Steven E. North and Laurence M. Deutsch
In virtually every medical malpractice case we handle, we ask ourselves, “Why did this error occur?”
Some physicians are just sloppy. Some may just be in too much of a hurry. Ultimately, a physician is responsible to provide an acceptable level of care. However, to understand “what happened” more deeply, to present our case most effectively, we always try to look into why something that shouldn’t have happened did happen.
Often, "burnout" may be an underlying cause of poor practice.
A significant percentage of physicians are burned out or otherwise unable to provide the best medical care available to patients. This, of course, puts patients in jeopardy and leads to errors that could result in strong medical malpractice suits.
In a Medscape.com commentary, Dr. Andrew Wilner asserts the long-established fact that the practice of medicine requires lifelong learning. However, the rapid proliferation of new treatments, technology, and medications, the pressure to see more patients in a finite amount of time, and the growing administrative demands of new regulations often compromise physicians’ learning time. This does not bode well for patients – or the physicians fighting burnout.
Wilner said that when he was a resident, there was only one drug approved for multiple sclerosis. Now there are at least 15. Since then, 15 new drugs have also been approved for epilepsy. Each drug has its own clinical indications and unique side effects. “That’s 30 new drugs to master just for these two diseases,” he said.
In another commentary, psychiatrist Dr. Peter M. Yellowlees says that “physician burnout has reached epidemic levels, with negative effects on patient care, professionalism, physicians’ own care and safety, and the viability of health care systems.” In fact, lifetime physician burnout rates in most studies fall between 30% and 40%. How can a prospective patient know whether a surgeon he is considering is burned out? How can she know that the physician is up to date on treatments and not clinging to an old standby because he has not kept up with the latest treatment options?
Even poor bedside manner can negatively affect a patient. Most people have experienced anger, frustration, or feeling like a number with no personal relationship at all with a physician? Negative experiences can be a deterrent for a patient who needs follow-up care.
Some may be tempted to excuse a physician from poor practice, if “only” due to “burnout” or other causes “beyond their control.” However, this mindset does a disservice to patients and is not the law. A civil case, unlike a criminal one, does not require proof of “bad intent.” Indeed if it did, the physician should be in jail, not facing a civil suit.
But more fundamentally, even physicians experiencing “burnout” still have a responsibility to be safe. The old adage, “Physician heal thyself,” has application here Simply put, if a doctor is not in a place both physically and mentally to be providing safe care, then he or she has no business treating patients.
Because of the prevalence of this phenomenon, we would caution all patients to be attuned to the apparent subtleties of "burnout," hightail it from an office when they sense it, and find a physician who has the enthusiasm, energy, and a personality that allows for engaging interchange.
Medscape.com, Andrew N. Wilner, MD, “More Than Ever, Doctors Need More Time to Learn,” May 8, 2017
Medscape.com, Peter M. Yellowlees, MBBS, MD, “Interventions to Prevent and Reduce Physician Burnout,” August 8, 2017
Medscape.com, Neil Osterweil, “A Third of Urologists Are Burned Out,” May 18, 2017
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Specialist in Cases Involving Significant Damages • Listed in Best Lawyers • Listed in Who’s Who • Commentator, Court T.V., Eyewitness News, Talk News T.V. • Contributing Author, New York Law Journal Author of Numerous Publications • Faculty Chairman, Continuing Legal Education Programs • Trial Lawyer and Bar Association Committees
1988, New York and U.S. District Court, Northern, Southern, Eastern and Western Districts of New York. Union College, Schenectady, B.A., magna cum laude, 1984 Phi Beta Kappa; University of Chicago Law School, J.D., 1987
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