hese days, it feels like being named in a malpractice lawsuit is inevitable. When it does happen, physicians may feel frustrated, stressed, or saddened when they are named, but malpractice lawsuits aren’t typically pursued because a physician has done anything wrong. It doesn’t mean you are a bad provider, that your career is over or that your personal assets are at risk.

We’ll explain what you can expect if you are named in malpractice suit, how the University supports you, and how that support is critical to fostering a Just Culture of patient safety.

Medical malpractice process in Utah

In the state of Utah, a patient cannot immediately file a medical malpractice lawsuit in Utah State court. First, they have to go through the pre-litigation process with the DPL (Division of Professional Licensing). As part of this process, they must file a notice of intent and request a pre-litigation hearing. The notice will include the patient’s perception of their care and their allegations of negligence.

If you receive a notice, you should call the University of Utah Health’s Risk Management team immediately. They can connect you with all of the legal and support resources you need, including a defense attorney who works for and is paid by the University of Utah Health (“University”). The University will also pay legal fees and any settlement or judgment, as long as the allegations concern activity that occurred within your scope of employment.

While litigation is a confidential process, we do not want you to feel isolated. Case specifics can be discussed with spouses, your administration, clergy, and mental health clinicians, including formal peer support programs. Additionally, while it's important to refrain from discussing the specifics of the case with peers and colleagues, we encourage sharing the fact that you've been named in a suit, and discussing any emotional impact you may be experiencing, with friends and colleagues.

Reaching out and connecting with others can provide support and help alleviate stress and concerns.

Your attorney will talk with you about the case and help you prepare for the pre-litigation hearing. This hearing is informal and typically takes about 90 minutes. During this hearing, both you and the patient will share information about the case with a panel of three people: an attorney, a member of the community and a physician from your specialty. The petitioner will present their experience and their perception of the care, while our defense counsel will detail the medical care provided using the medical records and provider testimony as evidence.

After hearing both sides of the case, the panel will deliberate for about 30 minutes and issue an opinion on whether the complaints have any merit. The DPL will then issue a certificate of compliance to the patient, who can then proceed to file a case in Utah State court. Historically about 40% of the University cases that go through the pre-litigation process are not pursued further.

When a case is filed in court, in most cases, the University will be listed as the only defendant. If you are individually named and were working within your scope of practice, our defense counsel will make it a top priority to remove you as an individual defendant.

Once the Complaint has been served, we will begin the discovery process where we gather evidence and where you will provide deposition testimony about the patient’s care. We will also retain experts, other physicians in your specialty, to review the case and provide supportive testimony. Your attorney will help you prepare for your deposition and keep you updated as the suit moves forward. Altogether, discovery can take 6 months to 2 years to complete.

At this point, the lawsuit can end in a few ways:

• The plaintiff may abandon the claim (least likely resolution, but it does happen).
• The claim may be settled through negotiations between legal teams, usually mediation.
• The claim may go to trial, and a jury decides liability and damages.

University claims are most often resolved through direct negotiations or mediations, but some cases will go all the way to trial. Trials take place about six to nine months after all discovery has completed. If a case does reach trial, it's because the university is committed to defending you and upholding exemplary standards of care. Trials typically last about 10 days, and if your care is central to the claim, we expect you to attend every day of the trial.

We will support you throughout the trial, both legally and professionally.

Culture of safety

At the University of Utah Health, we strive to create a culture of safety that minimizes errors and provides support when errors occur. We understand that as human beings we all make mistakes; our goal is not to punish, but to find a way to prevent errors in the future.

When an error occurs, we don’t look at just the individual; we look at how the entire system may have contributed to a problem. We look at how we can support the provider and what resources or coaching they need to minimize errors in the future, whether that’s stress relief or a reminder about hospital policies.

We take this supportive approach to errors because we know that the fairer the work culture, the more our providers trust us, the more they can talk about errors and the more we can find ways to reduce errors. If you are concerned about an outcome, or if you think you’ve made an error, we absolutely encourage you to contact the Risk Management department so we can support you and resolve any issues with the patient or staff early.

Navigating the emotional impact

In addition to the legal support we provide during a malpractice suit, we also provide emotional support to affected providers. We understand that errors and malpractice issues can cause:

• Trauma related to the event
• Anxiety related to a lawsuit, the length of a lawsuit, testifying
• Stress in the workplace and at home
• Sadness or feelings of failure
• Fear related to one’s professional future
• Feelings of loneliness

These feelings, often described as the “second victim phenomenon” can lead providers to make drastic changes, or even leave their career entirely. When this happens, they become the second victim of the incident.

We in Risk Management and in the Resiliency Center want to remind you to give yourself grace. So often, providers care so much about their patients that they take on too much responsibility and too much guilt for bad or unexpected outcomes. We encourage you to come talk to us before making any drastic changes to your career. We want to help you avoid problems after a malpractice suit like:

• Dropping out of the medical field
• Obsessing over avoiding the same error in the future
• Hypervigilance in documentation or reviewing documentation
• Reluctance to ask for help for fear of being seen as incompetent

Remember if you are practicing within the scope of your employment, you will not be personally liable. Going through a malpractice lawsuit is stressful but it is also spread across a large timeframe. In total, it might include 8 days of acutely stressful activity leading up to the trial. Physicians and other caregivers have tremendous capacity to get through a few difficult days over the course of a year or two. However, if there is a significant amount of anxiety, sadness, guilt, trauma, or anger in between those few stressful days, it can impact personal and professional well-being to a significant degree. Remember to see the good work you do every day and to continue celebrating your accomplishments. Read the book: “When Good Doctors Get Sued” to understand the different parts of a malpractice lawsuit and reduce uncertainty and fear.

If you are involved in litigation and feeling overstressed, you might benefit from support by the Resiliency Center or a mental health professional. You should ask these professionals to avoid putting any details of the case in their notes, which they will honor. That way you can speak freely without worrying about affecting your case.

Talking with someone you can trust can help you address your own stress to protect both your health and the health of your current patients. It’s important to feel supported and connected as you work through the malpractice process emotionally. At the Resiliency Center, it is our standard practice to offer 4 to 5 individual therapy sessions when an adverse event, such as a malpractice suit, occurs.

We also encourage you to reach out to peer support within the University. Our peer support system allows you to talk to someone with the same level of training as you within the system who has had a similar experience, such as a malpractice lawsuit. Our Employee Assistance Providers can also offer mental health support.

Finally, if you want a community referral for longer term emotional support, start at the Resiliency Center. We know who is within network and who we trust to work with healthcare professionals. Our goal is to ensure you receive the support you need to remain in the medical field and regain confidence in your skills. We are on your side; we have the resources you need to work through these difficult feelings.