Matrix of Clinician Distress - Part 5 Medico-Legal-Regulatory Stress

Examining the immense stress that comes from malpractice litigation and from dealing with medical regulatory entities (the "MRTC")

(The entire Matrix of Clinician Distress series is available in article and podcast format - see footnote for more explanation on how to find.)¹

(It turns out it’s going to be more than a 5 part series. The feedback I got on the earlier pieces in this series suggested that I try to keep the articles more manageably readable in one sitting. And truth be told, this is rather heavy-duty stuff which makes shorter articles more psychologically digestible.)

Medico-Legal-Regulatory Stress

In this article, we cover two quite major sources of stress but which are seldom written about in the context of the overall picture of clinician distress. Malpractice litigation stress and medical regulatory agency stress.

After this piece, we’ll be wrapping it up. The ensuing article will examine one of the least talked about sources of distress, that of discrimination and the bully culture of medicine and the insidiously toxic stress these cause. And either within that piece or in a separate wrap-up piece, we’ll explore the far-reaching implications of this clinician distress matrix for the viability of medicine as a profession, and consider some potential approaches.     

Litigation Stress

Where does Litigation Stress fit in the distress syndrome cloud?

Understand that all externally originating events are best understood as “stressors.” The threat or actuality of malpractice litigation alleging that you are at fault for a major injury or death is one such type of stress causing ill-ease, a diffuse mood state consisting of multiple concurrent emotions. After all, to be accused of such, especially in the case of a patient’s death, is close to being accused of murder.

Now, the reality of the events that transpired and the portrayal of those events by a dramatically aggressive plaintiff’s attorney are two entirely different worlds. As we know, a court of law is not the same as a truth-seeking forum. And as is well recognized in the world of litigation (courses are taught on it!), the more dramatic and persuasive, the more touching to the jurors’ and judge’s heartstrings, the more favorable for the plaintiff. This litigation genre is premised on manipulating opinion, using dramatization and embellishment and even frank dishonesty in the factual portrayal are the ruling determinants of the court’s decision, not the truth of the matter. If truth mattered, all malpractice cases would be independently investigated and then from there, a case’s merit would be determined by an independent panel. And the likelihood is that most cases would never proceed to trial.

And all stress that results in psychological impact has manifestations in one or more of three primary domains: mental (which includes both emotional and cognitive); physical (I.e. somatic); and behavioral (performing an action in response to the stress).

Malpractice litigation against you is a high-intensity psychologically complex stress event.  For our purposes here, let’s just name that Litigation stress as a major STRESS event, one that almost invariably, \engenders an intense amount of anxiety, hurt, and anger, and may also intensify shame if one had any degree of plausible culpability. And nearly invariably concurrent with that is the experience of unfairness of the allegation and the process. One feels falsely accused. In this process where one is not the prime cause of a poor outcome, the experience of so many docs is “betrayal.” My belief in fairness and in giving my best effort to my care is now table-turned into a wrongful accusation of negligent or even intentional harm and an implication that I am a defective doc. And, meanwhile, I have to take these allegations stoically and can’t respond to their unfairness. This is a form of moral injury and here, instead of shame (which would be understandable if I were fully and exclusively culpable which is seldom the case), I feel a sense of rage, of indignation and overwhelming fear. But, in circumstances like this, where’s that rage go? Almost invariably it’s held inside.

All those intense negative emotions drain our emotional bank account. As we’ve seen previously, a drained emotional bank account leaves little to go around for compassion. It’s hard to feel compassionate, or even emotionally available, when you’re being paraded around as a pariah and menace to mankind! And so that stressor - the totality of the psychological stress impact resulting from this one litigation event dragging out interminably over time - rapidly depletes energy (thus increasing fatigue - Burnout element #1); causes one to be preoccupied, distracted, and more removed from clinical engagement, whether with the patient or the team or for that matter even one’s chosen field - therefore disengagement, element #2); and one’s quality, productivity and certainly sense of self-worth are bound to be affected (reduced accomplishment, element #3). So here we see all three factors of the Maslach Burnout criteria manifested.

But here’s the intriguing thing that few are examining in their understanding of the causality and phenomenology of burnout.

In most people’s conceptualization of the classic burnout syndrome, the phenomenology is seen as a progressive whittling down of one’s “chi” or psychic energy by the inherently intense nature of the work and its universe of relentless demands. In fact, what’s only now beginning to be acknowledged is that whereas before burnout was predominantly conceptualized as some deficiency of coping, i.e. you couldn’t “take the heat,” progressively docs are saying, it’s not my capacity to handle stress, it’s an overwhelmance of the stress capacitance of anyone’s “coping.”  Docs who are experiencing “burnout” are not stressed because they “can’t handle stress.” They’re stressed because there’s a tsunami of stress! It is a multi-causal stress assault that even the most stress-hardened can’t endure for long. And insisting that it’s a clinician deficiency syndrome is not only erroneous, it creates its own moral injury component by turning the tables and concealing the reality of the stress assault.

So, how impactful is litigation stress in the matrix of clinician distress? Major. Enough to cause docs to become bona fide ill over and to make them want to leave the profession – in hurt, in disgust, in rage.

Can litigation stress contribute to compassion fatigue? Yes. Burnout? Yes. Moral injury? Yes. Can it even feel psychologically traumatic and result in PTSD? Yes. Can it lead to or worsen a clinical mood syndrome such as anxiety or depression? Yes.

MRTC Stress - Dealing With The Medical Regulatory Therapeutic Complex

If you’ve followed Physician Interrupted and the organization which it’s the blog for, CPR, this cryptic acronym is well familiar to you.

It stands for Medical Regulatory Therapeutic Complex. I and colleagues conceptualized a power structure system that when considered as an integrated system, plays an extraordinarily powerful role in determining the viability of a physicians career. Our article "Systematic Abuse And Misuse Of Psychiatry In The Medical Regulatory Therapeutic Complex" describes a collaborative effect amongst multiple players in the administrative regulatory arena of healthcare whose actions, separately and even more so combined, can exert immense – life and death – power over a physicians career. While not limited to these, the MRTC includes state medical licensing boards (MLBs); physician health programs (PHPs); so-called fitness-for-duty “impairment” evaluation and treatment facilities; and credentialing entities.²As has been seen in numerous articles, physicians are very fearful of acknowledging any "weakness" that might bring them to the attention of a medical board or a so-called physician health program. (See “To Heal or Not To Heal, That Is The Question”)

By law, there should be no employer or licensing agency concern about whether a person is currently seeking mental health services or has in the past; these are of no consequence to one’s ability to perform one’s job currently. However, it has been documented and has been well known to be present for a number of years that almost half of state medical boards in the United States are asking questions on their licensing and renewal applications that are impermissible under the Americans With Disabilities Act.

The same seems likely to be true of credentialing agencies, i.e. the healthcare institutions which employ physicians and provide staff privileges.

It is not just the intrusiveness of these questions that is problematic, nor even simply the highly confidential nature of them.  Rather, it's that these questions almost invariably generate an automatic referral to the affiliated state physician health program which then may conduct an invasive psychiatric consultation and may deprive the physician of their rights to privacy and non-intrusiveness. The integrity of such evaluations may be highly questionable and increasingly there seems to be a very powerful self-serving motivation by these agencies to refer to an exclusive internal network. Diagnostic conclusions and recommendations derived from these so-called "fitness for duty evaluations” or “screening evaluations” may then result in a virtual order to submit to a prohibitively costly evaluation at a “preferred” out-of-state assessment program in their select network using non-standardized assessment instruments. The findings of these non-objective evaluations may then be used to compel the physician into a treatment program that must be paid out-of-pocket and compliance with which is mandatory under threat of loss of license and public humiliation.

Surely, one can appreciate the stress this might cause.

I and colleagues have found in speaking with over 1000 physicians cumulatively that there are no due process controls in place to prevent abuse of this quasi-psychiatric, quasi-legal evaluation process.

Thus, physicians are extremely reticent to seek help as they know that they may be asked about receiving such help on their licensure application. And acknowledging such on an application could be the death knell of their careers.

That state medical boards, credentialing entities, and physician health programs are allowed to operate in this abhorrent way continues to boggle the mind. Whether state and national medical and specialty societies are simply ignorant or perhaps even passively complicit is not clear. But their passivity is so egregious and their absent protection of physicians’ rights so notable that legislators in multiple states have had to intervene to pass laws protecting physicians from these rapaciously intrusive and non-overseen quasi-governmental entities.

Whatever the reason for their lack of initiative in addressing this major source of concern, it must be acknowledged that this dynamic operates as a background if not prominent source of distress for many physicians. And therefore, it needs to be considered a significant element in the overall clinician distress matrix.

The particular irony here is that if you thought there was already sufficient stress contributing to your overall clinician distress, consider now that the very fact of your experiencing distress puts you at risk of career jeopardy, not from the impact of the overall distress as bad as that may be, but from the lurking MRTC agencies who may assert with utterly no legitimate basis or due process protection that you are impaired and a danger to society as a result of your distress. Alas, even worse, they may insert their presence in your life behind the benevolent façade of wanting to help.

In the event that you have been falsely accused of some impairment, the only psychological experiences you can have is are those of rage and a sense of betrayal, as well as fright about the irreparably adverse and potentially bankrupting and even lethal impact on your career.

It causes one to ponder the nearly complete silence of state and national medical societies on confronting these harms. At a very minimum, why haven’t state and national medical societies taken a stand on ADA-illegal questions being posed on licensing and credentialing applications? Why is such a pattern of legally and ethically impermissible behavior allowed to continue without the clout of these organizations insisting on immediate reform? Why must it remain the burden for each wronged physician to engage costly counsel to fight this battle, especially considering its overwhelming costs and low likelihood of success in the individual litigation arena? Perhaps the failure of advocacy of such physician-centric organizations is itself another source of distress.

In part 6, we examine Discrimination, Harassment, and Medicine's Bully Culture as being a key component, one seldom examined, of clinicians’ distress matrix.

1. When you click at the very top of the page on the Physician Interrupted title, it’ll take you to Physician Interrupted’s table of contents page which lists all the articles and podcasts published. You can sort them in a variety of ways. As some of the articles were longish, I broke up the corresponding podcasts into more manageable parts, e.g. 6A, 6B etc.

The articles’ titles aren’t exactly descriptive - I’ve put the topic covered in the subtitle which, space permitting, may or may not show up in the TOC.

The podcasts are all identifiable as they have a headphones icon. The content of the podcasts is mostly the same as the article. While I read aloud the content of the corresponding article, occasionally I improv’d a bit. Nothing substantial. Some people prefer the written word; others enjoy a podcast; still others like having both. Some have some cover art; some don’t. I’m still getting the hang of this. I’ll likely go back and prettify things some time hence.

2. Systematic Abuse and Misuse of Psychiatry in the Medical Regulatory-Therapeutic Complex. Robert S. Emmons, M.D. Kernan Manion, M.D. Louise B. Andrew, M.D., J.D.  Journal of American Physicians and Surgeons. Volume 23 Number 4, Winter 2018. pp 110-114. link: http://www.jpands.org/vol23no4/emmons.pdf