Litigation is, by its very nature, a sporadic process. Its bursts of intensity and long periods of inactivity can produce significant stress for medical providers named in a suit even during the ordinary course of events. However, with the ongoing pandemic, new layers of disruption and uncertainty have been added to this already challenging situation (along with new realities like indefinite trial postponements, online depositions etc.).
With any legal suit brought against a clinician, there is fear and worry. The pandemic is adding to that by creating a sense that there are no safe spaces, routines are upside down, and clinicians are exposed to continuous trauma of death, loss, and tragedy. Courts closing has added to the uncertainty and the reality of a disrupted system.
Linda Crawford, JD and Ken Settel, MD, joined us on a Candello Claims call to discuss caregiver engagement and support (especially for defendants caregivers) during this very stressful time.
Linda Crawford: In anticipation of our phone call today, I’ve talked with judges around the country and the bad news is that courts are not only shut down, but when they come back, their priorities will be criminal cases not civil cases. Some states will do better than others; but judges are telling me it will be all hands-on deck to deal with the backlog of criminal cases. Civil cases will move forward but at a much slower pace. That will have an impact on our ability to move our own cases forward. There is still a place for us to move forward with our defendant’s lawsuits and help them be reassured during this time. We have been using video conferencing to connect with them and reassure them that we are here.
Ken Settel: Malpractice litigation without concurrent pandemic is perhaps one of the most traumatic experiences in a clinician’s life. They are terrified and frightened about what lies ahead in this strange world which is very different from their medical world. There is a certain amount of fear and isolation when a health care provider faces a lawsuit; COVID-19 adds another layer of fear and isolation. When defendants heard that many courts closed due to the coronavirus, they felt further frustration at carrying this additional burden of uncertainty and anxiety.
Linda Crawford: There is no question that these lawsuits remain sitting on their shoulders every day. I hear from defendants how much they appreciate when a claims manager is engaged with them. This is a great time for us to be more proactive in touching base with them—even if we don’t have anything concrete to update them about the case—but just reach out to let them know that we are thinking about them and provide a safe space for them.
Ken Settel: I agree with Linda and the messages that “We care about you, you matter to us, and you are not alone.” Helping them feel less alone makes them feel valued. Unpredictability heightens the sense of uncontrollability—not being able to control their destiny. With this can bring on a feeling of anger. With proper support, they can rise above that feeling of helplessness and engage their anger to want to defend themselves. Peer support is valuable because their “peers” are telling them they are ok. The limitation is that they can’t discuss the details of their case nor does it offer the same privacy as working with a professional to discuss past experiences that may be stirred up by facing a malpractice case.
Candello Members from around the country also shared what they are seeing regarding litigation as a result of COVID-19:
- Using video technology for depositions/mediations or for peer support
- Loss of income to physicians who can no longer perform elective procedures or are unable to work due to their risk categories
- Added isolation of physicians being separated from their family while they are on the frontlines of treating COVID-19 patients
- Impact of CMS changes to future litigation
- Impact of health care providers as heroes on juries
Members of the Candello Community can access the slides and a recording of this call in the member-only online Candello Community. Additional resources have been made available within the online community regarding how COVID-19 is impacting claims management.
About Linda Crawford, JD | Linda Crawford & Associates
Linda S. Crawford, J.D. teaches trial advocacy at Harvard Law School and has been consulting with parties and witnesses on research-based effectiveness at deposition and trial since 1985. Success at verdict continues to be well over 95%.
About Ken Settel, MD | Boswell Group
Kenneth M Settel, M.D. is a psychiatrist and psychoanalyst who works with businesses and organizations to develop leadership success, resolve organizational conflicts and promote operational effectiveness through enhancing understanding and addressing the challenges of growth, change and work effectiveness. Dr. Settel is a lecturer in Psychiatry at Harvard Medical School.