The Cost of Making Mistakes: The Threat of Litigation

The majority of participants in this study believed that time pressure and pace of work were linked to increasing the potential of making mistakes. The possible consequences of making a mistake were undesirable, potentially fatal, outcomes for the patient and

malpractice litigation for the doctor. GPs who have been sued know that the expense of litigation has a personal impact that lingers long after the court case has been closed (Mackee, 2006).

According to Tallis (2004), in response to a more litigious society, medicine in the future will be increasingly defensive. The medical maxim of first, do no harm will be replaced by first, ensure you have covered yourself, and then be concerned about harm.

Kim explained how perceived time pressure added to the risk of making a mistake and the ensuing fear of litigation. She implemented several strategies in order to minimise

the possibility of making mistakes and exposure to litigation, but this added to her already time pressured hours at work. She explained:

The main stress (in general practice) is fear of litigation, you think about it once or twice every day because you are constantly covering your tracks, not trying to hide things, but you are constantly justifying things. So you write down things that would indicate that you have considered a possibility in case later on it turns out they did have that and you haven’t considered it, so you write everything down and you double check, if someone doesn’t come back for their appointment you check should they’ve come back, you write a note on their file and say, contacted her twice, didn’t come, you know, constantly cross checking and double checking and it’s very time consuming and soul destroying sometimes.

Kim attempted to “cover” all possible avenues to avoid litigation by keeping meticulous records, trying to decrease the risk, and reduce the uncertainty of her work. She considered that the necessity to engage in defensive practices affected how she worked, and her relationship with her patients was also more defensive than in the past. Kim believed in the clinical benefits of early detection of disease and tried not to “over- investigate” with unnecessary tests and procedures as a way of managing her fears of “missing something” and the possibility of litigation.

The perceived threat of litigation can be interpreted as a symbolic threat to the

existence of the GP. Litigation publicly displays personal inadequacy and failure. Gerrity, Earp, DeVellis & Light (1992) observed that studies of medical students, doctors in residency training, and doctors in practice, revealed fear of personal inadequacy and failure. The impact of litigation on one participant clearly illustrates this concern, and the way it potentially influences future practice.

Elizabeth was sued by a patient she had been seeing for five years, and who had consulted her 78 times. Although Elizabeth wanted her Medical Defence Organisation (MDO) to settle, they wanted to contest the claim. By medico-legal standards the MDO considered her case impeccable. They chose to contest the claim because litigation was

getting out of control; hers was a case they could win. Elizabeth took being sued very personally, and still felt “victimised” by the experience. She recalled:

I was just not coping, five years of solicitors’ letters and I was never free of it, the shame of it was huge. I should have been proud. I did everything right, but I felt ashamed because I was being sued. The case cost well over a million dollars to run and the patient was awarded $12,000. I felt that I had lost the case, the lawyers saw it that I’d still won because they settled for a small amount of money.

Elizabeth considered that the medical profession had “let her down”. Her male business partners did not offer her any instrumental or emotional support; but looked on with what Elizabeth considered was a “morbid fascination”. The shame she felt prevented her from speaking with friends and peers about her experience; she did not seek help from a professional, so she “struggled alone”. Elizabeth found little consolation in the fact that the litigant was vexatious, and this was her eleventh claim. She believed the patient and her lawyer brother were driven by avarice in making the claim, rather than her clinical competence.

Six years later, the experience remained an upsetting memory, and talking about it still caused Elizabeth to feel very emotional. She considered the episode to have been a “huge sadness” in her life that caused her to consider leaving the profession. As a

consequence of the claim, Elizabeth now practised defensive medicine in order to try and protect herself. She referred her patients to specialists more often, and ordered more diagnostic investigations. She was saddened by the negative effect the process had on the doctor-patient relationship she valued with her patients. Elizabeth believed she now approached every patient as a potential litigant, and was not as compassionate with her patients.

The following case study provides an elaboration of the key themes presented in this chapter. It also illustrates the dynamic interplay between work and non-work/family domains.