Physicians face many obstacles today when it comes to providing quality care, including burnout and staffing shortages. But a new documentary sheds light on another challenge that isn’t as well-known: malpractice litigation. Morning Host Luis Hernandez spoke with co-director Viknesh Kasthuri, a medical student at Brown University, and Dr. Gita Pensa, a Rhode Island emergency physician featured in the film.
Learn more about “A World of Hurt: How Medical Malpractice Fails Everyone” here. The film premiered on Rhode Island PBS June 21.
TRANSCRIPT:
This transcript has been edited for length and clarity.
Luis Hernandez: Physicians face many obstacles today when it comes to providing quality care, including burnout and staffing shortages, but a new documentary sheds light on another challenge that isn’t as well-known: malpractice litigation. It’s called “A World of Hurt: How Medical Malpractice Fails Everyone.” Joining me now are Viknesh Kasthuri, a medical student at Brown University, and one of the film’s directors. Viknesh, it’s a pleasure. Thank you so much.
Viknesh Kasthuri: Thank you for having us.
Hernandez: Also, Dr. Gita Pena, a Rhode Island emergency physician featured in the film. Dr. Pensa. I really appreciate the time. Thank you.
Gita Pensa: So glad to be here.
Hernandez: Viknesh, I want to start with you. Tell us a little bit about this documentary, how it came about. Where did the idea come from?
Kasthuri: Sure. So Alex and I, Alex[ander Homer] is one of the other directors on the film. He also is one of my classmates at Alpert Medical School. We had been working on this podcast called “Back of the Chart,” and in this podcast we interviewed doctor-patient dyads about what worked about the relationship and the art of medicine generally. And one of the things that really struck us was this idea of all the other non-medical factors that played a role in the practitioning of care. And one of the things that came up was medical malpractice – this Sword of Damocles, if you will, that hung over a lot of physicians and really affected the way that they practiced. And so Alex and I both have a lot of photography skills and we figured we would meld that with our storytelling abilities from the podcast and put together this documentary. Dr. Pensa also happened to be our podcasting instructor, and she had told us all about her experiences in the field. Both of those things were inspirations for us.
Hernandez: Medical malpractice, I mean, it’s something we’ve heard plenty of times. But really, how big of an issue is this that maybe we don’t know about?
Kasthuri: It plays a huge role in the physician psyche. It’s something they think about a lot in terms of practitioner and care. “Oh, will this come back to bite me? How can I cover my care, make sure I’m documenting things correctly?” And then the other thing we like to highlight in the film is not only is this an issue for physicians – it can lead to burnout, stress, litigation, stress – but it’s also an issue for patients. The process is very protracted. It can take many years for patients who have experienced medical malpractice to get a settlement, and overall, it’s just not a really great system for us to address any root problems.
Pensa: I can address some of the data questions. … There’s data to suggest that in higher risk specialties such as surgery or OB/GYN, that if they practice for 30 years, that upwards of 90% of them will face a lawsuit at least once. And so if at least 90% of all of these doctors are getting sued at some point, I think it argues against this general belief in the population that only bad doctors get sued. In fact, most good doctors will get sued at some point in their career and it has really significant effects on their psyche.
Hernandez: Well, Dr. Pensa, you’re in this documentary, and in part because you were a defendant in a medical malpractice case that lasted a long time. I mean, just briefly, what happened?
Pensa: So I’ve been an emergency physician for over 25 years, and about half of that I spent involved in litigation. I was named as a defendant in early 2007 after I saw a patient in 2006 in the emergency department. Even though I felt like my care in that case was good, the patient suffered a bad outcome and I was sued shortly after that. Fighting that case took 12 years. I went on trial twice, first in 2011. I won after a four-and-a-half week trial. I mean, the initial demand was astronomical. They were asking something like $28 million. I was suffering so much with all of this fear. Where am I going to get $28 million from? Bitterness, because I felt like I had actually delivered really great care in this case, but something went wrong. I was afraid of the judgment of my peers. I was afraid of people finding out, and I had never received any instruction whatsoever in what to do once the finger was pointed at you, so it was a hard time.
Hernandez: Is this not discussed in school?
Pensa: No.
Hernandez: Well, hold on. How is this not discussed in school if that percentage of doctors in their career are probably going to face a malpractice suit?
Pensa: What we’re generally instructed in is something called risk management. That’s what we receive instruction in, which is basically, to my mind, like how to be a good doctor, how to document well, how to deliver good care, how to listen to your patients, how to instruct them clearly. But we’re never taught about what happens after you get named in a lawsuit, even though the majority of us will do it.
Hernandez: I wanted to get into the mental health aspects. You started talking about how this affected you. What are the mental health issues you’re dealing with here?
Pensa: Probably, I would say for the first seven or eight years of litigation, I was really unwell. I was really unwell. I had lots of dangerous thoughts. I felt like I was prepared for so many things in medicine, but I wasn’t prepared for this. I had no modeling of how to think about it. I had thought of myself as a really good doctor, and all of a sudden that went away. I was still showing up to work. I had loans, but I didn’t want to be there. I wanted to quit. I just didn’t know what else I was going to do. And I had a mortgage and a kid at that time, and I didn’t know what else to do. After I won my first trial, you would’ve thought that I would’ve felt better and I didn’t. I just felt so dejected that this happened. I had a lot of distaste for what I was doing. The whole process felt so ugly. I had wanted to talk to the plaintiff all along, but once the legal proceedings start, you can’t do that. And so all of the humanity is sucked out of the process. I realized that we need to talk about this openly and teach physicians the skills to cope with it.
Hernandez: All of these emotions you felt, by the way, I mean this is, I’d imagine, typical for doctors to experience when they’re going through this.
Pensa: Yes, and actually since that time, I’ve been doing a lot of work. Now I educate on it. I speak on it. I’m a coach and a consultant. There is this commonality, there are these themes that come up over and over again, and it can lead to career abandonment. It can lead to substance use and abuse. It can lead to relationship harm, and it can lead to suicide.
Hernandez: Viknesh, you wanted to jump in.
Kasthuri: This topic, as we saw in the film, is very taboo. In the course of the film, there were so many times where we would have people with great stories, and then when it came to talking about it on camera, all of a sudden they didn’t want to risk it. I think it, again, goes back to how taboo this topic is. No one wants this mark on them about talking about medical malpractice.
Pensa: There’s a great deal of shame around it because the public perception often is that if a physician is sued, they must have done something wrong, which is often not the case. In fact, over half of suits that are filed, they’re dropped or withdrawn because there is no evidence of malpractice. In cases that do go to trial the physician wins over 80% of the time, because usually if someone’s going on trial it’s because their case is largely defensible. And then in the middle there are these settlements, and unfortunately, even a settlement doesn’t mean anything in terms of error, because the settlement is often not up to the physician. The settlement is often up to the insurance company. So people try to infer things about whether a doctor is a good doctor or not by whether or not they’ve been sued, and we all know that, but we also know it’s largely bogus.
Hernandez: Viknesh, I’m wondering two things. One, you’re doing this, you’re having this conversation with her and you’re looking into this for this project, but you’re a student, a prospective doctor. What are your thoughts when you learn all this? What have you learned from all this?
Kasthuri: I mean, I think this entire project is so eye-opening in terms of how does the system work, how little education we get on this in medical school. I remember talking with some faculty at the medical school. “Why don’t we get more education about this? This is something we can work on.” And one of the response I got is, “I don’t want to scare you. We don’t want to scare people.” And it’s interesting to me. I feel like this is not true about anything else in medicine. We don’t say, “Oh, heart attacks are really scary, so we’re not going to talk about it. Strokes are really scary. We’re not going to talk about it.” Well, for medical malpractice, so often we sweep this under the rug. Our hope with the film is to start the conversation, bring this out into the open, reduce the taboo around this topic, and to talk about how can we make sure the system is safer for patients? What can we do to make this a better system for everyone?
Hernandez: Dr. Pensa, Rhode Island has one of the worst malpractice climates in the country for physicians. Is that true?
Pensa: That is true. Now it’s funny, I didn’t appreciate that when we moved to Rhode Island in 2001, but now that there are easily accessible rankings and you can go online and do your research and find out that Rhode Island is largely a very inhospitable climate for physicians based on both reimbursement and medical malpractice climate. We’re usually ranked somewhere around the bottom. I think you can draw a straight line from that to the fact that we also have a doctor shortage in this state, and I think most listeners have probably had the experience of trying to get a doctor’s appointment and not being able to for six, seven, eight, nine months. It’s hard to attract physicians that don’t have another reason to be in this state. It’s really hard to attract them when they can go online and look at these rankings and find out that Rhode Island is consistently at the bottom of the list on reimbursement in medical malpractice climate.
Hernandez: Is that really the biggest reason or is there something else as to why we need more doctors?
Pensa: There are lots of reasons. I think right now, burnout is an absolute crisis. When I talk about doing emergency medicine, I’ve been doing this for 25 years. Some of my residents will look at me and say, “There is no way. There is absolutely no way that I can hang in that long.” One of the things that I do in coaching is work with physicians who, for whom litigation is the last straw. They have been struggling, struggling, struggling, struggling, and then they get a lawsuit and they’re like, “I am out of here.” I work with them to, if they want out, if they really want out for all those reasons, then it’s not my job to stop them. But if they love what they do, then this should not be the thing that drives them out.
Hernandez: Viknesh, what do you want people to take away from this project?
Kasthuri: We hope to be descriptive with the film more than prescriptive. So we hope to sort of expose the problem. We talk about how the system doesn’t work for doctors, doesn’t work for patients, and then we talk about a possible way forward. So I guess, if we could talk about some of the storylines – so one of them, to your point earlier about mental health, covers this physician who has a very well regarded career in emergency medicine. He was about to retire, and he gets sued with this lawsuit, which doesn’t really have much merit, and through this process, it really worsens his mental health. It dramatically worsens his mental health, his own inner thoughts about “Do I believe in my care? I believe I did the right thing for this patient.” And then through this process, he was sort of worn down, beaten down, and at the end he almost was like, “I don’t know if I am a good doctor.” It eventually drove him to commit suicide. And so I think that sort of speaks to the mental health burden.
Pensa: He took his own life the day after deposition. He felt so demoralized, and this is a very common experience of physicians who are in it. Now, maybe there was error involved. Maybe there was something that they feel like they could have done better. We all tend to judge ourselves by this through this A+ lens. And if we didn’t deliver A+ care, even that can be a driver of really terrible feelings because we’re all sort of perfectionists in our own right. But then to have someone tell you, “You are the worst thing. You are the worst person. You do hurt people. You are not a good doctor. You are terrible at this.” I understand that these are tactics, but we tend to take it very much to heart because we weren’t instructed in the strategy of litigation, unlike other participants in the process. And it can be very, very damaging. And so yes, this physician takes his life the day after his deposition and it’s a heartbreaking story.
Hernandez: I’m going to finish with this, giving you both the final word, and Dr. Pensa, I’ll start with you. Is there anything else you want to add on this?
Pensa: I mean, I’d just like to say it is a hard topic to talk about out loud because a lot of listeners will have had what they see as substandard care at times. They’ve all had an experience where they feel like a doctor let them down. And I know that feeling. I came very close to suing someone who had taken care of my father, and as a doctor I knew he was receiving substandard care. I know that happens, and I’m not here as an apologist for bad care. I know these things happen, but I also know that this system, the way it’s done now, is not serving the people that it’s supposed to serve. And there are other models out there that are more humane that allow the physician to talk to the people who have been harmed to restore some degree of humanity to it. The patient-physician relationship is, I think, to most of our minds still sacrosanct. And to be able to carry that through this process would be so healing for so many of us.
Hernandez: Viknesh, what would you like to add?
Kasthuri: Our hope with the film is to highlight the problem with the system and talk about things that we can do as a society to improve care and make our health system more safer. And so we talk about communication resolution programs. That’s just one possible reform. There’s other states that have implemented, for example, caps on non-economic damages and “I’m Sorry” laws that allow a doctor to express their condolence for the fact that bad things happen and make sure these sort of integral parts of the doctor-patient relationship aren’t used against them in court. These are some really basic things that we can do to really improve, I think, the culture and the environment that we work in healthcare.
Pensa: We’ve recently introduced these bills into the legislature and there’s no appetite for them right now, but I hope we can keep trying.
Hernandez: Viknesh Kasthuri is a medical student at Brown University. He’s co-director of the new documentary, “A World of Hurt, How Medical Malpractice Fails Everyone.” Dr. Gita Pensa is an emergency physician and adjunct associate professor of emergency medicine at Brown. Viknesh, Dr. Pensa, I really appreciate it. There’s so much we could talk about, but thank you so, so much for all the information.
Pensa: Thank you so much for having us.
Kasthuri: Yeah, thanks for having us.
