When a Doctor is Sued: Former Defendant Finds Her Voice

On this edition of Safety Net, we’re joined by a very special guest, an emergency medicine doctor who has made it part of her life’s mission to help other physicians manage the stress and upheaval of a medical malpractice lawsuit. Dr. Gita Pensa is an adjunct associate professor of emergency medicine at Brown University. She speaks nationally on the topic of malpractice litigation and litigation stress and is the creator of Open Access Podcast Curriculum, Doctors and Litigation: The L Word. She works as a consultant to medical malpractice insurance companies and defense attorneys, and is also a well-being coach for defendants in litigation. Dr. Pensa is the editor of the Academic Emergency Medicine Journal’s monthly research podcast and a regular contributor to emergency medicine reviews and perspectives.

Q. Dr. Pensa, thank you for joining us.

A.) Thank you, Tom. So good to be here.

Q.) This has become a major part of your professional life. Why is that? What are the stakes? In your mind, what are the stakes for clinicians themselves and also for just the medical community?

A.) Honestly, I feel like the stakes couldn’t be bigger. Right now, every day you probably read stories in the papers about burnout and physicians leaving health care. And there are many, many, many reasons for that. But one thing that we don’t really talk about openly as part of that discussion is what adverse events and litigation do to the physician who already might have an element of burnout. Physician suicide is a problem. And we know not only from research, but also just from physicians’ stories, that litigation plays a role in suicidal ideations in physicians. And there is probably no more seminal event in the career of a physician than a significant lawsuit.

But most of us were never prepared in what it was going to be like for us. The skills necessary to weather it well and to perform well, and our whole societal refusal to talk about it just mires the whole process in shame and it just becomes a really toxic stew for many, many, many people. And so, yeah, I have a really unique perspective, I think. And more and more and more, you’re right, has become a professional focus of mine.

NARRATOR
According to the AMA, more than 60 percent of US physicians report signs of burnout, such as depersonalization or emotional exhaustion. Physicians undergoing medical malpractice litigation are considered in a category more prone to PTSD symptoms related to work.  Dr. Pensa transformed her medical career, in part, to survive the stress of a malpractice litigation against her stemming from an event in 2006. Two juries returned verdicts in her favor. Now she speaks nationally, explaining to audiences the impact on clinicians when they are sued, and what services these defendants really need.

[Law Day Talk]
Hi everybody, thank you so much for that lovely introduction. I am Gita Pensa, and I’m here to talk to you about something that you probably already know a little something about, if you work with medical defendants.

NARRATOR
That was Dr. Pensa addressing a roomful of medmal defense attorneys in Boston in 2022. Dr. Pensa also started a dedicated podcast in 2019 for medical professionals who have been impacted by lawsuits against them. It’s called Doctors and Litigation: The L Word.

[Podcast excerpt]
It was right up against the two-year statute of limitations, when they showed up at my door to serve me. I was in my pajamas.

Often happens at the worst times, Thanksgiving dinner with family. 

I worried about it, and I was sued pretty promptly afterwards. 

Welcome to the second episode of Doctors and Litigation: The L Word. This is a podcast for physicians about litigation and...

CRICO Interview

Q.) I guess when you give a presentation, you usually share excerpts from doctors that you’ve interviewed on your podcast. And it can be very powerful. Is it important to show that these aren’t just individual cases or outliers?

A.) Very much so. I’ve always been an audio person. I know that podcasts now are venturing into the video and that kind of thing. Like I just like audio. I like the—it’s almost like the intimacy of hearing someone’s voice in your ear, like they’re talking to you, or just that feeling of like just really being present with that person’s words and their language. And I knew that it was one thing, because I’d heard a couple talks, risk managers or whoever saying like, oh yeah, litigation is very stressful. And then you sort of like gloss over it and then talk about the risk management rules, right? I intellectually knew that that was something that had been said out loud, but what had never really been conveyed, I felt like, was the real human emotionality of it, if that’s a word.

[Law Day Talk]
So first I’d like to talk to you about my why. My why I do this, why I care so much about this, and a little bit will be talking about my story through litigation myself. This is an audio excerpt from one of the episodes of how another doctor described the essence of why I do what I do.

[Plays audio of a former physician defendant from her podcast] …My relationship took a tumble, and I don’t think I recovered from that, so periods of separation, I had unhealthy relationships through work, I lost a lot of sleep. I think I started going out a lot more, and also drinking heavier. I’d come back from work late. I became more reckless. I drove too fast. I would say, ‘If something happens to me, it doesn’t really matter.’ I was actually suicidal. Now that I look back on it, I had a death wish, because I felt like life was crumbling. I have some people, like my wife, who tells me all the time that I should talk to someone professionally. And I haven’t and regret it…

NARRATOR
Dr. Pensa’s podcast has episodes with titles such as, D-Day, Preparing for Your Deposition, and When Litigation Hits Home: Relationships and Litigation Stress.  She says she was surprised that current and former defendants were so willing and anxious to share their experience publicly.

CRICO interview

A.) When I started the project and I just put the invitation out there for physicians to talk about their stories, I was so overwhelmed by how many people wanted to talk about it. And then when I was capturing the things they said, it’s not just the words, right? It’s how they say it. You can really hear the pain and having someone who’s listening, hear voice after voice after voice after voice of physicians who are like them, who are still practicing, who are really respected, who were potentially their mentors and their role models, being able to express that somehow just makes it more  meaningful and accessible. And that’s what I wanted to do. 

Q.) Let me ask you to tell your story, just basically what the case was:

A.) Well, in 2006, I was about five years out from residency and I was working, I was a nocturnist, that meant I worked, I was the only doctor in the hospital at night, which was very challenging and exciting and thrilling sometimes. So, I would run my emergency department, and then I'd run upstairs and do a code blue or airway emergency or whatever. And then come back down and run my ER, and then go up to L and D and deliver a baby because the OB wasn't there in time, and then I'd come back down and run my ER...

[Law Day Talk]
…And if it sounds terrifying to a non-doctor, yeah, it was pretty terrifying, but it was also exactly where I thought I was supposed to be. This is what I was trained for. This is what I was meant to do.

One night I took care of a young woman, who came in in the middle of the night, with a very very confusing constellation of complaints. And I knew from the time I saw her, that there was something here that does not add up. I spent a lot of time with her, and lot of time with her husband. The record reflected that I visited her 5 times in the emergency department, and I re-evaluated her each time. I imaged her. I woke up a consultant in the middle of the night.  In the end, working with that consultant, we had this plan in place to send her home, and that was about 6:30 in the morning, and she was going to be seen by that consultant at 9 a.m., but she never made it there. Instead, she went home and went to bed, and then about an hour later she suffered a massive stroke.

[music]

CRICO Interview

A.) And I just never, never saw that coming. But I didn’t know what happened because she got taken to a tertiary care center after that. And so when I was named in the lawsuit a few months later, I just was completely flattened.

Q.) You’ve got messages for different audiences. You’ve got a message for defendants, and you also have a message for their colleagues or for their supervisors and also for defense counsel. Yeah. I mean, what do you think is the most important thing for defendants to know, after all the analysis you’ve done since your own experience?

A.) There are a few things. I think when I work with defendants, I talk to them about why there is a why behind the feelings that they have. I would boil it down to just saying this, you, your life, you as a human being, you as a doctor is worth so much more than any one case. The totality of your worth is not tied up in this. This is separate, and we can talk to you about how to get through this separateness, but there are reasons why you feel the way you do, and a lot of it has to do with culturally how we have dealt with this in medicine prior to you. And so you feel like this for good reason, but we can unpack that and you don’t have to suffer this much. You’re going to suffer a little bit, that’s going to happen. It doesn’t have to be like this.

Q.) What do their colleagues have to know? What’s the top thing?

A.) Colleagues have to know that the defendant needs to know that they are valued. There are voices in the podcast talking about how people felt like other doctors knew they were going through something and nobody reached out and that made them feel even more worthless. There’s a podcast episode where I talked to the wife of a physician who died by suicide, and this concept of my peers don’t care and that I’m not a good doctor and they see me as such and they don’t care enough to help me or talk to me is a theme that I hear in physicians who are greatly, greatly suffering. And so the message to the colleagues is, please do say something, please do say something, even if it’s just like the question is, how do I say something? If it’s just like taking a moment and saying to somebody like you know what, I heard you’re going through something, I don’t need to know what it is, you don’t have to talk to me about it, but I just want you to know that I really like working with you. I think you’re a really good doctor. I like when you’re on, or I trust my patients with you, or anything. Anything like that. Just to tell that doctor, that whole thing is separate when you’re at work here with us. We value you. We want you to be okay. We think you’re good at what you do. And this is something that happens to a lot of people, but you have value to us. You have value to us; you have value to your patients. Please remember that.

Q.) I know you have a message for defense counsel, and I wonder if you could summarize that.

A.) Well, okay. I would like to say a couple of things. One, physicians are smart people. They don’t know the law and they probably come into your office not knowing thing one about how they’re supposed to be and how they’re supposed to act but you can teach them that. They’re also smart enough to discern the difference between talking about case details and talking about the ways in which they need support and the ways in which this process is difficult for them. And talking to them about that and the need to actually process what is a traumatic event, it’s going to make them a better defendant for you. They’re going to understand that difference.

And so this whole admonishment from the very beginning, this don’t talk about this with anybody, is really counterproductive. Taking a few minutes to talk to them about like ‘you are going to need support, these are the people you are allowed to talk to, this is the line I would walk with it, just understanding that when you get deposed you’re just going to have to be able to say you didn’t talk about the case details with anybody else. But I encourage you…’ and then you get bonus points as an attorney if you have a list of resources for them. And so just getting everybody on the same page in terms of how do we help this doc? Because at the same time that’s going to make them a better defendant and you’re going to get the outcome that you want, when you have a doctor who understands the process and is psychologically and emotionally prepared to weather it, so it’s in your best interest to make sure that that physician gets the support that they need.

Q.) Now, do you think that the experience has changed today for current defendants after your ordeal, or is there more support, is there better awareness of the impact, that kind of thing?

A.) Interestingly, no. I don’t think the process has really changed that much, and that’s because we don’t talk about it. There is no generational knowledge being passed down from attendings to younger physicians to younger physicians to students. We don’t talk about it. And so most residents or students could not name an attending that had been through litigation or was going through litigation. They don’t have any role models of the resilience of physicians who go through litigation, perform well, weather it well and then really talk about it. There’s very few role models in that space. And so what that means is that it just doesn’t change. One caveat, though, I do think, though, in like just the last few years, maybe we’re talking about it a little more. I’d like to think that I’m sort of a small part of that movement to bring it more into the forefront of discussions, to shine a little light on it so that talking about it itself isn’t really quite so painful and just opening people’s eyes to the fact that, yes, it’s stressful, but it doesn’t need to be as bad as it has historically been.

Q.) Thank you so much for sharing all this with us.

A.) It’s been a pleasure. Thank you so much for having me.

Dr. Gita Pensa is an Adjunct Associate Professor of Emergency Medicine at Brown University. She speaks nationally on the topic of malpractice litigation and litigation stress and is the creator of the Open Access Podcast Curriculum, Doctors and Litigation: The L Word.

I’m Tom Augello for Safety Net.

Additional information about Dr. Pensa’s podcast and her consulting work with medical malpractice defendants, is available online at www.doctorsandlitigation.com.