The "Invisible Hand" Series - The Impact of Medical Malpractice with Dr. Gita Pensa | Part 1

Hello, my peaceful warriors, and welcome to the Scalpel and Sword podcast. I am your host, Dr. Lee Sharma, physician and conflict analyst. And if this is your first time joining us on Scalpel and Sword, welcome. I'm so happy you're here, but I do have a favor to ask. If this is your first time listening and this is your first episode, I'd like you to pause this and go back to episode 51. And this is a shorter episode called The Invisible Hand on the Scalpel. And what we get into in that episode are the forces that are shaping medicine that sometimes we don't really think about or more unseen, but really have a presence in how medicine is practiced and how it's changed. And the 3 that we talked about in the episode were administration, insurance, and medical malpractice. And I don't know about you, but like even that word medical malpractice to me, my heart rate goes up a little bit. My blood pressure starts to spike a little, just even the thought of it starts to affect me emotionally and physically. And I don't think I'm alone in that. I think so many of us feel that way. And when you think about how that can change us as physicians and the fact that we don't talk about it sometimes as much as we should, it is a really great reason for us to have this conversation. And I can't really think of anybody I'd rather have this conversation with and can be that voice for us than Dr. Geeta Pensa. Dr. Pensa is an emergency physician, educator, nationally recognized speaker, and one of the leading voices examining the impact of medical malpractice litigation on physicians. Dr. Penza spent 12 years as the sole physician defendant in a multimillion-dollar malpractice case that included 2 lengthy jury trials. And when someone has that experience, a lot of times I think we would've crawled into a hole and not wanted to say anything about it. But she became proactive with it and decided to talk about it. She created Doctors in Litigation: The L Word, which is a podcast that brings physicians, attorneys, experts, and others into conversations about what actually happens when a doctor becomes a defendant. Today, her work includes speaking, physician education, litigation coaching, and consulting with healthcare organizations and legal teams. She has also brought the expertise into popular culture through her consulting work on season 2 of The Pit, helping its writers understand and portray the experience of malpractice litigation and litigation stress. Geeta, welcome to the podcast.

Thank you so much for having me. Thanks for that overly kind introduction, but it was fun on The Pit. I'll say that.

And it was so interesting because I think that episode has spoken to so many people. My daughter is a prosecutor in New Mexico and watched The Pit, and she was up in season 2, and it's like, hey, you know, I know somebody who was a creative consultant on The Pit. She's like, no way. I'm like, yeah. And I think that speaks to how much the work that you've done, how you took this experience as a defendant and actually became a national voice on this. At what point going through this experience did you say to yourself, I have to make a change and I have to really bring this out into the open to help other people?

That was probably about 9 years into my litigation saga when I found out I had already been to trial in 2011 and there was appeal and appeal. I'd been living with litigation stress, the hole that you talked about crawling into and not wanting to come out of. Like I was there for about 9 years. And when I found out that the appeal had gone all the way through the layers of all the courts in my state and that they had overturned my verdict after my Lawyer called to give me the unfortunate news that I was going to have to go back to trial. I sort of lost my mind. And it was really in that, that moment of feeling like this is absolute catastrophe for me. And I've already been suffering for so long. It became this real sink or swim moment for me. And fortunately for me, I decided that I would swim, but I didn't know how. And so that was when this whole, I guess I'll call it a journey now. That sounds corny, but That's where this all started.

Yeah.

Was with this decision of, I can't be like this anymore, but I don't know anything, but I just don't wanna be like this anymore. And where do I start to learn? And so starting to learn first about what it means to be a really burned out physician who once thought that they had a talent and a calling and didn't feel that way anymore. And what it meant to be a person who was accused of harming someone that you were ostensibly supposed to care for? And what in the world is happening in the law? Because none of this feels like it's based on what I see as justice. I don't understand. And so getting an education on all of those points, sort of like just little bit by little bit by little bit, led to this transformation in how I viewed both myself and myself in relationship to this lawsuit. And I began to really understand that there were some very serious misconceptions that I had and that should I had been able to sort of identify those and correct those early, then maybe I wouldn't have had to suffer quite so much for all of those years. But by the time I went to trial the second time, I was a completely different person. I talk about how I invited my residents to come to trial and how I really felt like I was equipped to be an excellent witness in my own defense. And I feel like everybody should develop that skill as a physician, especially in high-risk specialties where litigation is really commonplace.

100%. One of the things that you were talking about, and I think this definitely plays into conflict resolution work as well, is this concept of identity, that being a defendant profoundly affected your identity as a physician. That you actually began to question your skillset. You began to question even your caring for this patient and your heart for caring for this patient. Am I really the person that should be doing this?

Yeah.

And so as you went through this process, one of the things that it sounds like you really had to do was confront how this was changing your identity as a clinician. Do you feel like that's a, as you're working as a coach with other people going through this process, do you feel like that's a very common experience?

Hugely common, hugely common. And what it has a tendency to do is to whatever fears we had about ourself in the first place, like it tends to really amplify those things. And for, for some people it changes, you know, if they had a feeling of maybe like an imposter syndrome kind of thing, right? Like I've always felt like maybe everybody else is better at this job than I am, even though there's mounds of evidence to suggest that you are actually in fact, like really good at your job, right? Like there's always this feeling and some of us have used that as motivation over the years. Well, litigation, when it comes along and says, guess what? You actually are terrible at this job and you're a terrible doctor. Like obviously that feels terrible and it undermines whatever kind of confidence that you'd been cultivating all those years. If you're a person who felt that medicine was a calling and that you were doing this like for or out of your love for humanity and you wanted to use your skills in this really special way, devoting it to service of your patients. And then this happens, then you begin to question all of that too, right? You can have a real existential crisis over meaning. If I, you know, your relationship to God or whatever it was that called you into this work, that gets called into question. When you have this feeling that like, I have this reputation As an excellent surgeon and my reputation means everything to me. And now I am a person with a tarnished reputation, then that's going to change how you feel about everything. There's just so many different ways that this can impact our footing, our feeling of like, I know who I am and I know what I'm doing here. And the problem is the process becomes so adversarial. It's really adversarial. Highly mean-spirited. And we take it as already a proclamation or a judgment, just the fact that the suit is even happening. We take that to mean that like we've been like indicted by society and that like, you know, we read the complaint that's written by the court. And so it feels like it must be so. All of those things are ways where it will really shake your identity to its core. And even as a person who likes taking care of patients, right? Like if that's how you always, that was your jam. Right? And now all of a sudden you're like, every patient's out to sue me. This thing came outta nowhere. Like any patient I see could potentially bring me pain. It changes your relationship and that will change your identity.

Oh, 100%. And I'm so glad you said that because I do think this is one of these things when we talk about invisible forces, this is a huge one, right? The idea that even just the threat of litigation, even just the possibility that I might get sued, let alone the process of going through it. Everybody's out to get me. Every patient's out to sue me. And there's no way that can't affect your relationship with your patients if you're always in the back of your mind worrying about, is this the patient that is gonna sue me for X? You really can't turn that off, that fear that we have.

A lot of what I talk about is how much power this one case deserves to exert over your life and your existence. All right. And we give it so much power because we imbue it with a lot of meaning that it may or may not deserve. But coming back to this point that civil litigation, it's a dispute resolution mechanism. That's all it is. It's not set up to adjudicate care. It can't do that. It's not equipped to do that because there are no surgeons in the jury and the judge is not a surgeon and the expert witnesses may be surgeons, but they're paid on both sides and they're gonna kind of cancel each other out. And then what, a jury's gonna decide this like on vibes? Like, this is the problem, right? And so. This is a dispute resolution mechanism and it does become a lot of, unfortunately, like the plaintiff's attorney will weave a story around a set of facts that you may think is completely preposterous. But that's really the world that this is. And it really behooves all of us to learn about and understand what it really is about. But that fear, when you don't understand, it becomes like the boogeyman. And it just sort of infuses all of your interactions because you don't understand it. All you've been told is that it's looming out there, or you've had the experience of it kind of coming up and hitting you by surprise. And without a clear understanding of it and a real being able to see it in a very objective and dispassionate way, then it starts to put its tentacles into all sorts of places where it really doesn't belong.

I think that's a fantastic illustration. The idea that it's sort of sneaking itself into places that it doesn't need to be. One of the things that you said that you did with the second trial that I think is incredible, and I want to kind of talk about this, is the fact that you invited your residents to come and watch. That you were in a very transparent way showing people, I can go through this. This is a process. This is a dispute resolution process. It is not a labeling exercise. It doesn't define my identity. It is something that is happening and there is life after it. There is clinical life after that because I think that is something. And Stephen Cohen also talked about this when he was on his episode. And I think he said that you're speaking at their grand rounds like he does.

I am.

I think that's so cool. But this is also something that Stephen talked about that so many physicians, especially younger physicians, you know, interns, residents who are new in their career. Have this idea, as you said, that litigation is the boogeyman, that they're so terrified of this black box that keep it away from me. I don't want to do it. And they really do feel like they will have no life if that happens to them.

Yeah. I've met so many doctors who are being sued and they say to me like, well, my plan was to practice until I got sued and then I was going to quit. And it doesn't really work like that. And even if you quit, the lawsuit's still there. So it's not really the best plan, I would say, but none of us were taught how to contend. With it. And the reason I invited my residents to trial week was because by then I'd started educating about it. I'd started the background work for the podcast. I didn't release any episodes until 2019, but I knew what it was that I wanted to be doing. And I'd already done a bunch of interviews for it in advance of that. And one of the points that I make often is that shame holds us all back. In this arena, right? This is always gonna be hard, but it doesn't really need to be this career-ending, potentially life-ending, as we know it's a driver of suicide. I don't think it needs to be like that. And the thing that I think drives us in that direction is the shame that we all sort of collectively feel around this topic. And that's what keeps us from being able to talk about it openly as though this is a regular part of our jobs, which In some specialties it is, right? I'm on my second lawsuit now. I'm doing pretty well for an ER doctor. An ER doctor should expect to get sued once every 7 years. For a surgeon, it's probably similar or maybe even a little higher. This is an occupational reality for most of us, and we should talk about it like it is, right? We should treat it like it is. And I'm not gonna say that it didn't make me nervous to invite my residents. I was nervous about trial, like, sure. But it felt more like I was inviting them to see me give a big talk somewhere, right? Or like something that like I was prepared to do and like, of course it could go south in all sorts of ways. But as an educator really, and somebody who really hoped to influence the culture of shame around this topic, that felt like the right thing to do. And it's interesting, not all of them came and there was one guy in particular, I'm still in touch with him. a while back, but I was like, you're going to be there. Are you going to be there? And he was like, yeah, I'm going to be there. I was like, you better be there. He's like, I'll be there. And he didn't come. And then I asked him afterwards, like, where were you? I kicked butt, man. Like, where were you? I did a great job. You didn't come. He just said, you know what, Dr. Pensa, I just couldn't walk in there. I couldn't see them do that to you. I really couldn't even think about it. And I just couldn't go. I wanted to go, but I really just— I just didn't think I could handle like watching it. And I was like, oh, this is why I needed you to come, right? Because I, not only do I need you to be able to watch it, I need you to be able to do it. You're gonna have to do it. And okay, most people won't have to testify at trial, but if you were to go, for the residents that did go, wow, did it open their eyes. But it also opened their eyes to the fact that like you could do it with some training, right? If you really wanted to get up and defend good care. And most times when you're going to trial, it's cuz you're defending good care.

Yeah. Hmm.

It's gotten a little dicey lately because now what happens sometimes is that within this age of nuclear verdicts, plaintiff's attorney wants $50 million and there's like no coming down from that number and nobody could settle for $50 million. Like that's not happening. And so then you have to go to trial and just to try to get a reasonable number or a verdict in your favor. Right. But there's usually historically, if you're going to trial, it's because you believe that you provided reasonable care, or you met or exceeded the standard of care. And that's a story that you should be able to tell and tell well. And I think they came away with, one, a healthy respect for what it is they're gonna be asked to do, but also with the feeling of like, okay, if she could do that, I could probably do that.

You illustrate in a really beautiful way when you bring people into this process that this is something that we can learn to do. And we can learn to do well. I love it that you came away from that, man, I kicked butt.

Where were you?

Because even just to me, the idea that you, you've had that feeling, which I know was something that was palpable and people actually definitely saw that. I appreciate that. It's like, this is a testament to the fact that this is a learnable process and not only something that can be learned, but should be learned. The idea that we should be able to say that we can learn how to do this and do this well. One of the things that I did very early on in my career, just because of where I went to medical school, is there was a law school that was down the street and they used to do mock trials and they used to ask the medical students to come and be the doctors in their mock trials. And that was actually the first time that I ever sat in a witness box was when I was my second year of medical school. Yeah. And even just walking into this fake courtroom was like, this is terrifying. This is really scary. I don't ever want to be here.

Yeah.

And they're all using all these words. They're talking about all these things and it's like, we're going to be at sidebar. I'm like, This is nuts. But I do think that having that experience of physically sitting in that witness box at a very young age makes you sort of walk into that black box a little bit, kind of like when you invited your residents into that.

Yeah.

And there's something about the— I don't want to say inevitability, but the importance of being ready if that ever happens. So because you've been so good at educating, I guess my question would be, If we look at the statistics of the doctors who are gonna get sued at some point in their career, mm-hmm, it is unfortunately an extremely common occurrence. Why are we not teaching this more formally? Why are we not starting this in medical school or even incorporating this into a residency curriculum?

Well, that's a great question. It's really interesting cuz even now, like I have approached medical schools, I've talked to people affiliated with ACGME, like Somehow not the appetite for it quite yet. And I don't understand because I think we're gonna have to address this soon because as we look at this sort of looming crisis of physician attrition and career abandonment and people just leaving medicine and we can't hold onto doctors, right? We're gonna have to look straight in the face the fact that the current predatory litigation environment for sure, and the fear of litigation in general is a driver of people leaving. And yes, we need to make reforms. We need all sorts, but we also need to give the people who are being asked to defend good care, like we got to give them some tools, right? We just kind of cut them loose and give them nothing. And it should come early. I think that we've been doing a lot of, we're going to let the lawyers handle it. And I, our defense attorneys are awesome. Like I love them. I work closely with many of them now. We need them, but that is not sufficient, right? We should come into this. Having at least a baseline understanding and the beliefs that aren't completely counterproductive to the process. Like, cuz a lot of us come in kicking and screaming and believing things that are just not true. And I was like that. I remember what it was like to be that way. And so we should all have a pretty solid education, but what stands in our way is that there aren't enough doctors who are willing to openly talk about their experience.

Right.

Unless we have that. On a local culture. Like it's one thing for me to like get up on a stage or a podcast or whatever, but if you don't see people in your immediate environment who are able to talk freely about the fact that they are or have been going through this, then it's not normal, right? It's not normal. And then if it's not normal, then when it happens to you, you are going to feel like a pariah. And so it goes, right? Because then you will have cultivated a lot of shame around this and you will not feel comfortable. Talking about it out loud with your learners. But until it enters the everyday vernacular and just making this like a normal thing we talk about, we should talk about expert witness work openly. Like that's the only thing more hush-hush than litigation is who's doing the expert work, right? So I applaud Stephen Cohen for coming in talking about like, we need good experts cuz we got a lot of trash experts right now and we need to drown that out, right?

Yep.

If we could just be much more open and transparent, it would kind of dial down the volume on the fear. I think for a lot of people, and the fear creates avoidance. So nobody's that interested in creating a curriculum because it feels icky. I've been told by medical schools, like, I don't know, like, I think we shouldn't scare them so early. I don't think that's cruel. But then when I do try to talk about it with med students, and a lot of times all they wanna know is what specialty can I go into so this won't happen? Yeah. That's what they wanna know. They wanna like, how do I avoid it? Right. And what we really need to be teaching is this is like how to contend with it. How to be good at it. And everybody finds that distasteful and it shouldn't be. Yeah.

Well said. And I think the concept of shame is such an important part of this conversation because I agree with you. I think this is such a big reason why all of this medical malpractice and the effects on medicine is so powerful is because we don't talk about it. And that's why I love the work that you do. And I agree with you in terms of coming into medical schools and they say, oh, it makes people feel icky. I have medical students who they're interested in OB-GYN, and it's like, you know, honestly, the thing that scares me most about OB-GYN is I might get sued. I'm like, yeah, think about this, that you can do everything right. You can take great care of a patient. You can absolutely be above the standard of care on the top of your license and still get sued. This is the nature of what we're in right now. And it's like, if you love OB-GYN, if you love emergency medicine, if you love surgery, If that is what floats your boat and makes you want to get out of bed every day, then you should choose that specialty. But we are losing people. And you were talking about attrition of physicians. I mean, we're definitely feeling this in OB-GYN. We have huge maternal deserts where I am right now.

Yeah.

And we're trying to get people in. And I live in a state where our nuclear verdicts have increased over the last 2 years by 50%.

Sure.

And then we wonder why we can't get OB-GYNs in Alabama. Well, they read the papers. They actually look at— do you think that they don't know if there's a $10 million verdict in Dothan, Alabama? Does that make them wanna set up shop there? So I think the disconnect with these 2 things is real.

There is very much a disconnect, and I think that this is something that we're gonna have to start addressing because, okay, obstetrics right now, they're like, OB-GYN is like beset on all sides. Like, don't go on social media. If you're an OB-GYN, because like all you're gonna see all day are like, here are 10 things that your OB-GYN won't tell you. Or like, oh yeah, or all the ways in which like an OB is gonna endanger your baby. Or just, I mean, nonsense, right? Like what percentage of our population owes their lives to the fact that there was a skilled obstetrician like at the bedside, right? What was the maternal and fetal fatality rate in the 1800s? We have very short memories, right? And so yes, thank you to all the OB-GYNs. Like I got 3 healthy babies cuz I had some great OB-GYNs.

Yeah.

But it makes sense that under fire all the time in all directions and with a plaintiff's attorney who is ready for any non-perfect birth, no matter whether or not the mom had prenatal care, right? Whether or not, like nothing doesn't matter, right? If it comes in and it didn't happen exactly perfectly right, you're probably gonna get sued for it, right? And so in that case, all right, what do we do with that? Let's think for a moment, like how— Do we think about that, right? You could think that this is highly destructive and dangerous for me, et cetera, et cetera. And so therefore I will stop doing OB, which is what we see a lot, right? Like they just, I'll do gyn, but I won't do obstetrics, right? And a lot of people went into obstetrics for the obstetrics. They didn't go in for the GYN, as I understood, but they like the OR, that kind of stuff. So maybe they'll be happy doing that, but they leave obstetrics behind. And obviously that has a ripple effect for everybody. In society, right? Now there are some other ways to think about that too. So if you were actually an OB-GYN who was highly skilled, who knew their worth, knew their value, made sure that they were insured appropriately, right? What does that mean? That means like you do have to pay attention to where you're practicing, right? Yes, the nuclear verdict situation, whether or not you're in a private practice and what your policy limits are and that kind of stuff. You've got to pay attention to that because For the private practice obstetrician in a high-risk environment, like, how are you gonna survive, right? You got a $1 million policy limit and that's that. That's very frightening. And then of course you're paying premiums that are 6 figures for that $1 million of liability coverage, right? When every demand is $5 million. These are things that we've gotta start talking about openly because this is not sustainable. You will have no OB-GYNs in areas that are high risk. And everybody should know what areas are high risk. Like, we shouldn't be naive to these things. There's complexity, but I think that our solution has been to pretend it's not happening. And I don't think that's very helpful.

I want to drill down on that because I think that's 100% true. And I think that's a big part of the reason why I have this very clear memory. One of my really good friends from medical school who's a pediatrician who practices in my hometown, and we were out to lunch one day. I've known her since 1993 and we We were having lunch and she's like, tell you something about 5 years ago. And she's literally saying it like that.

She's like whispering it. Yeah. Yeah. Yeah. But we found out this, it's over.

And so she was so happy and she was celebrating. But the fact that she'd been going through this for 5 years by herself, that she had never shared that with me. And that's shame. That is shame talking. I don't want to tell you that I'm going through this. She was very happy to tell me that it was over because she was celebrating. She was happy. And she's like, I feel like there's a weight lifted off. And I want to talk about that too in just a second, but that she had been carrying that in silence for such a long time. And it broke my heart that it's like, why didn't you tell me? Why didn't you call me? Why didn't you let me be there with you? Why didn't you let me hold your hand? Why didn't you vent to me on days that I know it was on you? Because it's like, well, the other person's going to judge me. You're going to think I'm a bad doctor. It's exactly what you were saying before.

Yeah.

And these are exactly why the conversations that you're having out loud Putting this kind of storyline on the pit. This is the reason why we need this, is not only just externally to the profession for people to understand what it's like for us to experience this as physicians and defendants, but also internally to the profession to support each other on this. Yeah.

Right. I could not agree with you more. And giving people sort of the tools to have those conversations, because what often happens is that A physician who is being bombarded by messages of their unworthiness, who may begin to doubt their own worthiness, what usually will buoy that person up is being reminded by colleagues that they know of their value. Like, you are really good at this. Like, I would bring my family to you. I like working with you. Like any sort of reminder of like, that stuff is garbage and you belong here with us, right? That was messaging that when I was receptive to people being able to support me later in litigation, that was so helpful to And you find that when, you know, sometimes doctors feel like they don't want to talk about it. I might know that something's happening, but like, they're not allowed to talk about it and it would be awkward and they probably don't want to know that I know. But what that does is then deprive that person of the messaging and the validation. Like, you are good, you are worthy, you are a really good OB-GYN, you are a really good surgeon. Like, do not let this shake your foundational beliefs. beliefs in who you are and what you do, because it will do that. But we do depend on peers, and this is why peer support, it would be really valuable. I'm a huge proponent for litigation-specific peer support. That's one thing I do is work with organizations in developing that, but it's really important. These are occupational events, right? Events that happen in the course of you doing your job and If you're working for a larger organization, I think it's their responsibility to provide you with the education and tools and support that are required to weather this well, because otherwise it can be very detrimental, obviously psychologically, physically, and financially because you may quit. Like, that's the price of these things, and we need better tools and systems to, to help us through. But we shouldn't be afraid to talk to each other about it. We can learn how to sidestep talking about the details of the case. Everybody can learn to show up at deposition and have their truth be that you haven't discussed the details of your care. But what's in the complaint is public record, right? You can say this is a case related to an anoxic brain injury in a baby. You can say this is a wrongful death case in an 86-year-old person. That's public record. You have to be able to show up and just say, like, I haven't talked about the details of my care. With anyone. I mentioned that I'm involved in a lawsuit now and I had my deposition not long ago. And he asked me like, who knows that you're giving this deposition? And I was like, everybody. Like, I haven't talked to anybody about like the material aspects of the case, but like a lot of people know I'm giving a deposition today.

Yeah.

And he said, well, who? And I was like, well, I gave a lecture at this place yesterday and I mentioned I had a deposition today. So all of them. Everybody I work with, the coverage that I had to get so that I could be here today. Everybody in my family, everybody in my husband's family, everybody knows I have a deposition today, right? Hmm.

Yeah.

They don't know what I'm gonna say. They don't know what it's about, but okay. They can know. They're allowed to know. So they ask a question, you answer the question. You just say, but it would be nice if you could say that I didn't discuss the details of my care. With any of them. But that was a moment of levity for my attorney cuz she knew that.

Everybody knows that I am here right now.

Literally everybody knows. Like, I think I said it on my podcast. I said it to a whole auditorium of people yesterday. But that was the truth. But I wasn't ashamed to say it. This is a normal part of practice. It is. But now I see that I didn't see that before. You know, I'm not here to like lecture anybody on that cuz I know what it feels like to not believe that. And to also let it destroy your life. But I know that's not necessary. Like every single one of us gets up every single day and throws ourselves into this like crazy world of medicine. And all we do is swim against the current every single day in the hope of doing good for the people that we serve. We all do that. Nobody gets up on any given day saying, I would really love to do some harm today. Right?

No.

Right. I'd love to make a mistake. None of us are there doing that. Does it happen sometimes in the course of medicine? Yes, it does.

Right.

Are you oftentimes sued for things that you had literally no control over? Absolutely. And we in medicine have to start talking about the fact that just because someone's involved in litigation, and honestly, even if they settle a case, says nothing about their care. It just doesn't. But that's something that we've gotta get through our brains because we don't act like that.

We're going to pause our conversation with Dr. Geeta Pensa here. This is part 1 of a 2-part Scalpel and Sword conversation about medical malpractice and the invisible ways litigation shapes physicians, patients, and the practice of medicine. Join us for part 2 as Geeta and I continue the conversation. I'm Lee Sharma, and this is The Scalpel and Sword. I'll see you on the other side.