In this episode we have a conversation with surgeon and longtime expert witness Dr. Stephen Cohen, who wants to tell you about common mistakes he's seen physician defendants make in their cases. Dr. Pensa and Dr. Cohen discuss real cases Dr. Cohen participated in as an expert, and their legal outcomes. We also emphasize the unfortunate reality that we (and licensing boards, and society)should not use adverse jury verdicts and legal outcomes alone to infer whether someone's medical care was reasonable. 

Learn more about Dr. Pensa at doctorsandlitigation.com.

Dr. Pensa explains why attention to your thinking, even when you feel your mental health is "good", can lead to personal growth and a more satisfying life. We all know the markers of excellent physical health, but what are the components of excellent mental health? Is it simply being happy all the time? Is that even possible? (Spoiler: it's not.) 

Using functional fitness for the body as an analogy, we look at the importance of not waiting until your health is poor before making efforts to improve or optimize. Strength, endurance, flexibility, agility, speed, and balance are facets of both functional physical health as well as your mental health and thought processes that can be developed and strengthened over time with intentional practice. A person adept in all of these spheres can become more adaptable to life's inevitable challenges, and just like in physical health, learning to lean into resistance and some discomfort in lower-stakes situations will increase your capacity over time. The concepts of thought work and emotional agility are introduced. 

Mentioned resource: Susan David's Emotional Agility 

Many of us have no idea who our medical malpractice insurance carrier is, let alone the details in our policy. 

But this ignorance can have huge consequences when it's time to face a claim, and it's better to go into that challenge with your eyes wide open. 

On this podcast, Dr. Pensa speaks with John Shufeldt, MD, JD, MBA about things that every doctor or other patient-facing clinician should know about their insurance coverage, which can vary tremendously from policy to policy, and from insurance company to insurance company. 

So before you take a new job, or before you face a claim: have a listen, and learn about the questions you've got to ask. 

Physicians and other clinician defendants whose cases go to trial (roughly 8-10% of malpractice cases) usually have little understanding of the legal events and strategies involved, which naturally amplifies their anxiety. Today on the podcast, we'll continue to address these knowledge deficits. 

Decisions made about how cases proceed are usually made by considering how the 'optics' of a given case will look to a hypothetical jury -- but when trial begins, at jury selection and the voir dire, that once-hypothetical jury will be come real flesh and blood laypeople, who have their own ideas, perspectives, biases, likes and dislikes. And they will decide how this long legal saga ends and which side prevails (barring any appeals, which unfortunately Dr. Pensa is very familiar with.) 

In this podcast, we talk to Shari Belitz, Esq., a trial and jury consultant, about the importance of jury selection and the strategies involved. Ms. Belitz is the CEO and Owner of Shari Belitz Communications. She is a seasoned attorney who then trained in forensic psychology before launching her career as a trial consultant and strategist. 

We talk about why the jury is all-important in case outcomes, the strategies attorneys can deploy during the voir dire to try to select jurors who may be more inclined to side with their case, how attorneys can expose bias and strike jurors for cause, and the utility of mock juries and focus groups. 

If you haven't listened to the Season One episode on Trial and Settlement, start there first. 

You can learn more about host Dr. Pensa here.

In this episode, Dr. Pensa discusses 'strategic communication' in litigation with expert Matt Abrahams.

Matt teaches strategic communication at Stanford Graduate School of Business and hosts the podcast, "Think Fast, Talk Smart." He's also the author of the books "Think Faster, Talk Smarter" and "Speaking Out Without Freaking Out: 50 Techniques for Confident, Calm and Competent Presenting."

We talk about the importance of communicating strategically in any setting, including the artificial settings of deposition and trial. We discuss, among other things, anxiety management, the importance of preparation and structure, and communicating with empathy, clarity, and brevity.

More about Dr. Pensa and how to contact her: https://doctorsandlitigation.com/

"A World of Hurt: How Medical Malpractice Fails Everyone" is a new documentary produced by Emmy-nominated physician-filmmaker Dr. Mark Brady and two medical students, Alex Homer and Viknesh Kasthuri. After a year of private screenings and film festivals, this powerful piece was recently picked up by PBS after winning multiple awards. It is now free to watch online (links below). 

In under 27 minutes, this short documentary tells three stories: a plaintiff whose sister dies after a medical error; a physician whose life is decimated by a malpractice allegation; and a couple whose baby dies in the hospital, but seeks a non-traditional route for closure. 

Dr. Pensa, who appears in the film, turns the tables and interviews the filmmakers in today's podcast. They discuss what it was like making the film during COVID, the difficulty of getting subjects to agree to filming, and how they hope this piece can be an agent for conversation and change. 

Please watch the film and share widely. It is short, but powerful.

Watch now:

PBS: https://watch.ripbs.org/video/a-world-of-hurt-how-medical-malpractice-fails-everyone-uklpuo/

YouTube: https://www.youtube.com/watch?v=09IVcL6pACU

You can find Dr. Pensa at doctorsandlitigation.com

The phrase "nuclear verdict" strikes fear into the heart of any defendant - and today we're going to tackle it head on.

We welcome Dusty Otwell, JD, medical malpractice defense attorney and Chief Risk Officer of UCACS, to the podcast to discuss “nuclear," "runaway jury," or aberration verdicts. These are jury awards to the plaintiff, given at trial, that well exceed predictions. They tend to make headlines, create fear among doctors and other providers, and lead other parties to dream of giant jackpots.

In this episode we discuss:

• Societal trends that may be fostering the increase in aberration verdicts

More about host Gita Pensa, MD, can be found at https://doctorsandlitigation.com/

Dusty Otwell is vice president for claims and risk management at US Acute Care Solutions. He also serves as Chief Operating Officer and Corporate Secretary for Clinician Assurance Risk Retention Group, the self-insurance carrier for USACS. Previously, he was associate general counsel and director of risk management for Emergency Service Partners, a founding partner of USACS; a senior risk management consultant for ProAssurance Corporation, staff attorney for Maynard, Cooper & Gale, P.C., and staff counsel for Medical Reimbursements of America, LLC.

There is a wealth of research to support a positive effect of mindfulness on the mental health and overall well being of physicians and other clinicians. This is well documented in spheres like burnout, job satisfaction, and overall well being (sample references below). Today on the podcast we introduce mindfulness as a cognitive tool that can be useful in litigation preparation as well.

Today's guest, Douglas Morgan, is a seasoned medical malpractice defense attorney who incorporates the teaching of mindfulness into his work with clinician defendants. 

Resources mentioned:

• Apps: JKZ, Plum Village, Headspace, Ten Percent Happier and Insight Timer (Dr. Pensa and Attorney Morgan have no financial ties)

References:

1. JAMA Internal Medicine. (2019). Effect of a Mindfulness-Based Intervention on Burnout Among Physicians: A Randomized Clinical Trial. 

Medical Boards (or state Departments of Licensure and Discipline) are charged with keeping the public safe from unskilled, impaired, or unscrupulous doctors (or other licensed clinicians, each of which has their own board). While this is an important and necessary role, it is also not uncommon for well-meaning or "innocent" doctors to become the subject of investigations due to complaints from patients, other doctors (including competitors), or from the Board itself. Malpractice litigation or adverse event reporting may also trigger Board investigations as well.

This process is usually opaque, and clinicians have a poor understanding of how their Board works, who is on it, how those people are appointed, who they answer to, what happens when complaints are investigated, the possible ramifications of board decisions, and how to best prepare themselves in the case of a complaint. A naive physician can unwittingly worsen their situation, and an attorney is usually recommended to help in navigating the process. Depending on the complaint, your malpractice policy may help defray the cost of this.

Important points to note: processes for Boards differ from state to state. Typically anyone can lodge a complaint against a physician with the Board, for nearly any reason, and every complaint needs to be addressed in some way. These complaints can be anonymous in some states, and can range from serious to trivial. There is generally no statute of limitations for these complaints. Consider this podcast an invitation to learn more details about your state's medical board and their processes. 

Board investigations and evaluations have been linked to physician suicide, and Dr. Pensa cites a study from 2014 in which nearly 5% of physicians referred to the Tennessee medical board for fitness-for-duty evaluations either seriously attempted or completed suicide. She also mentions a John Oliver 'Last Week Tonight' episode about state medical boards that paints a bleak picture of state medical boards' ability to root out dangerous doctors. The job of the medical board is indeed a difficult one, and Dr. Pensa makes the case for more transparency, accountability, and feedback mechanisms given their power and the wide-reaching impact of their decisions. Changes would need to be made at a legislative level, as the Board is typically a governmental/political organization.

Dr. Gita Pensa gives an introduction to Medical Board investigations and complaints in this episode with Guillermo Beades, Esq. Mr. Beades teaches and publishes regularly in an effort to educate physicians and other clinicians about healthcare law. 

You can find an article of his about this topic here in Medical Economics. 

Guillermo J. Beades, Esq., is a Partner in Frier Levitt’s Healthcare Litigation Department and Co-Chairs the Firm’s Insurance Defense Group. He represents healthcare professionals in a broad range of administrative, civil and criminal healthcare matters. Mr. Beades has extensive litigation experience before state licensing authorities and Medical Boards (e.g., NJ BME, OPMC), federal healthcare agencies (e.g., OIG, CMS, DEA) and state healthcare agencies (e.g., NJ Medicaid Fraud Division, NY OMIG). He represents practices and healthcare professionals in matters concerning credentialing and denial of privileges, administrative discipline, Medicare audits, hospital fair hearings, post-payment demands and pre-payment audits.

This month, we're exploring the topic of 'help-resistance' in physicians. Why do we acknowledge the need to maintain and optimize the health of our bodies, but scoff at doing the same for our minds or mental well-being? Why do support programs flounder from lack of participation? Why is the notion of even 'self-help' so foreign and...icky?

In this 'listicast', Dr. Pensa explores the top ten(ish) reasons for help-resistance in physicians. This has practical implications as to why physicians often do not access support programs, and why they may resist external or even self-help instruction. 

These concepts are each briefly explored, with particular focus on the physician experience (though, of course, other clinicians and high achieving professionals may have similar experiences.)

Ten Reasons Behind 'Help-Resistance' in the Physician

1) Internal core beliefs and identity of the physician (and traits including exceptionalism and perfectionism)

2) External collective beliefs and medical culture 

3) Inability to recognize when help is indicated (or avoidance coping)

4) Lack of awareness of various modalities of 'help' (what does 'help' even mean?)

5) Family of origin (or culture of origin) taboos; expectations of the family high achiever

6) Absent help infrastructure (or a hush-hush help infrastructure)

7) Terminal uniqueness

8) Fear (of discovery, judgment, licensure/discipline threats)*

9) Friction

10) Change resistance and inflexible thinking (or dichotomous thinking)

*To learn more about Dr. Lorna Breen, the Dr. Lorna Breen Heroes Foundation, and their work addressing the origins of this fear, go to https://drlornabreen.org/

More about Dr. Pensa: https://doctorsandlitigation.com/about-gita-pensa

Disclaimer: Dr. Pensa is not a therapist or psychiatrist, and this discussion is not meant as treatment for any specific mental health disorder. This list is based on Dr. Pensa's personal and professional experience, and her coaching work with other physicians in the realm of litigation stress and burnout.