone about the specifics of the case with these exceptions. But do share your experiences or feelings with the right people.’

“Physicians perceive the actual suit as an assault on their own integrity,” he continues. “The more isolated the person is, the more problems that person will have. The person who gets involved in a social, collegial relationship will have fewer problems and will be better equipped to handle whatever happens.”

Additional resources
To help physicians get through a medical malpractice lawsuit, Dr. Andrew has developed a Web site (http://www.mdmentor.com). Additional information on what to do can be found on the American College of Emergency Physicians’ Web site (http://www.acep.org).

The following are a few of Dr. Andrew’s recommendations:

Participate actively in your own defense. “Lawyers understand the courtroom and understand legal case management, but don’t necessarily understand the medicine involved or the particular circumstances that led to the claim. This is true of your defense lawyer, as well as the plaintiff’s lawyer,” she says. “Use your expertise to educate your lawyer about every possible medical angle.”

Prepare for either outcome. “Picture what you will do if the verdict is against you. Plan to tell certain people about the verdict and how it makes you feel,” advises Dr. Andrew. “You should also visualize what you will do if you are found not guilty. How will you act toward the patient or the patient’s family if they should come to you again for care?”

Learn from the experience. Dr. Andrew advises honing your communication skills during the duration of a lawsuit. “Studies show that many malpractice cases are related to communication issues. Make the effort to change the policies, professional environment, or circumstances that contributed to initiation of the suit.”

Educate your patients about the importance of taking responsibility for their own health. Make sure your patients understand that no procedure or outcome is guaranteed and that everyone’s body is different.

Dr. Pfifferling has one more piece of advice for every medical organization and every member of that organization. “Teach the public that a good physician can only do what an educated, earnest, yet fallible human being can do at the moment. Physicians are not perfect nor is anyone else. They are good people who are doing the best they can.

Annie Hayashi is a senior science writer for AAOS Now. She can be reached at hayashi@aaos.org.

Contacting a peer counselor
The Academy’s peer counselors are available to speak to any member or fellow of the AAOS on a completely confidential or even anonymous basis. All have received training as peer counselors; many understand the experience of litigation stress. Contact information is provided for the following members of the AAOS “peer-counseling network:”

• John D. Kelly IV, MD, at (856)985-0851 or johndkellyiv@aol.com
• Glen Shapiro, MD, at (208)324-1122 ext. 3331 or skimd123@yahoo.com
• Frank Kelly, MD, at (478) 743-3000 or fkelly@forsythstreetortho.com
• Patrick M. J. Hutton, MD, MBA, at (904)276-5776 or phutton@bellsouth.net
• Alan S. Routman, MD, at (954)776-4707 or bad1bone@bellsouth.net
• Brian J. Galinat, MD, at (302)633-3557 or BGalinat@christianacare.org
• Dwight W. Burney, MD, at (505)724-4344 or Burneydw@nmortho.net
• Charles Classen, MD, at (252)522-2372 or orthoclassen@earthlink.net
• Stephen S. Hurst, MD, at (650)342-0854 or sshurst@earthlink.net

The impact of “litigation stress”
“Litigation stress” is common to those who are undergoing protracted malpractice lawsuits, according to John-Henry Pfifferling, PhD, director of Center for Professional Well-Being. Litigation stress can have a profound effect on a physician’s practice, particularly in the following areas:

• The physician may pay even greater attention to details—or become apathetic. A physician may awake in the middle of the night to double check a particular detail from the cases, or become depressed and apathetic, assuming that the attorneys are taking care of everything.
• Major cognitive changes occur during and after the lawsuit. During the course of the lawsuit, the physician’s thought process is divided between the medical practice and the impending legal matter. Following the suit, most people experience about a year of grieving, which produces cognitive changes such as more distraction and less acute thinking.
• The patient can become the enemy or the adversary. This results in a profound conflict for most physicians, who perceive themselves as “healers.” How can someone who heals harbor a hatred toward patients? The image of self as the caregiver is in direct conflict with very strong feelings of the patient as the enemy.
• The doctor is now aware of being on the “radar screen.” With a lawsuit on his or her record, a physician may wonder, “Who will be checking me out? The state medical board? Will I be listed on a malpractice database? Will they send out investigators? Will my premiums go up?” Although no data supports a correlation between those who have been sued for malpractice and actual medical incompetence, according to Dr. Pfifferling, that myth continues to persist.
• The doctor does not want to see patients who are perceived as “suit provokers.” Once a physician is sued, he or she may become more concerned about seeing “higher risk” patients who may have less-than-optimal results.