Litigation stress is best understood as consisting of negative physical and psychological reactions to being involved in a legal action. Indeed, litigation itself is mentioned specifically as a stressor in the multiaxial Diagnostic and Statistical Manual of Mental Disorders-Text Revised (fourth edition), in Axis IV (Psychosocial and Environmental Problems). A variety of physical and emotional responses to litigation have been found. Litigation is an uncertain process and one with which most people are not familiar. It can affect one’s identity, causing feelings of guilt and shame, and can lead to isolation from family and peers. The problem is particularly acute for health professionals, who face professional sanctions in addition to the other consequences of a lawsuit.
The earliest work on litigation stress was done by a physician, Sara Charles, who herself was the subject of a medical malpractice suit. In her work, she found that more than 95% of sued mental health professionals acknowledge some physical and/or emotional reaction.
Physical responses typically include the onset or exacerbation of a physical illness, such as myocardial infarction or peptic ulcer disease. Headaches, sleep disturbance, chest pain, and gastrointestinal symptoms may also be reported. An exacerbation of any preexisting physical health problems can be expected. Even cases of cardiac arrest in the first months after initiation of an investigation have been reported.
Emotional responses are more common and may range from anger to profound depression or even suicide. Cognitive disruptions such as problems with concentration and attention are common. Irrational thoughts associated with “catastrophizing” and “awfulizing” are common, along with rumination about potential disastrous outcome. Marital and family conflicts are very common consequences of litigation stress. Preexisting strains in these relationships are magnified. As one would expect, it is not uncommon for the use of alcohol, tobacco, and caffeine to increase during this time of stress. The risk for abuse of these substances increases, along with various prescription medications, especially pain medications, anti-anxiety drugs, and sleep medication.
Why do litigation and complaints cause such stress? First, the operations of the legal and complaints systems are unpredictable, particularly for those who do not work in the system or are not familiar with the rules, terminology, and processes. This unpredictability is a significant factor contributing to the practitioner’s sense of a lack of control over the process they are facing. Second, this unpredictability is compounded by a lack of knowledge about the process in which they are engaged, and the fact that in many instances, others may make decisions that could significantly influence the outcome of their case. Third, a lawsuit is a direct assault on an individual’s personal identity and engenders feelings of shame and guilt. Finally, it is often the case that a person who is sued feels alone and isolated from his or her peers, family, and friends because of allegations of having done something inappropriate or wrong.
Among health care professionals, the threat of a malpractice lawsuit is particularly serious. For mental health professionals, being named in a malpractice suit can have particular professional consequences beyond what usually happens to other defendants. Since 1986, any entity making payments in settlement of a malpractice claim (unless the payment is made by the mental health professional on his or her own behalf) must report the provider and case details to the National Practitioner Data Bank (NPDB). Furthermore, credentialing bodies (e.g., hospitals, group practices, licensing authorities) are required by law to query the NPDB when considering the qualifications of a mental health professional applicant.
Surveys such as that done in 1979 by Mawardi in the Journal of the American Medical Association have found a high rate of concern over the threat of malpractice litigation among physicians; some respondents actually contemplated giving up the practice of medicine. These surveys have also indicated that over half of all physicians practice “defensive medicine” so as to avoid or minimize the risk of legal action. Defensive practices include limiting practice by not performing certain high-risk procedures, ordering medically unnecessary tests to document clinical judgments, and even turning away patients seen as potentially litigious. Williams, in a 1981 article in the Journal of the Arkansas Medical Society, termed physicians’ fear of malpractice litigation “paranoia malpracticum.” A similar term “litigaphobia” was later coined by Stan Brodsky.
Being sued for malpractice has indeed been shown to be an emotionally traumatic experience for physicians and for mental health professionals as well. The initial reaction to being named in a malpractice suit is often a high level of anxiety, accompanied by feelings of righteous indignation, anger, and vindictiveness. Self-esteem may also be affected. Such stressful effects may be heightened by a loss of social support similar to that often experienced in divorce, as well as the uncertainty engendered by the possible impact that the legal action may have on the professional’s life and career.
In addition to the significant physical and psychological responses to malpractice litigation, mental health professionals are more likely to stop seeing patients who seem to have a greater risk of experiencing a bad outcome or of propensity to initiate a suit. These mental health professionals are more likely to consider early retirement and to discourage their own children from entering the medical profession. In a 1988 survey of psychologists, fear of litigation was an acknowledged reason for the use of sound risk-management techniques. After being sued, many mental health professionals begin to keep more meticulous records, order more tests and consultations, and stop performing procedures that may result in risk even when they are appropriate and performed competently.
- Breslin, F., Taylor, K., & Brodsky, S. (1986). Development of a litigaphobia scale: Measurement of excessive fear of litigation. Psychological Reports, 58, 547-550.
- Charles, S. (2001). Coping with a medical malpractice suit. Western Journal of Medicine, 174, 55-58.
- Charles, S., & Kennedy. E. (1985). Defendant: A psychiatrist on trial for medical malpractice. New York: Free Press.
- Lewis, B. J. (2004). When the licensing board comes a “calling.” Bulletin of the Psychologists in Independent Practice, 24, 2-4.
- Mawardi, B. (1979). Satisfactions, dissatisfactions, and causes of stress in medical practice. Journal of the American Medical Association, 241, 1483-1486.
- Wilbert, J., & Fulero, S. (1988). Impact of malpractice litigation on professional psychology: Survey of practitioners. Professional Psychology: Research and Practice, 19, 379-382.
- Williams, J. (1981). Paranoia malpracticum. Journal of the Arkansas Medical Society, 78, 265-269.