Nothing creates more intense emotion for physicians than going to trial in a medical malpractice lawsuit. As my own trial approached and during my time in the courtroom, my feelings shifted like the weather. Fear, anger, self-doubt, shame and anxiety, moments of clarity, calm, certainty, and relief: all waxed and waned as events unfolded. In my last post, “The 8 Stages of a Medical Malpractice Trial,” we talked about basic mechanics. Now let’s dive into managing the emotions physicians often experience in relation to trial. The way you manage your emotions as you navigate a medical malpractice trial will not only impact upon you at a personal level; your emotional self-management can affect the tone and outcome of the trial itself. Today we’ll take a look at two of the tougher emotions physicians face in relation to a malpractice trial, fear and anger.
Fear
I’ve explored the subject of fear more than once in this blog (HERE and HERE, for example). I even discuss it in my CME course for those facing a lawsuit.
I explore fear repeatedly for very important reasons. Not only is it one of the most universal and distressing aspects of the experience of litigation, fear can paralyze us, making it hard to think clearly. And it sometimes prompts good people to do things they otherwise wouldn’t, like lie under oath.
I see 3 obvious roots to this fear:
Fear of the unfamiliar
As physicians, we’re accustomed to confronting challenges by mastering information. For most of us, however, a med mal lawsuit is an unfamiliar process involving countless rules and procedures we don’t fully understand.
Fear of the future
Recognizing that the trial’s outcome is not entirely in our control, we worry what impact it may have on our professional future and reputation in the community.
Fear of attack
The thought of coming under attack at trial is often scary.
All of these fears, while uncomfortable, are a perfectly normal response to a less-than-normal circumstance. For now, I want to help you effectively apply the finer parts of your mind to climbing the mountain that lies ahead, knowing that in time, this will allow the fears to pass.
What can you do when fear rears its head? Start by naming it. Rather than disowning it, call it what it is.
Do you sense your heart pounding, your belly churning, or your chest feeling tense? Take a slow deep breath and say to yourself in the kindest way possible, “I seem to be feeling afraid. That’s okay. It’s to be expected right now.”
Then ask, “Is there anything I can do to directly address the external cause of this fear in this moment?” After all, that’s what the most ancient parts of your brain -- including the amygdala -- are asking your cortex to consider.
Maybe the answer is yes: “I think I’ll schedule my prep session with my lawyer,” or “One more pass through my deposition transcript and an early bedtime.”
Maybe the answer is no: “There’s nothing for me to do now but slow down, breathe, and stretch,” or, “A rousing game of fetch with the dog and a nice hot shower will help.”
Try not to let yourself hover over the fear forever. See if you can address it and set it down. If it keeps popping up, you might even try what I do -- put your hand on your own cheek, like a loving adult reassuring a beloved child, and say to yourself, “Sweetheart, you don’t have to do that right now.” Once you’ve found that one thing you can do, try to be like Elsa and “let it go.”
Thank your amygdala for its concern and move on.
Rinse and repeat.
Anger
There are many legitimate reasons to feel angry at trial. The plaintiff may present a very different picture of events than you recall. Plaintiff’s experts, some perhaps unscrupulous, are certain to claim that you missed the mark. And to be honest, the plaintiff’s attorney may behave in ways that you perceive as rude, cunning, disrespectful, or dishonorable — ways that would not feel professional in your world and mine.
None of those reasons change the fact that if you express that anger at the wrong time or in the wrong place in the midst of trial, it can easily backfire on you and the outcome of your case.
Please remember that all of those reasons for feeling angry are not you. Yes, the plaintiff’s attorney may be throwing lots of mud, and yes, you may be feeling like it’s all over you. Still, it’s important that you remember that all of that is not you. You are not them. And you are certainly not the mud.
Your most important job at trial -- for your sake and for that of the lawsuit -- is to bring your highest version of yourself. In the courtroom, in fact any place where you might cross paths with a juror, the judge, or random strangers (the cafe near the courthouse, the bathroom, the park across the street where you walk at lunch break), it is essential that you remain connected to the compassionate, attentive, courteous, diligent, honest, intelligent, and responsible self that led you into medicine to begin with. If you feel the need to vent at the end of the day, do so with your lawyer or someone like your spouse behind closed doors.
For the three weeks of my own trial, I ended every day with a slow cup of green tea in a conference room at my lawyers’ office overlooking the vast expanse of Lake Erie. You can do something similar.
Laughter, meditation or prayer, writing, reading poetry or spiritual texts, making or listening to music, funny movies, running, yoga, a hot bath, dark chocolate, a hug from your kids, a cuddle with your cat — any of that will do you good! Keep yourself in best form by very deliberately tapping into activities that help you “warm up” and “cool down” at the beginning and end of the day.
Otherwise, from the time you leave your house in the morning until you return there at night, it is essential that you channel the most professional physician you have ever known. Try bringing an inspiring mentor or a highly respected friend to mind and imagine them there with you, giving you endless words of encouragement, love, and advice.
Be unfailingly courteous, honest in word and clean in deed. The jury will feel better about you and so will you.
Going to trial is generally very difficult for physicians and other healers, but it is surviveable. My hope is not so much that you “win,” but that you come through your medical malpractice lawsuit with your integrity intact. That is, in my view, the real WIN, the one which will open the door to your recovering in every way.
Join me next time for further discussion of managing some of the harder emotions that emerge at trial.