Medicolegal Issues

Got malpractice distress? You can help yourself survive

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Prepare for the stress of being sued by knowing what to expect and how to respond



The author reports no financial relationships relevant to this article.

“Immediately after the event I was a wreck. I vaguely remember talking to the family; I don’t know if I was much use to them.… That night I got drunk. It was the only way I could sleep. A sensitive colleague came and sat with me.”1

As an ObGyn, it is almost certain that you will be sued sometime during your career. Specific actions that I’ll describe in this article can help you deal with the stress associated with the adverse event that precipitates the lawsuit and the lawsuit itself. To begin, remember:

  • Anticipation is the best defense
  • Knowledge is power
  • Action counters passivity
  • A supportive environment is essential.

How can you anticipate litigation?

What is the risk? No nationwide reporting system tracks the incidence of medical malpractice claims. A recent survey by the American College of Obstetricians and Gynecologists, however, found that 89% of practicing ObGyns had been sued at least once in their career, with an average of 2.62 claims for every ObGyn.2 Because a claim usually takes years to resolve, a substantial number of ObGyns are involved in litigation at any one time.

You can successfully anticipate litigation by maintaining familiarity with your state’s statute of limitations—usually, this period is 2 to 3 years after discovery of the incident, with exceptions for children, the disabled, and designated special circumstances. If a plaintiff’s case is not filed within this time, a disputed outcome can never be the subject of a malpractice claim.

ObGyns are keenly aware of the exception that extends the time period during which a case may be filed on behalf of a child after discovery of the alleged injury. Many states set 8 years as the cutoff for filing a claim; others, such as Illinois, extend the period for as long as 2 years after a child’s 18th birthday. This long tail of vulnerability creates unpredictability for insurers, who must estimate the relationship between current premiums and potential payouts (often in the distant future), resulting in high premiums for ObGyns’ insurance. More importantly, it creates an undercurrent of anxiety and uncertainty for those ObGyns who must contemplate defending themselves in court for incidents that occurred in the distant past.

Listen to your feelings whenever you suspect that a patient is dissatisfied or that a bad outcome may lead to a claim, and take appropriate action. Reexamine your risk management procedures and discuss your concerns with your risk manager. Because it may take years for a case to be filed and many more for it to be adjudicated, possibly by trial, your best defense is clear, accurate, comprehensive, and contemporaneous documentation of the situation. Any later review of the case will be based on records that, if clearly kept, will be easily and unambiguously interpreted despite the passage of time.

Responding to an adverse event

The severity of the outcome, the nature of your relationship with the patient, and the degree of your responsibility for an adverse event contribute to the intensity of your initial emotional response. If a mistake caused the event, your reaction may be even more severe.3-6 Whatever the specifics of the event, you may ruminate about your role and degree of responsibility (TABLE 1).


Questions that might nag you after a “bad” outcome

  • Is this my fault?
  • Could I have prevented this from happening?
  • Did I make a mistake in this patient’s diagnosis or treatment?
  • Did I make a mistake in judgment?
  • Could I have done something else (such as perform a cesarean section or decide not to perform a VBAC)?
  • Did I harbor unconscious transference feelings (such as feelings of dislike, mistrust, or anger) toward this patient?
  • Did I miss some signs I should have seen?
  • Would this have happened no matter what I had done?
  • Are others to blame?


The 3 “must-do” actions after an adverse event

Medical steps
  • Take necessary actions to limit further injury or disability
  • Obtain appropriate consultations
  • Review the medical record; anticipate the patient’s follow-up needs and make recommendations for further treatment
  • Follow the health-care system’s and insurer’s guidelines for notifying the patient and family
  • Inform the institution’s risk manager and your professional liability carrier as soon as possible
  • Write a description of the event for the record and a narrative for your personal file (and your lawyer’s) in case a suit is filed later
  • Do not talk with the media
  • Acknowledge your ethical obligation to be truthful
  • Follow your institution’s and insurer’s guidelines on disclosure
  • Expect to feel intimidated and uneasy in discussing your role in the event
  • Expect the patient and family to be angry and disappointed with you
  • Convey an interest in the patient’s and family’s emotional state; express sorrow for their loss
  • Tell the patient and family what you know for sure; don’t speculate about what is unknown and don’t make false promises or false reassurances
  • Don’t hurry; give the patient and family time to ask questions
  • Expect to feel somewhat better after a truthful exchange


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