A medical malpractice process is a lot like running a marathon.
The analogy makes it easy to understand why physicians are emotionally unready to go through years of litigation and often find themselves struggling.
To successfully make it through the grueling 26.2 miles, a runner has to be well-prepared.
It’s common for runners to join a running group. Sometimes, engage a coach who can help to train smart.
Runners will spend months building up their stamina. They’ll learn about the course and the climate. They’ll enter the race hydrated, nourished, rested, and hopefully, injury-free. They’ll have their pre- and post-race nutrition plans down.
Prepared runners will have tested out their gear, hoping to prevent blisters and chaffing … down to finding the best moisture-wicking socks.
As runners prepare for the race, they’ve had time, opportunities, and resources to learn how to manage their minds.
They’ll know what will help if and when they hit a wall or encounter the unexpected.
All that training. All those resources. To run a marathon.
Now, I’m not trying to minimize the importance of the endeavor. But it’s an elective activity chosen to boost health and fitness and push physical and mental stamina limits.
A medical malpractice process, however, is not a choice. It is a forced challenge, inextricably tied to the journey of being a physician. According to statistics, 88 percent of all physicians in high or low-risk specialties will be sued by 65.
Despite the staggering stats, resources available to physicians going through litigation are not abundant and are certainly not mainstream.
Frequently, doctors will begin the lengthy process with little to no training or support. And the isolating journey will continue.
Unlike marathoners, physicians won’t have the camaraderie of a “running club.” And while lawsuits are prevalent, being involved in litigation is still a “hush-hush” topic. Many hesitate to open that pandora’s box.
As I draw an analogy between a marathon and the litigation process, I envision a physician schlepping along the path, out of breath, unable to keep a conversational pace.
I picture the defense attorneys and the insurance representatives cheering at the finish line. Crossing their fingers that the preparation provided by the defense counsel was sufficient to help the physician finish strong.
Like in any race, some physicians will drop out. Lacking the resources to handle the emotional toll. That’s one reason why defensible cases get settled.
Other physicians will cross the finish line. The case will settle or go to jury verdict.
Is it over? Maybe. Unless the case is appealed, resulting in a new trial. I bet you know at least one physician whose lawsuit lasted a decade. I know a few.
Like an unprepared runner, physicians who are ill-equipped to handle the toll of litigation will end the journey feeling miserable.
They’ll have to deal with the expectation of a quick recovery from the residual emotions. An expectation that they continue practicing medicine, bright-eyed and bushy-tailed.
The contrast between the resources and support available to runners versus doctors is quite stark.
In a malpractice race, there is a defense attorney and an insurance representative. They’re incredible resources in strategizing and gaining a bird’s-eye view of the process.
They’ll help the doctor to “get through” the process. But for most physicians, the experience will feel like nothing more than “survival.”
Is a physician “surviving” litigation the best we can do?
We’ve all heard stories about how the litigation process is a crushing experience, permeating every fiber of a physician’s life.
How different would a physician’s experience be if even a quarter of the resources available to runners were available to doctors? Sans the moisture-wicking socks … although on second thought, they may come in handy in deposition or trial.
Most defense attorneys spend about two to five hours with a physician from the onset of the process until it’s time to prepare for the deposition, which can be a year into the process. Half of that time is spent on substantive case issues, not on education or support.
What if physicians had access to more consistent and focused guidance through the ebbs and flows of the process?
What if doctors received a deeper level of education before the process was even on the horizon? We can’t possibly believe that a one-to-2.5-hour crash course on the legal process while physicians are in their most vulnerable state is sufficient.
What if doctors really understood the prevalence of lawsuits, and stopped attaching meaning to being sued, which felt so crushing?
What if physicians understood that a medical malpractice process is no different than a game?
A game they’d unknowingly signed up for when making a decision to become a doctor. On average, a game takes up almost 11 percent of a physician’s career.
A game that can be learned and mastered.
How much better would doctors perform in litigation? In the ability to care for their other patients while navigating a medical malpractice claim?
Can you imagine?
I can. The difference between a physician who feels lost and isolated, merely surviving, and one who feels prepared and supported.
One who is armed with the tools to achieve the best possible outcome. Not only in the lawsuit but in the mental preparedness to remain balanced in other aspects of their life, a life which does not stop when a lawsuit happens.
Let’s reimagine the future of the litigation process, where the latter is not only possible but is expected.
Let’s redefine the process. Let’s flip the script on the med mal game.
Christine Zharova is an attorney.
Image credit: Canva