February 3, 2023 by matray

by Gail Fiore MA, MSW

Every Claims Consultant will recognize this: as much as 80% of attorney-client communication is consumed with emotional and psychological issues – often fruitlessly.

Lawyers may be very skillful at practicing law, but they’re not trained to deal with the kinds of stress-related issues many of their clients are facing. Ninety-five percent of doctors in medical malpractice litigation report having symptoms of emotional disequilibrium such as anxiety and PTSD. Of the remaining 5%, most are in denial.

Regardless of the intensity of the case, the client is going to feel stressed – apprehensive, wondering if you really understand their situation, questioning if you are doing all that can be done, wondering if they can trust you. The high level of stress may also interfere with the client’s professional judgement and patient relationships, possibly increasing their risk for an additional medical error.

How should a Claims Consultant deal with issues related to Litigation Stress?

The first step requires recognition that Litigation Stress or Med Mal Litigation Stress Syndrome is a common occurrence that can be very effectively addressed through Litigation Stress Coaching – designed to help an emotionally overwhelmed physician-defendant become a more effective witness, cooperative collaborator in the case and a more competent practitioner.

What’s the best way of approaching the subject with a reluctant or emotional client?

Experience shows that the physician-defendant is typically more amenable to Litigation Stress Coaching when it’s presented as a tool for building a "stronger case.”

When approaching the physician-defendant it is key to do so with a respectful attitude and empathetic understanding, seeing them as healthy, strong and resourceful; they are not weak or lacking in some way. Having litigation stress is a normal response to an abnormal situation.

Also, it’s important to approach the person with genuine concern and authenticity – be as real as possible in the moment – genuine empathy is more valuable than any brilliant insight or psychological acumen.

Try to put yourself in their shoes, attempt to view events from their frame of reference, and avoid comments that may be perceived as judgmental; for example, don’t try to address whatever impact the stress may be having on their job performance.

Make them aware that there is a very good resource for emotional support – called Litigation Stress Coaching – that’s non-reportable, totally confidential, and covered by their liability insurance. Remind them that this is coaching, which is a short-term process that’s specifically focused on the issues unique to litigation. It’s not psychotherapy.

Point out that, since this is a common occurrence, a lot of people have had experience with it and have gotten good results in a relatively short amount of time.

If they are open to it, you may want to initiate a referral and offer to follow up with them.

Be prepared to hear resistance, ranging from: “I don’t have time,” to “how will it look if anyone finds out,” from “there’s nothing wrong with me” to “the situation is hopeless.”

The most important part of a response is to be supportive and not challenging or judgmental. They are facing litigation and litigation stress coaching will make them a stronger defendant. It’s helped many other physicians in the same situation.

With all the time and energy they’re already spending with lawyers and litigation prep, this could actually save time, helping them focus and deal with the issues more efficiently.

When someone expresses hopelessness, it may be cause for greater concern. It might be helpful to mention that many physicians enmeshed in nasty malpractice litigation feel suicidal and ask if they ever feel that way. Ask them to bring a family member or significant other – someone they trust – into the conversation. It may be necessary for you to notify someone and make sure that they are getting help.

Claims consultants are in a unique position – and can serve as a valued counselor to physicians at a time when they need it most, rather than being viewed merely as a point of contact. Sometimes physician-defendants need more than just a lawyer and claims consultants can steer them in a more productive direction that produces better outcomes.

Gail Fiore is president of The Winning Focus, LLC, which works with physicians and other professionals coping with stress, anxiety and other emotional issues during litigation. She can be reached via www.thewinningfocus.com.