Note: The Nocturnists is created primarily as a listening experience. The audio contains emotion, emphasis, and soundscapes that are not easily transcribed. We encourage you to listen to the episode if at all possible. Our transcripts are produced using both speech recognition software and human copy editors, and may not be 100% accurate. Thank you for consulting the audio before quoting in print.

Emily Silverman

You're listening to The Nocturnists’ latest series, Shame in Medicine: The Lost Forest. If this is your first time tuning into the series, welcome! And I actually recommend you rewind and start at episode one. This is a series that builds on itself over time. So starting at the beginning will definitely lead to the richest listening experience. Enjoy the show!

Gita Pensa

So, my attorney–every day before court, and on the first day, especially, I had to meet him at his office–and he was, like, “I'm going to drive you to the courthouse.” And it was interesting because he drove me in a pickup truck. He and the junior attorney sat in the front and I sat in the back with, like, all the dog blankets and whatever. And he was, like, “People are gonna watch you get out of the car. So from the minute we get there, there are optics involved. So you're getting out of the back of this pickup truck. And, and then we're gonna go in.” “Okay.” And, you know, walking in, it's, you know, it's an imposing building. I never really been in a courtroom before. There's the whole going through the metal detector, and marble halls, and the sound is echoing everywhere. And there's the clickety-clack of people wearing high heels and lots of people in suits and lots of people who aren't, and who are there for criminal cases or whatever. And, but I was very much like a deer in the headlights, thinking, “What? What is happening right now?” All eyes are on you. Judge starts giving you instructions and giving the jury instructions and you just–I liken it to being like Alice in Wonderland–you know, you fall into this hole. Nothing makes sense. You don't even know who to trust. You don't know what to believe. You don't know if your skill set is going to help you in any way. You have no idea what the heck is happening.

Emily Silverman

You're listening to The Nocturnists’ Shame in Medicine: The Lost Forest. I'm Emily Silverman. Today we're going to be talking about shame and litigation. A lot of people think that only bad doctors get sued, or at least that only other doctors get sued. But actually, it's a thing that happens to many, many people in the healthcare field and can be a huge source of shame. Mostly, we'll be exploring this theme through the story of Dr. Gita Pensa, an emergency medicine doctor in Rhode Island whose voice you just heard. In many ways Gita’s story is incredible. But in other ways, it's actually quite average, considering how often doctors deal with litigation stress. I'll let Gita take it away once again.

Gita Pensa

In 2006, I was a pretty young attending. I was about five years out from residency and I was working in a community hospital. At the time, I was a nocturnist. I was the only doctor in the hospital at night. And I really loved what I did. You know, I would run the emergency department–I'm an emergency physician. And then I would have to go upstairs to run a code or intubate someone, come back down to my department, and maybe go up to labor and delivery because we didn't have OB in-house at night, deliver a baby, come back down. It was terrifying at times. But it was absolutely where I felt like I belonged.

And then one night, I took care of a young woman. She was around thirty years old and she came in with a very complex, very confusing presentation. And I spent a lot of time with her and her husband, trying to sort out what was going on. And I did a very thorough physical, and I revisited her, probably, five times during her visit. I imaged her, I called a consultant–I woke him up in the middle of the night–I was worried. And in the end, I wound up discharging her with a plan in place to see a specialist at nine am that morning, three hours later. But she never made it there. Instead, she went home and went to bed. And about an hour later she suffered a massive stroke. And because she was taken to a tertiary care center after that, I had no idea that anything had happened until I was named in a lawsuit a few months later.

And I was completely stunned. I was crushed is probably not too heavy a word to use, I was absolutely, absolutely flattened. I remember getting the notice and feeling like I was going to vomit, and having to sit down, and breaking into a sweat, and just not comprehending in that moment. And I also didn't know the first thing about what to do next, because no one in my training had ever talked to me about what to do once you were served. And I think the implication was, to me, that if you were a good doctor, and you followed all the risk-management rules, and you were nice to your patients, and you had the spirit of a good physician, that you would not have to worry about it. Because if you were a good doctor it wouldn't happen. And that was the beginning of this, you know, the emotional–I can't say roller coaster because roller coasters have highs. (Laughs) What's the word? Oh, I don't know, chasm. Some, some word like that. But that's, that's where it started.

And so, in that moment, I recall that I just really unraveled. Because everything I had felt about myself, and being a good doctor to that point, was just decimated, in one fell swoop. And, at the same time, I felt awful about what had happened to my patient. I mean, this was a young woman, who was an engineer, who put her trust in me and her faith in my abilities, and a terrible thing had happened to her. And I didn't understand it. And I felt like I must have missed something. And for all the faith she had put in me, I had come up short, and now she was permanently disabled. And I had a really hard time living with that. My instinct in that situation is, like, I wanted to pick up the phone and call her. I wanted to arrange a meeting. I just want, all I wanted to do was just explain to her, like, “I tried so hard. I don't understand what happened.” I just I wanted to have that sort of basic human moment when someone that, you know, I didn't know if I'd been the one who hurt her. I knew that it happened, like, on my watch. And I wanted to talk to her. And that is, of course, absolutely not something that can happen once litigation starts.

You know, I had a lawyer, I had the insurance company, they were trying to talk to me about what was happening. But all I really knew was that I was the sole physician defendant, I was the sole face of this case, and the initial demand was twenty-eight million dollars. And I had seen cases like that play out before, in our state. You know, it was front page news when there was a verdict like that. And they would name the physician, publicly shame them, and the physician never got to say anything about the case. And I just didn't know what to do with those emotions at all.

And now I know that it was textbook litigation stress, but I had never heard that phrase before. And I'd certainly never seen it in a textbook. And I didn't want to take care of patients because I was afraid. It's a tremendous responsibility we have, and a lot of times we, sort of, we have to put that in the back of our minds to do what we do every day. If you really thought about the implications of every single action that you went through in a day, like, you could have, you couldn't do anything, you'd be paralyzed. But that's what started to happen. You know, “Should I order this test? Should I not order this test? I probably should order this test because what if I missed this?” I didn't want to see patients. I didn't want to miss anything. I didn't want to hurt anyone. And you know, at home, I really wasn't that much better. I think I couldn't really stop perseverating, ruminating. I certainly was impatient with my children and my spouse, and it had a way of seeping into everything.

I knew that other doctors had gotten sued. I actually knew somebody who had gone to trial and lost, of no, absolutely no fault of his. As much as I understood that it could happen to other physicians, and I thought of him as a good physician, I still somehow felt like it was, sort of, like the scarlet letter. I think shame is probably the chief word at the heart of all of it. And I knew that I was going to, you know, if I settled or if I lost, I'd have to report that for the rest of my career. I know applying for licensure and all of that, like it just doesn't go away, for so long. And I just, it's not something you want people to know. And meanwhile, settlement offers were rejected. Every kind of reconciliation attempts, all of them failed. And it became very plain that we were heading towards trial.

And so in 2011, I did go on trial. My attorneys had prepared me well enough that I kind of got through it. But I felt very much like a zombie. I just, there's a lot about that, that I don't even remember. We have a certain skill set in medicine that does not serve you well, when you're going through litigation. And that, you know, it's, I liken it to showing up to, like, a basketball game with your tennis racquet. And you have no idea, what, what are they doing with these balls? And why are they throwing them? It's scary. I remember testifying–I think it was like a day and a half that I was on the stand–and it was pretty brutal. And I won in the end, but it did not feel much like winning.

I had actually said, in the middle of it, to my chairman–who was a wonderful man, who would come to the courthouse and try and be supportive–and I'd said to him in the middle of the trial, “I'm not coming back. Just, I don't know, you have to figure it out. I'm not coming back.” And he made me promise to just come back for two weeks. And if I felt like after two weeks I didn't want to do it anymore, that he would say, “Okay.” And the funny thing was, just getting back into seeing patients, as much as it felt like a drag and there was fear and dread when I would go into work, I realized, like, “Okay,” like, “I'm trained to do this, I can keep doing it. I don't like it. But while I figure out what else I'm gonna do, I can do this.”

But it wasn't long after that, that I got the notice of the plaintiff’s intent to appeal the verdict, which I, just, had not even actually been on my radar. I had thought that I had finally put the whole thing behind me. And then, all of a sudden, it started again. Everything felt so ugly and dirty, and unfair and foreign. By that time, I had sort of figured out that there wasn't anything else I could have done in this case and that I would never have been able to predict without a crystal ball what was going to happen to this woman. And I just could not imagine dealing with that for one more day. And so when it started again, I was really, really, really in a low place.

In the meantime, my kids were growing up. You know, I'd seen this patient in 2006, I was pregnant with my third child. By the time I went to trial in 2011, she was in kindergarten. And the years went on, and they got older, and still it just kept coming back, coming back, coming back. It went through all the layers of the courts and then in 2015, my verdict was overturned and they informed me that I was going back to trial. And I just about lost my mind.

All of those old feelings, and then overlaid on that was this anger. I was so mad, so mad the stupid system, year after year after year, like, like how can they torture you like that? For so long? I just felt like this is never, ever, ever going away. And this is just my life now. And it was, sorry, I feel kind of bad when I think about what I felt like, so it actually, yeah, so I, you can probably hear it my voice, I'm sorry, but it was so bad. I realized that I was in really big trouble. And I think I knew that for a long time before that. And I do what doctors do. I mean, I think I was pretty good at putting a brave face on things, trying to run my household, going to work, taking care of the patients, but I knew that I was in trouble. And there was this one phone call with my attorney. He was, he was awesome. But he was a no-nonsense guy. He had actually been a marine at some point. So he was not having any of my guff. So one day, I was on the phone with him, and he was just telling me like, “You gotta, you gotta put your big girl pants on.” Like, “It’s time. We've got to get our stuff in gear. We're gonna get new experts. We're gonna do X-Y-Z. You're gonna get back in there and you're gonna fight the fight. That's what you're gonna do.”

And so that day, I, I remember hanging up the phone, and I just had this moment of just, you know, sobbing, sobbing, sobbing these, like, great heaving sobs that I had just gotten so used to at that point. And when that was all done, I just sort of put my head up and I thought, “You know what?” I call this, now, when I think about it, my Scarlett O'Hara moment because I just kind of decided that, “Alright, you know what, I will go back to trial. But with God as my witness, I will never be like this again.”

Emily Silverman

Hi, Gita.

Gita Pensa

Hi, Emily.

Emily Silverman

So, Gita, when we were talking earlier, you described that you embarked on this journey to educate yourself about medical litigation.

Gita Pensa

Yes.

Emily Silverman

Tell me what were the first few steps of that process.

Gita Pensa

One day a doctor that I didn't, I wasn't, I was friendly with, one day, he said at sign-out, “I have something for you.” And he took this book–this self-help book–out of his bag, and he handed it to me. And he said, “I've been through what you're going through. And I thought this was helpful. And maybe you will, too.” All at once was this realization that maybe I hadn't been outwardly holding it together as well as I thought I had. And a little bit of shame, of, like, “Oh, God, everybody, everyone must think that I'm, you know, losing it and someone thinks I need a self-help book.” But I did not read it. I took it home and I was thinking, like, “What do I do with this?” I think I hid it, but I hid it in a place that I would see it, periodically. So I put it in my bedside-drawer table. And when I would open it, I would see the title, and the title was, When Good Doctors Get Sued. And just the title that, you know, this happens to good doctors, like, that was just so reassuring to me that for a while I just kind of hung on to that.

And honestly, I think it was a couple of years before I took it out. And I think it was really around the time that I realized I was going to have to go back to trial. I mean, it was sort of after hanging out with my lawyer and realizing, like, I need to, I need to get my stuff together because I can't fall any further into this hole. Or I don’t want to, because I'm afraid of what will happen if I do. And so that was the start of it. And I think just that, like, cracking the spine, sitting down, and reading a few pages, and realizing, like, “Oh, people do know what this feels like! Someone out there took the time to write a book about it. Maybe this will help.” And that was truly pivotal. And so, you know, taking down this facade of like, no one can help me. Like, I don't understand why I can't cope with this on my own. I should be able to do that. I carry all these other things. Why can't I do that? And allowing myself to just sort of, it almost felt like an indulgence, but to like indulge in this, to spending some time with this book. And it was really eye-opening. This wasn't just about the litigation. There was a lot more behind it in terms of how I thought of myself as a doctor, what I thought about the litigation process and what it meant about me, and realizing that I deserve to feel better. I didn't have to let this consume me. I had suffered enough–there was actually a limit on the amount that I needed to let this derail my entire life. And finally got to this realization that “Huh, like, maybe the way doctors think about litigation, in general, can be changed. Maybe there is cultural changes that we can make. Maybe we are just inculcating shame and distress that doesn't necessarily need to be there into a process that yes, it's a process that's fraught already. But so much is laid on top of it. From what we're taught and the way that we behave in medicine around litigation, we'd basically the isolation and the stigmatization, when it happens to virtually every doctor who practices until they're sixty. You know, if you're in any kind of middle to high-risk specialty, most people will be named at least once. Like, why aren't we talking about this? Why aren't we addressing it?” And so coming to a place where I had started cultivating different habits of thought about it, but the books only went so far, they really just let me understand that this is a really common shared distress that physicians have about litigation. But it didn't really give me a lot about how to dig out of it. But the first step, I knew, was eroding the shame that medicine as a culture has, like, built into the system. And the way that I thought it would be best to address that was having people talk about it.

Gita Pensa [excerpted from the L Word podcast]

"Welcome to the second episode of Doctors and Litigation... Gita Pensa... And this is an L word…”

Emily Silverman

So, tell me about the decision to start The L Word.

Gita Pensa

My trial was set to start in 2018. So in 2017, I went on social media and I started asking physicians if there were people out there who would be willing to share their story for a project I had in mind. And I was completely blown away by how many doctors reached out, you know, they wanted to talk about it and it was, like, no one had ever asked them before, because I'm pretty sure no one had. And then I just started doing interviews, like one after another. I think I've done probably sixty, like, formal recorded interviews. And eventually, the idea came to me that, like, this should be a curriculum. You know, I wanted something where you could just press “play,” and be alone in your car, and listen to people talk to you about how what you're feeling is natural, that it's going to be okay, and also imparting the information that I feel like you need to know,

Emily Silverman

it sounds like, in your story, there wasn't really a mistake. You did, you did the best that you could with the information that you had at the time, and then the patient, unfortunately, had a terrible outcome. But, I was going to ask, in cases when there is a mistake involved–and of course, the word “mistake” is really mysterious and how do you even define what that is–but let's say there is a terrible mistake, something was missed or, or misdiagnosed, how does all of this shift in those situations? Or does it not, at all?

Gita Pensa

One thing I do want to make a point is that, when I talk about the suffering of the physician who has cared for a patient, it in no way negates the suffering of a plaintiff or a patient who has been harmed in some way. And it's rare for that patient to be able to understand a cascade of events that led to something that has caused them pain, or suffering, or even the death of a loved one. Part of why these conversations are difficult to have, like, openly is, is exactly that. Most of us are greatly skilled and practiced in what we do and we operate every single day in areas of gray. But we demand perfection. So when you are expected to always be right, or we are operating with imperfect resources, and, who knows, unreliable historians, when we are over-tasked and under-resourced, when we are just trying every single day to keep it together, and something bad happens, I don't think any of us make excuses for ourselves. And my intention is not to suggest that we should. That's not possible for most of us, just as, like, thinking, feeling, sentient human beings. But I do think there is a place where we can allow ourselves some grace, of understanding that we were doing the best we could, in what is a very difficult arena. There is no way to be right all the time. And all of us will have made mistakes by the time we're done with this. But some of us will have to suffer more for them, because it was just our turn to have something bad happen that happened to have more serious consequences than another time that someone else made a mistake. I'm not suggesting that we sweep those things under the rug, but I am suggesting that we all deserve to process those events, to grieve and to have some compassion for ourselves. Because that is greatly left out of it, I think, when there is the suffering of the plaintiff or a family member to be reckoned with. It seems like there is no room for the physician to feel that way.

Thomas Germano

So I'm an emergency physician in Rhode Island. The patient had come in one night complaining of a low to moderate-grade fever and a cough and some mild shortness of breath. There was no radiologist on duty. It was a small community hospital outside of Boston. So I read the x-ray as no acute pathology. And my discharge diagnosis for the patient was “viral syndrome.” I did not opt to put the patient on antibiotics, and I told him to follow up with his doctor in three to four days if he was feeling no better, and to return to the ED if he was doing worse. That's all I really know about him–until, of course, two years later, when the subpoena showed up and I was named as a defendant in a wrongful death lawsuit. The patient's widow brought a complaint against me and the hospital. And ultimately, the case was settled out of court and I think they settled for a quarter of a million dollars against me. And the case went away.

Maybe five years later, I was working at another hospital in the vicinity nearby. And a woman signed in. And I remembered that her name was a bit unusual. I had the widow of my original patient, who had brought a lawsuit against me, and now she was signing into my department as a patient. And so I had some soul-searching to do. Was I going to go into the room and identify myself and wonder if she would recognize my name? And then what would that lead to? You know, with me potentially being her doctor? Or should I approach one of my partners to just take the case? And I sat out in the hall for, I don't know, five, six minutes thinking about this. I so badly wanted to know what happened to her husband. You know, what did he think of the care that he got that night in the emergency department? Did he think I blew him off? Did he think I was reasonable? And, then, what was the backstory? What happened to him after he had gotten home but before he got so sick? And were there any other things that led up to his visit that I had not known about? Or what medical history had I missed on this guy?

Anyway, I sat out in the hall thinking about whether or not I was going to go into this room and introduce myself. I mean, what would you do in that situation? And after thinking about it, I thought, you know, “I would so love to talk to this woman.” I mean, I wasn't angry at her. I mean, she lost her husband, she had children to raise on her own. And I couldn't give her back any of that. And I think that every physician wants a good outcome for their patient. So I wanted to let her know that I was sorry. But I also wanted to let her know that I thought I had done a reasonable job. I wanted to hear her side of it so badly. After spending some time in the hall and thinking about it, I decided that it could go really badly, and I asked one of my partners to see her. And so I'll never really know.

Alex

Not long after I started practicing as an attending, I had a surgical complication. It's not an uncommon complication, it poses no long term health risks, but it can affect the quality of life of the patient. I know it's vague, but I'm trying to keep this anonymous. I was helping the patient work through it. But then they were lost to follow-up and I assumed it was because their symptoms had resolved. That was until I received a summons and complaint from an attorney. Shame. Shame for the complication. And shame for being a jerk. Being a jerk? Yes, being a jerk. Why? Because we're taught in our training that the best defense against litigation is a good bedside manner. Nobody sues a doctor they like. So, not only am I an incompetent surgeon, but I'm also an unlikable piece of garbage. I wanted to quit medicine. Sometimes I still want to quit. Per The Nocturnists–yes, I read the assignment–Brene Brown said, “Shame cannot survive being spoken.” Could I speak to anyone about this? No! No! No! Why not? We're not allowed. Whoever we tell, we need to be deposed. So the shame survived.

Gita Pensa

Somewhere around then a colleague emails me about a charity ballroom dance competition.

Sam Osborn

This is Gita Pensa once again.

Gita Pensa

And they call it “Dancing with the Doctors” and basically, like, it's like “Dancing with the Stars.” They match you up with a professional dancer and you train for three or four months. And then there's this big gala and you fundraise. But this colleague of mine had won the year before. And she was very, like, “I think you'll like this. I think this would be great for you. You know, I think you should check it out.” And I was gonna delete it again. And then right before I did, I noticed the date of the gala was right before my trial. I thought at the time, like, man, you know, maybe this would be good for me. As terrifying as it actually is, like, maybe this is the thing that would have to keep my mind off of, off of the litigation and give me something else to focus on that isn't actually work. And all right. So I filled the thing out, and I sent it in, and I was, you know, I had this moment afterwards like, “Oh my God, what did I just do?” But then, then I was, honestly, I was in it to win it.

On the day of the gala, you know, so many of the nurses that I work with came. A third of that community hospital staff came. They rented a party bus, basically. Like, they were completely lit. It was so great. My family came, my friends came, so many people came to support me, and all of them knew why I was doing it. I had been very, very open and honest about what was going on. And, and that made it, I think, all the sweeter. I danced well. And I won, really, the fundraising award. I raised $25,000 For the free clinic! And overall, that night, they made over $130,000! It was just, it was, it was the experience of a lifetime. And it was just the thing, it was absolutely just the thing I needed. I just rode that wave into court.

I mean, we, I was nervous, of course, like you can't get rid of all the nerves. But I was very well prepared. I'd rehearsed for that role. It is a role. And I had, I knew how to play my part. I actually invited my residents to come, like, to watch me testify. “I'm, like, I'm going to tell you a day that it's going to be. I don't know when you're going to get another experience like this. Kind of, like, you need to, you need to learn about this.” But in the end, I just, I wanted to do it better. And I knew I could. This is a twelve-year odyssey. And my kids now are teenagers. They'd grown up with this. And they knew what it meant to me. And I think my older girls, who were, who were teenagers, were watching to see, you know, and I wanted to be this role model of, you know, grace under pressure. And, and I did, I have to say, like, I am very proud of the way I testified. I think that I handled myself well in court. It was a completely different experience the second time around. I knew what I was doing.

All the nurses who would come to that ballroom dance thing, like, they would come to court. Which is interesting, because they polled the jury afterwards. And they thought that that was, they thought that that was–they didn't understand the medicine involved because it was complex and they don't know medicine. But what they knew was that I had people coming in every day and sitting in the back, who, you know, maybe they were coming in their scrubs, or it was clear that they were there for me in some way or other. But they looked at that and they thought, “Well, this is a doctor that people seem to love. Maybe, maybe we'll side with her.”

Still, even if I was prepared, it was still so hard to listen to, you know, these, you know, opening statements or expert witness testimony- just hours and hours and hours and hours of how bad a doctor you are, how bad a person you are. And it's really hard, even when you're prepared for it, to, to keep that armor on. Then it was so nice to have people who heard those things come back to me and say, like, “That's not the truth. That's not who you are. That's not who we see when we work with you. You just need to get this stuff behind you and come back to work where you belong, with us. And just, you know, don't listen to that stuff.”

And I did win a second time and they did not pursue an appeal. So now I've released most of the podcast. It's sort of meant to be this independent curriculum–the psychological and practical preparation required, I think. It's really kind of just the basics. But part of recovering from all of this is finding some little nugget of good so that I don't feel like twelve years of this were just a complete waste of my life–talking about what happened, sharing my experience, but also trying to be someone who can educate people. I am grateful that things unfolded the way they did. I would never say I'm happy that this happened. But I do think in some ways that on the other side, I have come out a much more, hmm, what's the word, that you can change and you can learn to be happy again.

Emily Silverman

Thanks for listening to The Nocturnists’ Shame in Medicine: The Lost Forest.

To contribute your reactions and reflections to our shame series, and to access additional resources like transcripts, discussion guides, and more, please visit our website at thenocturnists-shame.org. Shame in Medicine: The Lost Forest was co-created by me, Emily Silverman, as well as Will Bynum and Luna Dolezal. Our producers are Sam Osborn and Molly Rose-Williams, with additional producing by Adelaide Papazoglou. Sam also edited and mixed the series. Thanks to medical student producers Corinne April Iolanda Conn and Nikhil Rajapuram, production coordinator Penelope Lusk, impact campaign manager and assistant producer Carly Besser, and Exeter team coordinator Alice Waterson. The Nocturnists’ executive producer is Ali Block, and our chief operating officer is Rebecca Groves. The series illustrations are by Beppe Conti, and the music comes from Blue Dot Sessions.

Shame in Medicine: The Lost Forest was made possible, in part, by the Wellcome Trust and the Shame in Medicine Project at the University of Exeter. The Nocturnists is supported by the California Medical Association, a physician-led organization that works tirelessly to make sure that the doctor-patient relationship remains at the center of medicine. To learn more about the CMA, visit cmadocs.org. Our show is also made possible with donations from listeners like you. Thank you so much for supporting our work in storytelling. If you enjoy the show, please follow us on your favorite podcast app so you don't miss an episode. And while you're in there, you can help others find us by leaving us a rating and review. To contribute your voice to an upcoming project or to support our work with a donation, visit our website at thenocturnists.com. I'm your host, Emily Silverman. See you next week.