I am a physician, an attorney, a mediator, and an arbitrator. Those are not just credentials. These are four different positions that provide me with an uncommon perspective into the medical malpractice cases in which I have been involved. What I have observed has led me to a consistent conclusion: The physician defendant is often the least understood person in the room, and that misunderstanding has real consequences for how cases resolve.
Most people view the plaintiff as the center of a medical malpractice case, and that is understandable because his or her emotional state is expected to be overtly presented. Plaintiff’s counsel discusses emotional issues with him or her and makes sure to present these issues in the complaint, in discovery, and through testimony. The physician defendant, on the other hand, is not often given the opportunity to discuss his or her psychological reactions to being sued with counsel let alone present as an emotional witness. Unaddressed, the psychological effects of the lawsuit will show up in the defendant physician’s deposition, at the mediation table, and in front of a jury.
The Manifestation of Symptoms
The first reaction when a physician is served with a lawsuit is almost universally indignation. “How dare they?” “I did my best.” Defense counsel sees this in the first meeting and typically redirects the conversation to the legal standard of care. While that is the correct legal move, it does not address the festering anger, anxiety, depression, and self-doubt.
Alone, late at night, the physician defendant starts to wonder. “Could I have caught this earlier?” “Have I been wrong about my own competence all these years?” That self-doubt is as common as it is consequential, and it is rarely addressed by anyone. I have deposed physician defendants whose performance had nothing to do with the strength of the case and everything to do with unchecked anxiety that had become hardened into unconcealed defensiveness. Fortunately, there are steps to take to avoid this outcome.
The Underlying Causes
License loss is one fear, and it is almost always out of proportion to the actual risk. Under California Business and Professions Code section 801.01, a physician’s malpractice insurer is required to report any settlement over $30,000 and any judgment to the Medical Board. Receiving that report is not discipline. The Board evaluates each report on its own facts, and a single lawsuit that ends in settlement does not automatically constitute grounds for disciplinary action. Physician defendants need to hear this clearly and early, because fear of license loss consumes mental energy that should be directed toward the defense of the case.
Professional reputation is another fear, and it too tends to be overestimated. The physician defendant becomes convinced that colleagues will discover the lawsuit and stop making referrals. The reality is that physicians who are sued rarely tell anyone outside of their legal team. Therefore, most physicians do not know which of their colleagues have been sued, because those colleagues never told them. In most cases, colleagues will never learn of the lawsuit and will continue referring as they always have.
Another significant fear is that the lawsuit has revealed a genuine deficiency. This one cannot be dismissed with statistics. It has to be worked through. A deposition preparation session is not the place to work through it.
Knowledge Is the Cure
The physician defendant who understands the legal standard of care is better positioned at every stage of the case. The standard is not perfection. It is not what the best physician in the world would have done. Under California’s jury instruction, it is the level of skill, knowledge, and care that other reasonably careful practitioners would use in the same or similar circumstances. In plain terms, the standard is average. Most physicians have never been told this, and explaining it clearly changes the frame of reference for everything that follows.
A physician who arrives at mediation having worked through the psychological weight of the litigation, rather than suppressed it, is a physician who can evaluate a resolution on its actual merits. The psychological work that was not done earlier in the case will show up at the mediation table. A mediator with a medical and legal background can speak the language of both rooms, which matters more in these cases than most litigants think to ask about when selecting a neutral.
This is the first in a three-part series. Part two will address the plaintiff in medical malpractice cases. Part three will address the mediator’s role.
Paul J. Molinaro, M.D., Esq. is a mediator and arbitrator with Alternative Resolution Centers specializing in medical malpractice, personal injury, and products liability. He can be reached at pmolinaro@arc4adr.com.