On a recent shift, I arrived to find our emergency department full and our waiting room overflowing with suffering patients. Half of our ER beds were occupied by “boarders”—patients who were ill enough to require hospital admission, but with no inpatient bed available for them in our hospital, or at any other in the state. These boarding patients included a seriously ill infant with respiratory distress from RSV, a moribund elderly woman on a ventilator, and a teenaged boy who had been held under security watch in the ER for three straight days, waiting for transfer to a psychiatric bed. In the hour after I arrived, I attended to four new critically ill patients who joined the ranks of our ER boarders, having no ICU able to receive them. The minute-to-minute bedside care they would require from us indefinitely meant even less attention for the other sick patients.
A seasoned nurse whispered to me in a moment of overwhelm, “I can’t do this anymore. This isn’t worth my license.” And I thought grimly, and not for the first time: this is a dangerous situation. For our patients, and for us.
As a physician who coaches other doctors through the stress of malpractice litigation, I am keenly aware of a truth that has gone unspoken in public discussions about why healthcare workers are quitting.
What has been published so far is very true: We are burned out and overwhelmed. Violence against healthcare workers is a regular occurrence. We are worn down by the daily roadblocks set up by intransigent health insurers, error-promoting electronic health records, and C-suite executives with little understanding of the boots-on-the-ground perspective. We have been working through COVID-19 and staffing shortages, in systems that are crumbling around us. And when there is an outcome that causes suffering and grief for patients and their families, we are not only crushed by these failures, but also become the faces of them.
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Malpractice litigation is a thorny topic to discuss openly. Even among doctors, though litigation is exceedingly common, it carries an air of shame and secrecy. Personal experiences in litigation are rarely discussed. Many physicians have no understanding of how litigation actually works. But malpractice litigation happens to many good doctors. For example, one survey showed that over 80% of currently practicing OB-GYN physicians and general surgeons have been sued at least once.
For many, the initiation of a lawsuit or disciplinary investigation is nearly as significant as the outcome. The formal accusation of malpractice, whether or not any occurred, marks the beginning of a long cycle of shame and psychological distress for the clinician who has dedicated their life to their profession and genuinely cares about the outcomes of their patients. The opportunity to talk to the patient or their family—to heal, to explain, to listen, to soften—is lost; lawyers now attack or defend in our stead. Adding to the distress of a serious adverse outcome for their patient is now the fear of personal assets at risk, the potential loss of licensure or livelihood, and the stigma of the lasting public record of the lawsuit; worry runs rampant, as does the shame of being judged incompetent by patients and peers alike. This fear is generally left unspoken by clinicians who are admonished by their lawyers and insurers not to talk about it, but is highly leveraged during the legal process by opposing counsel, who are well versed in the psychological distress that litigation creates in the defendant. They know that a highly stressed physician is more likely to make a mistake in deposition, to push for a settlement just to end their ordeal, or appear poorly on the stand as a witness at trial.
Serious medical mistakes do occur, of course, and the risk increases as our healthcare system frays. In no way should the discussion of the impact of litigation on healthcare workers diminish the suffering of patients or their families when error occurs. Historically, however, many filed malpractice lawsuits have not involved true error. The majority of filed lawsuits end in non-payment, and when cases proceed to trial, physicians prevail over 85% of the time. Yet it is important to recognize that whether or not an error occurred, and regardless of the ultimate outcome of a case, malpractice litigation stress is a chief driver of burnout, substance use, divorce, and mental health crises among clinicians.
Physicians as a group have a remarkably higher rate of suicide than the general population, and one 2011 study of over 7,000 U.S. surgeons found that recent malpractice suits were “strongly related to burnout, depression, and recent thoughts of suicide.” Another 2020 JAMA study demonstrated that “civil legal problems were a significant risk factor for suicide among health care professionals.” For a physician whose identity has revolved around being ‘the good doctor’ but now is a defendant, an inner crisis brews which often goes unaddressed.
Medical providers are often minimally supported by their institutions during litigation; the result is a general sense of mistrust between hospital administration and staff. Physicians and nurses are keenly aware of the recent RaDonda Vaught case, in which a nurse was convicted of criminally negligent homicide for a medication error, though flawed hospital-based medication dispensing systems were also contributory. Clinicians often expect to be “thrown under the bus” once the wheels of litigation begin to turn.
Independent of litigation, medical errors themselves are linked to increased suicidality in physicians. We measure our intrinsic worth not by the thousands of times we were right, but the few times we were wrong. And today, our dangerously understaffed conditions are leading to more adverse events—and in a vicious cycle, the impact of those events will drive even more of us away.
All of this has always been part of our jobs, but the more we are tasked with the impossible, and blamed when unable to achieve it, the more keenly aware we are that every malpractice lawsuit needs a face, and that face will soon be ours. What we state openly about the healthcare exodus is true: we are overwhelmed, we are burned out, we cannot help everyone who needs our help. People are dying that would not be dying, if we only had the time and resources to do our jobs as we were trained to.
