To Sue or Not To Sue

by | Jul 27, 2014 | General Articles, Medicine

The decision on whether or not to sue someone is first of all a legal question; but there are also psychological reasons to sue or not to sue.

I am not a lawyer, but I’ve been involved in a number of lawsuits as an expert witness and, more commonly, as a therapist to someone who is contemplating, or in the middle of, a law suit. I am referring mostly to cases of medical malpractice or other violations of liability law (when a person is injured by the negligence of someone else.) In my experience these matters usually come up in a possible case of medical malpractice, but the situation is not much different from other kinds of malpractice and from liability law in general. I know nothing about suing to enforce a contract or to assert a constitutional right of one sort or another.

The question of malpractice comes up when there has been a bad result from a medical or surgical procedure. Sometimes a claim of malpractice can be asserted when there was an omission of proper care. The standard of care to which the medical caretaker or hospital is held depends on when that care was offered, What is appropriate and expected treatment for an acute heart attack, for instance, is different now from what it was fifty years ago. Someone practicing then cannot be faulted for not doing what we would regard now as an essential aspect of treatment. On the other hand, medical practitioners are supposed to keep up with current practice.

If a doctor did not provide the usual standard of care for the patient’s problems, and as a result that patient was injured, a case for malpractice can be made. If the medical caretaker was, for example, negligent, such a case can be brought by the injured party or, if the malpractice proved fatal, by that person’s family.

A patient and his/her family are likely to go along unquestioningly when under the care of a doctor, especially when the patient is very sick. But when the dust settles and there has been a bad outcome to treatment, the patient and family begin to question whether the care offered during treatment was adequate and proper. Not uncommonly, they will be encouraged by others to consider the possibility that it was not; and that, therefore, they should sue. They may then end up in a lawyer’s office.

Assuming the claim for malpractice is not obviously wrong, the lawyer will obtain all the medical records. In order to determine if the care was proper, the records will then be sent to experts in the field to review them. The fact that the patient may have been injured does not by itself establish malpractice. Things go wrong all the time. If the injury was a known complication of proper treatment, and if the patient had agreed to treatment, no malpractice occurred. In order to decide whether or not to proceed to a legal action, the lawyer has to consider two things:

  1. Liability. In other words, was the doctor, or institution, at fault because of negligence or because of some other failure of responsibility. The patient may feel that his or her condition now is so terrible, the doctor must have done something wrong; but that is not so.
  2. Were there damages? In other words, did that inadequate care cause the patient to be injured? The doctor may have behaved outrageously, but if no injury was caused by that behavior, no law suit will be instituted. For example, a family cannot sue if the patient would have died anyway.

Of course, there are other considerations which will determine whether or not the lawyer will encourage such a legal action. Lawyers will take on such a case if there is enough money involved to justify their time. Typically, they fund the conduct of the trial largely out of their own assets. If the case is successful, they will keep about a third of the judgment. If they lose the case, they will get nothing. A “good” case is one wherein the negligent behavior is obvious and where there has been considerable damage to the patient’s health. Ultimately, both the lawyer and the patient and his/her family have to decide whether or not to proceed.

At this point a number of psychological factors intervene. Whether or not a patient will sue a doctor depends in part on the nature of their relationship. If the doctor has been properly attentive and concerned—and apologetic when things go wrong—the patient is usually disinclined to sue. When the physician seems indifferent or unresponsive, a law suit becomes more likely.

The lawyer regards the malpractice action as an attempt to obtain financial recompense for income the patient has lost by virtue of his/her not being able to work and also to pay for the care the patient and his/her family will require, sometimes over the course of a lifetime. These damages may include payment for “pain and suffering.” It is at bottom a financial transaction. For the patient, however, the suit may seem to be a claim for “justice.” The patient, having been wronged, is entitled to hold the doctor responsible. From that understandable point of view, the case can never be entirely successful. How do you value the loss of a limb, or an eye, or, worse even, the loss of life? Whatever the settlement offered by the doctor or by his/her insurance company, it will not seem enough. The lawyer’s job, on the other hand, is to be practical. If an offer to settle is made, a lesser amount offered has to be weighed against the possibility that a jury at trial will decide that the doctor was not at fault after all, in which case, the injured person will receive nothing.

A few odd things start to happen while the patient and his/her family are waiting for a lawsuit to start up and then stop and start again through one postponement after another. They mull over the awful thing that has happened to them, and they get angrier. The extent of the malpractice seems to grow and become more and more egregious. The other side may seem to be lying, or, at least, covering up. Other doctors enlisted by the defense seem to be covering up for the offending physician. It becomes more and more a case of bad people on the other side who must be defeated. It is a moral issue and a personal issue. The lawyer still wants to get the best possible financial result for his client. The patient wants vindication. These views are likely to be in conflict. Also, the patient  will discover that no matter how much his lawyer cares about the outcome of his case, he  does not care as much as the patient. So, conflicts tend to worsen as the case proceeds.

On the other hand, there are some—really many—who feel it is not right to sue anyone; and they will not, no matter how justified such a complaint would be. Since the patient’s well-being may be at stake, often it is right to encourage such a person to sue.

I had a patient once, a frail middle-aged woman with a long history of paranoid thinking and behavior, who was sitting at a table in the middle of a well-known restaurant opposite her only friend when an automobile crashed through the wall, injuring her slightly, but killing her friend. A lawyer representing the driver of the automobile kept trying to reach her by mail in order to settle what seemed like an inevitable claim of damages; but my patient was too distraught even to open the letters. Her emotional health deteriorated further. Her financial situation was such that she needed whatever financial recovery she could obtain, but despite encouragement, she could not sue. Even reassured that she would never have to take the stand, the thought was terrifying. And so, that was that.

I had another patient who was inclined to sue in a number of situations because she always felt others were taking advantage of her. Once when her mother was 92 and in the hospital because of a return of brain cancer, she had the nurse call the doctor because her mother was not breathing comfortably. He did not arrive until an hour later. Her mother died the following day. She wanted to sue the doctor for malpractice. If she had followed through, the process would only have caused her to become more upset. Her mother would surely have died no matter what the doctor did.

There are a few situations when I encourage someone to sue, and others when I advise them not to sue. There are psychological reasons that sometimes outweigh legal considerations.

If, as a consequence of someone causing the patient an injury, he/she has come to feel powerless or helpless, I encourage that person to sue. An example that comes to mind was a woman who had not been the victim of medical malpractice. She had been bitten by a neighbor’s dog while she was jogging. She was inclined to let the matter slide, but, then, the neighbor continued to walk the dog in the same area. She felt she had no recourse except to stop jogging. Also she began demonstrating symptoms of post-traumatic stress disorder. I encouraged her to sue. Her symptoms improved shortly thereafter.

On the other hand, when the patient is motivated primarily by a desire for revenge (justice), I tend to discourage suing.  An odd thing happens while the patient is enduring the endless postponements of a lawsuit. His/her symptoms tend to get worse. This is a well-known phenomenon that has nothing to do with someone pretending to have physical symptoms in order to make more money in a financial settlement. People unconsciously focus on their symptoms along with focusing on their case; and so they become more symptomatic. Back injuries, for example, are less likely to respond to an operation if there is still ongoing litigation about the injury that caused it.

I had a personal experience that demonstrates my concern in these situations. My wife and I had trouble conceiving our first child. I was terribly upset, out of proportion to the circumstances, but consistent with my tendency at the time to imagine the worst possible medical outcome. After 6 months of emotional turmoil, my wife become pregnant and in time gave birth to a healthy girl. On the very first day we were home, we took this especially valuable child on her first ride in a baby carriage. We went only about twenty feet to an intersection. When the light changed, I started to cross but became aware of a taxicab that had stopped at the red light, It was rolling slowly in our direction. There was no one in the cab. It became obvious to me that the cab was going to roll into the carriage. I picked up the baby just in time and watched the cab crush the carriage. The taxicab driver had left the taxi in order to check on a rear tire. Within an hour an insurance adjuster arrived at our house wanting to settle any claim we might make!

I was a first year psychiatric resident at the time, and I understood exactly what would happen if we made a claim for emotional damages. The difficulty we had conceiving, the very first time we ventured outside with this child, and the awful circumstances of an unattended taxicab would all argue in favor of a considerable financial settlement–if my wife subsequently claimed to be anxious, frightened of the street, subject to nightmares and all the rest of the unverifiable symptoms characteristic of post-traumatic stress disorder. I knew she would not have to testify at court. Still, I knew that if we were going to pretend for a year to be disturbed in that way, she, and probably I also, would inevitably begin to have some of these symptoms. Consequently, I did what no lawyer would have advised. I signed a piece of paper discharging the taxicab owner of all responsibility. I settled for a new baby carriage.

There are emotional consequences, as anyone might imagine, to living through a legal action. There are consequences to winning (anti-climax and dissatisfaction) and more to losing (a sense of defeat and helplessness.) It is frequently appropriate, even inevitable, that legal actions of this sort should be pursued; but the related psychological factors should be weighed carefully. Author of “Caring: a guide to supportive psychotherapy.” (c) Fredric Neuman