Doctors and Litigation: The L Word

Gita Pensa MD
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Doctors and Litigation: The L Word

The majority of physicians will be sued during their career, yet the topic is largely taboo. This podcast for physicians discusses malpractice litigation and litigation stress. Start at the introduction of Season 1, and work your way through; you’ll hear the voices of docs who have been there, and advice from experts including psychologists and attorneys. Theme music by @BenjaminBanger

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  1. EPISODIO 1

    The EMR Audit Trail: Friend and Foe

    In this first episode of Season 2, Dr. Pensa talks with attorney Saira Pasha, an EMR audit trail expert. What else besides the words in your chart does your electronic medical record track? Are 'secure messages' discoverable? (Spoiler: yes, they can be!) How can an audit trail help your case -- or hurt it? How does an audit trail expert 'read between the lines' of who's looking at what entries in the record, and when, and for how long? Take home points:  The EMR creates a trail that tracks not only your substantive words on the chart, but evidence of all the people who were in a given chart, at what time, looking at what, for how many seconds or minutes, what they did next in the chart, whether a template or smart phrase was deployed. It tracks and times views, edits, additions, deletions, changes, and any printing or searches. These are not part of the initial requested 'medical record,' but can be obtained through the request of an EMR audit trail.  The timing of changes to the record can imply that charting was slanted in a way to be defensive or misleading (or at least, a plaintiff’s attorney is going to try to do that, even if your intention was well-meaning.) Attorneys may infer the importance of a part of the record by seeing how many people were in a chart at a given time, and what they were all looking at, for how long. This information can act like a big red arrow pointing at a specific medication order or radiology result, for example, even if there is no explicit mention of it in anyone's notes.  Secure messages, FYI's, Best Practice Advisories, and other prompts are all discoverable (with a little sleuthing) as part of an EMR audit within a few years of their appearance in the chart.  If you cosign notes using a template that suggests you did a substantive review of another clinician's care (such as an APP or midwife), be mindful of the fact that the EMR tracks how long you spent in that note, or reviewing that patient's chart or imaging.  Dr. Pensa references this 2021 case in which efforts to alter EMR records were exposed.  More about Dr. Pensa and how to contact her can be found at doctorsandlitigation.com.

    30 min

  2. EPISODIO 2

    Help Resistance

    This month, we're exploring the topic of 'help-resistance' in physicians. Why do we acknowledge the need to maintain and optimize the health of our bodies, but scoff at doing the same for our minds or mental well-being? Why do support programs flounder from lack of participation? Why is the notion of even 'self-help' so foreign and...icky? In this 'listicast', Dr. Pensa explores the top ten(ish) reasons for help-resistance in physicians. This has practical implications as to why physicians often do not access support programs, and why they may resist external or even self-help instruction.  These concepts are each briefly explored, with particular focus on the physician experience (though, of course, other clinicians and high achieving professionals may have similar experiences.) Ten Reasons Behind 'Help-Resistance' in the Physician 1) Internal core beliefs and identity of the physician (and traits including exceptionalism and perfectionism) 2) External collective beliefs and medical culture  3) Inability to recognize when help is indicated (or avoidance coping) 4) Lack of awareness of various modalities of 'help' (what does 'help' even mean?) 5) Family of origin (or culture of origin) taboos; expectations of the family high achiever 6) Absent help infrastructure (or a hush-hush help infrastructure) 7) Terminal uniqueness 8) Fear (of discovery, judgment, licensure/discipline threats)* 9) Friction 10) Change resistance and inflexible thinking (or dichotomous thinking)   *To learn more about Dr. Lorna Breen, the Dr. Lorna Breen Heroes Foundation, and their work addressing the origins of this fear, go to https://drlornabreen.org/ More about Dr. Pensa: https://doctorsandlitigation.com/about-gita-pensa Disclaimer: Dr. Pensa is not a therapist or psychiatrist, and this discussion is not meant as treatment for any specific mental health disorder. This list is based on Dr. Pensa's personal and professional experience, and her coaching work with other physicians in the realm of litigation stress and burnout.

    27 min

  3. EPISODIO 3

    Medical Board Complaints and Investigations

    Medical Boards (or state Departments of Licensure and Discipline) are charged with keeping the public safe from unskilled, impaired, or unscrupulous doctors (or other licensed clinicians, each of which has their own board). While this is an important and necessary role, it is also not uncommon for well-meaning or "innocent" doctors to become the subject of investigations due to complaints from patients, other doctors (including competitors), or from the Board itself. Malpractice litigation or adverse event reporting may also trigger Board investigations as well. This process is usually opaque, and clinicians have a poor understanding of how their Board works, who is on it, how those people are appointed, who they answer to, what happens when complaints are investigated, the possible ramifications of board decisions, and how to best prepare themselves in the case of a complaint. A naive physician can unwittingly worsen their situation, and an attorney is usually recommended to help in navigating the process. Depending on the complaint, your malpractice policy may help defray the cost of this. Important points to note: processes for Boards differ from state to state. Typically anyone can lodge a complaint against a physician with the Board, for nearly any reason, and every complaint needs to be addressed in some way. These complaints can be anonymous in some states, and can range from serious to trivial. There is generally no statute of limitations for these complaints. Consider this podcast an invitation to learn more details about your state's medical board and their processes.  Board investigations and evaluations have been linked to physician suicide, and Dr. Pensa cites a study from 2014 in which nearly 5% of physicians referred to the Tennessee medical board for fitness-for-duty evaluations either seriously attempted or completed suicide. She also mentions a John Oliver 'Last Week Tonight' episode about state medical boards that paints a bleak picture of state medical boards' ability to root out dangerous doctors. The job of the medical board is indeed a difficult one, and Dr. Pensa makes the case for more transparency, accountability, and feedback mechanisms given their power and the wide-reaching impact of their decisions. Changes would need to be made at a legislative level, as the Board is typically a governmental/political organization. Dr. Gita Pensa gives an introduction to Medical Board investigations and complaints in this episode with Guillermo Beades, Esq. Mr. Beades teaches and publishes regularly in an effort to educate physicians and other clinicians about healthcare law.  You can find an article of his about this topic here in Medical Economics.  Guillermo J. Beades, Esq., is a Partner in Frier Levitt’s Healthcare Litigation Department and Co-Chairs the Firm’s Insurance Defense Group. He represents healthcare professionals in a broad range of administrative, civil and criminal healthcare matters. Mr. Beades has extensive litigation experience before state licensing authorities and Medical Boards (e.g., NJ BME, OPMC), federal healthcare agencies (e.g., OIG, CMS, DEA) and state healthcare agencies (e.g., NJ Medicaid Fraud Division, NY OMIG). He represents practices and healthcare professionals in matters concerning credentialing and denial of privileges, administrative discipline, Medicare audits, hospital fair hearings, post-payment demands and pre-payment audits.

    48 min

  4. EPISODIO 4

    Mindfulness in Litigation

    There is a wealth of research to support a positive effect of mindfulness on the mental health and overall well being of physicians and other clinicians. This is well documented in spheres like burnout, job satisfaction, and overall well being (sample references below). Today on the podcast we introduce mindfulness as a cognitive tool that can be useful in litigation preparation as well. Today's guest, Douglas Morgan, is a seasoned medical malpractice defense attorney who incorporates the teaching of mindfulness into his work with clinician defendants.  Resources mentioned: Apps: JKZ, Plum Village, Headspace, Ten Percent Happier and Insight Timer (Dr. Pensa and Attorney Morgan have no financial ties) Mindfulness Based Stress Reduction and the work of Jon Kabat-Zinn Teachings of Thich Nhat Hanh References: JAMA Internal Medicine. (2019). Effect of a Mindfulness-Based Intervention on Burnout Among Physicians: A Randomized Clinical Trial.  The Lancet. (2020). Mindfulness in Health Care Workers: Benefits Beyond Burnout.  Journal of Occupational Health Psychology. (2017). Mindfulness-Based Stress Reduction for Medical Students and Physicians: A Systematic Review.  Annals of Internal Medicine. (2014). Mindfulness-Based Stress Reduction for Health Care Providers: A Systematic Review.

    38 min

  5. EPISODIO 5

    'Nuclear' Verdicts

    The phrase "nuclear verdict" strikes fear into the heart of any defendant - and today we're going to tackle it head on. We welcome Dusty Otwell, JD, medical malpractice defense attorney and Chief Risk Officer of UCACS, to the podcast to discuss “nuclear," "runaway jury," or aberration verdicts. These are jury awards to the plaintiff, given at trial, that well exceed predictions. They tend to make headlines, create fear among doctors and other providers, and lead other parties to dream of giant jackpots. In this episode we discuss: Societal trends that may be fostering the increase in aberration verdicts How we can mitigate our fear around the possibility of an aberration verdict What happens after an aberration verdict: post-trial negotiations, and real-sizing the risk to your personal assets Why defendants should feel empowered to speak up, request preparation, and ask for 'financial risk estimates' The ‘reptile theory’ deployed at trial by plaintiff’s attorneys, and how tapping into the general anger in society fuels their persuasion Why and how defense teams need to evolve to combat these tactics  Now, more than ever, preparation of the defendant should be paramount and start EARLY in the case. More about host Gita Pensa, MD, can be found at https://doctorsandlitigation.com/ Dusty Otwell is vice president for claims and risk management at US Acute Care Solutions. He also serves as Chief Operating Officer and Corporate Secretary for Clinician Assurance Risk Retention Group, the self-insurance carrier for USACS. Previously, he was associate general counsel and director of risk management for Emergency Service Partners, a founding partner of USACS; a senior risk management consultant for ProAssurance Corporation, staff attorney for Maynard, Cooper & Gale, P.C., and staff counsel for Medical Reimbursements of America, LLC.

    32 min

  6. EPISODIO 6

    A World of Hurt

    "A World of Hurt: How Medical Malpractice Fails Everyone" is a new documentary produced by Emmy-nominated physician-filmmaker Dr. Mark Brady and two medical students, Alex Homer and Viknesh Kasthuri. After a year of private screenings and film festivals, this powerful piece was recently picked up by PBS after winning multiple awards. It is now free to watch online (links below).  In under 27 minutes, this short documentary tells three stories: a plaintiff whose sister dies after a medical error; a physician whose life is decimated by a malpractice allegation; and a couple whose baby dies in the hospital, but seeks a non-traditional route for closure.  Dr. Pensa, who appears in the film, turns the tables and interviews the filmmakers in today's podcast. They discuss what it was like making the film during COVID, the difficulty of getting subjects to agree to filming, and how they hope this piece can be an agent for conversation and change.  Please watch the film and share widely. It is short, but powerful. Watch now: PBS: https://watch.ripbs.org/video/a-world-of-hurt-how-medical-malpractice-fails-everyone-uklpuo/ YouTube: https://www.youtube.com/watch?v=09IVcL6pACU You can find Dr. Pensa at doctorsandlitigation.com

    26 min

  7. EPISODIO 7

    Strategic Communication in Litigation

    In this episode, Dr. Pensa discusses 'strategic communication' in litigation with expert Matt Abrahams. Matt teaches strategic communication at Stanford Graduate School of Business and hosts the podcast, "Think Fast, Talk Smart." He's also the author of the books "Think Faster, Talk Smarter" and "Speaking Out Without Freaking Out: 50 Techniques for Confident, Calm and Competent Presenting." We talk about the importance of communicating strategically in any setting, including the artificial settings of deposition and trial. We discuss, among other things, anxiety management, the importance of preparation and structure, and communicating with empathy, clarity, and brevity. More about Dr. Pensa and how to contact her: https://doctorsandlitigation.com/

    34 min

  8. EPISODIO 8

    The All-Important Jury

    Physicians and other clinician defendants whose cases go to trial (roughly 8-10% of malpractice cases) usually have little understanding of the legal events and strategies involved, which naturally amplifies their anxiety. Today on the podcast, we'll continue to address these knowledge deficits.  Decisions made about how cases proceed are usually made by considering how the 'optics' of a given case will look to a hypothetical jury -- but when trial begins, at jury selection and the voir dire, that once-hypothetical jury will be come real flesh and blood laypeople, who have their own ideas, perspectives, biases, likes and dislikes. And they will decide how this long legal saga ends and which side prevails (barring any appeals, which unfortunately Dr. Pensa is very familiar with.)  In this podcast, we talk to Shari Belitz, Esq., a trial and jury consultant, about the importance of jury selection and the strategies involved. Ms. Belitz is the CEO and Owner of Shari Belitz Communications. She is a seasoned attorney who then trained in forensic psychology before launching her career as a trial consultant and strategist.  We talk about why the jury is all-important in case outcomes, the strategies attorneys can deploy during the voir dire to try to select jurors who may be more inclined to side with their case, how attorneys can expose bias and strike jurors for cause, and the utility of mock juries and focus groups.  If you haven't listened to the Season One episode on Trial and Settlement, start there first.  You can learn more about host Dr. Pensa here.

    42 min
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The majority of physicians will be sued during their career, yet the topic is largely taboo. This podcast for physicians discusses malpractice litigation and litigation stress. Start at the introduction of Season 1, and work your way through; you’ll hear the voices of docs who have been there, and advice from experts including psychologists and attorneys. Theme music by @BenjaminBanger

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