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: Conversations." I'm Emily Silverman. Today, we're diving into a topic that many physicians dread, malpractice litigation. Joining us is Dr. Gita Pensa, an emergency medicine physician and expert in the stresses associated with malpractice litigation. You might recognize her voice from our "Shame in Medicine" series where she shared her personal 12 year odyssey into litigation in the episode on trial. It's a journey that transformed Gita into both an advocate and educator for doctors navigating the unfamiliar and disorienting world of malpractice law. It also turned Gita into a storyteller, inspiring her to create a podcast called doctors and litigation, The L Word through the podcast, Gita brings together stories and interviews from doctors, lawyers, patients and more, helping to illuminate the ins and outs of the malpractice system, including its deep flaws, what to expect when you're going through the process and more. Gita and I also discuss a new documentary film that she appears in called a world of hurt, how medical malpractice fails everyone. The film was created by Emmy nominated physician filmmaker, Dr Mark Brady, alongside medical students Alex Homer and vinesh Kasturi, it uses three case studies to paint a portrait of malpractice law and how it impacts both patients and clinicians. A quick note, our discussion of the film does include themes of suicide, so please listen with discretion. In our conversation, Gita shares insights on how physicians can prepare for litigation, remain resilient throughout the process, and more importantly, how we can work together toward a more compassionate and sensible approach to malpractice. But first, here's an audio excerpt from the film, "A World of Hurt: How Medical Malpractice Fails Everyone"

[Excerpt Audio from "A World of Hurt: How Medical Malpractice Fails Everyone"]

Amanda Grieshop  

Megan was my younger sister. We were super close. She was, at the time, living with her boyfriend. They were fixing up her house, plans to get married, and you know, she was really in the prime of her life when she had the stroke. I was very concerned when I heard she was going to the ER, because that was very different than any other migraine she'd ever had. They were always we were always able to take care of them on our own. I and I had never seen my sister in so much pain. Megan had a CT scan that was red as normal, and when I saw that she'd been discharged, I had some relief, because I trusted them. And I thought, Okay, well, they know what they're doing. So the next morning, I had another text from Megan saying, This migraine never left. I think I need to go back to the ER Megan was in the ER room for many hours before another CT was even talked about. It was about midnight, and the neurology resident came in and started asking Megan some questions. And asked her, can you tell me your name? And Megan said, 10, 987654321, and I knew something awful had happened. Sorry.

Attorney Chad Engelhart  

Chad Engelhart, appearing on behalf of the estate of Megan Barrett, also present as Amanda Grieshop, the personal representative of the estate Doctor, would you please state your full legal name for the record.  All of our cases start with a bad outcome in a clinical setting, then our job is to look at the at the specific facts of the case and identify whether that bad outcome was simply an uncertainty of medicine or a physician caused injury because of delay or an action that could have been and should have been prevented with exercise of reasonable care by the physician. Is this the Megan that you remember?

ER Physician  

 I can't recall.

Attorney Chad Engelhart  

 You don't remember her as a person, just at the events.

ER Physician  

 I remember the events, Yes. 

Megan Ranney, MD (Dean, Yale School of Public Health)  

The medical malpractice system - The point of it is to try to provide compensation for patients or family members who are hurt because of negligence or bad things that happen in medicine and in an ideal world that it also dissuades or serves as a disincentive for errors happening in the first place. Unfortunately, it doesn't really work that way here in the US.

Emily Silverman  

I am here with Dr Gita. Pensa. Gita, thank you so much for being here.

Gita Pensa  

Hi, Emily. I'm really glad to be here.

Emily Silverman  

We were so fortunate to have your voice featured on the Nocturnists Shame series, specifically in the episode "On Trial" which focused on the topic of shame and litigation. Maybe you can just recap a bit about that personal story and how that got you interested in the topic of litigation and medical malpractice.

Gita Pensa  

I am an emergency physician by training, and when I was about five years out of residency, I saw a patient, and that patient would actually change the course of my life. I was working in a small community hospital at the time as a nocturnist, actually, so I would be the only doctor in the hospital at night. That meant I was running the emergency department, and I would also go up to the floor and put out fires there, and I might have to go to the ICU. We had a six bed ICU, and no one in house, and I might have to take care of that. And we had an L and D and no doctor, no OB in house, so sometimes they'd have to leave and do that. And it was terrifying and exhilarating, and I really felt like I was doing what I was called to do. And then one night I was about five years out of residency, I was working a night shift, and I saw a young woman who was about 30 years old. She was an engineer, and she came in with this really weird set of complaints. And the long and the short of it is, I wound up discharging her after much consideration, and I spent a lot of time puzzling over this, and an hour after she got discharged, she had a pretty significant stroke. And so that began my foray into litigation about which I knew nothing. So when I was named in a lawsuit, I just completely crumbled, and I didn't know the first thing to do. I'd never been educated about it. In the least. I'd been told litigation happens, but I couldn't name anyone who had been sued, certainly not among people that I had trained with, and that was the start of a process that wound up taking 12 years to get through. Their initial demand was $28 million there was a lot of fear and anxiety around that. I wound up going to trial in 2011 there was a verdict in my favor. It didn't feel as good as that sounds, I went back to work pretty miserable. And it wasn't until 2015 when I found out they had overturned my verdict in an appeal and that I was going to go back to trial that I really, truly fell apart and decided that I needed to do something, because I had been in a deep hole for a long time, and I was either going to die at the bottom of the hole or I was going to figure something out. And so the next three years until I went on trial in 2018 were spent as a study of how does one come out of the hole and become better at this and better at life while dealing with this.

Emily Silverman  

So part of that personal study of how do I pull myself out of the hole entailed talking to people, talking to doctors, talking to lawyers, gathering information about what is this world and what is this process, and what are the strategies that we can use to go through the process while also taking care of ourselves. So tell us about that information gathering process, and at the time, did you feel like it was just for you, or did you have a premonition that this was information that you were gonna eventually put together and share it with others.

Gita Pensa  

Well, at first I would say it was just for me, and the first steps, I wasn't talking to anyone early except for, you know, I wound up getting a therapist, and eventually I got coaching. But it wasn't until I really felt like I could handle the shame that I started talking to people and talking to other people about litigation, and I got the feeling that we were approaching this all wrong, and once I realized that I was not unique in my suffering around this, and that indeed many people around me had been struggling with this in silos of their own, because we are instructed to not talk about it, that I really started to think, wow, I have developed a different mindset about this, and at the same time, also developed a skill set around being a defendant, and and if I have learned these things, then maybe they can also be taught. And that was when I started thinking about a project where I could interview other doctors about their experience in it, and then perhaps lawyers and psychologists, psychiatrists. And make something out of it that might teach other people some of the things I had learned, and I learned how to podcast and how to edit and things like that. And so then wheels started turning. What can I do with this, maybe in a new way that would connect with people on an experiential and emotional level?

Emily Silverman  

So the podcast you ended up creating is called "Doctors and Litigation: The L Word", tell us about putting that together. 

Gita Pensa  

Well, I didn't think anyone was going to listen to it. So what I did first was go on social media, and I went into a bunch of different physician groups, and I just posted this query as to whether or not anybody who had been through litigation and their cases were over, if they would be interested in talking about the experience of litigation. I didn't want to know about their cases. I wanted to know about what it felt like, what they learned, what they would tell other people about the experiences, and I just put it out there. The first stop was I was going to create a lecture around it. I hadn't really thought about creating a whole series, and then I was just blown away by how many people got in touch and wanted to share their stories. And so I wound up doing over the course of really a couple of years, somewhere between 50 and 60 interviews with doctors. And not all of those made it into the podcast, but some of them that were really more compelling, I really started thinking like, gosh, like, what if I could make a curriculum out of this where you could start at the beginning and go all the way through, and then you would have a pretty good idea of what this whole thing is about, both the emotional experience and maybe a little bit about how to handle it strategically and the skills that you would need. So then I did have the idea of, like, okay, maybe I can make this into a series. And I did not know if anybody was going to listen to it. I really just was doing this in my own spare time, which I didn't have a lot of frankly, but just as a passion project, I did all the editing, I did all these interviews. I had fun selecting the music, and it was more of a creative flex. I did not expect what happened to happen, which was that it started getting passed around a lot, to the point where I started hearing from people. First, people would just reach out because they wanted to have a conversation, because they finally felt like someone got it, but they would look me up at I was at Brown. They start looking me up at Brown. And then people started writing with more ideas, like, Can you cover this someday? Can you cover that someday? And then lawyers started getting in touch. And then someone got in touch and said, Hey, I was assigned your podcast in my master's in healthcare leadership course. I just want to tell you a couple of thoughts I have about it, and really started getting a lot of traction. And so now I know that it's used as a teaching tool in a lot of residency programs, in master's programs. Insurers use it for newly named defendants and so, yeah, it's become a useful tool, and I'm really pleased, really pleased with what happened with that you.

Emily Silverman  

You said earlier that as you were having these conversations with doctors and lawyers and others that you started to get this sense that we're doing this all wrong. Can you give us a very high level assessment of the United States our medical malpractice system? What is it supposed to be doing, and what is it actually doing?

Gita Pensa  

So the medical malpractice system is supposed to be a system by which patients who have been harmed by medical negligence can be compensated in some way, and it's really supposed to be more transactional than punitive for the most part, we do also have this idea that somehow litigation will serve as a deterrent for bad medicine, and neither of those things are happening the way they ought to, and in the current system that we have, it's very adversarial. As soon as someone has a question about their care, they often can't get the answers that they need from a hospital, and they feel like their only recourse is to go to a plaintiff's attorney. The plaintiff's attorney might consult an expert witness who has a vested interest in continuing along in that case and being billed by the hour. And so there is a slant towards sure you can make a case out of this, and the plaintiff's attorney then will bring. Map back to the plaintiff and say, okay, my medical expert thinks that there is malpractice occurring here, and so let's go forward with this case. And from the time that starts, the patient and the doctor usually don't get to talk to each other again, everybody sort of squares things off, and then the poor defendant, whoever they are, like now, maybe there was negligence, maybe there was not, but a bad outcome is often equated with medical malpractice, and since there is no discussion about why things happened the way they happened, now, we're set off in this adversarial thing, and it can go on for years and years and years and years, and in our current system, plaintiff's attorneys only get paid through settlements and verdicts in their favor at trial, and they will take, often, 40% of that money, plus expenses sometimes and many times, it takes years for the plaintiff to get whatever money that they may really need to help with whatever happened if it is deemed that there was negligence or that someone was truly responsible for this outcome, and on the other side, the defendant, the clinician, the doctor, has no understanding of this process, of why it's taken so long. There is a real human suffering after an adverse event, whether or not you feel responsible for the event. There is psychological manipulation and emotional manipulation that's baked into the process that the clinician doesn't understand. They take the process very, very punitively, and that it means something about them as a doctor and them as a person, when, in all reality, the medicine gets quite distorted and becomes really secondary in the process. And so we come in with this set of beliefs that this is a system by which there will be justice and someone will be able to see what we did and say, Okay, no, this care was good, even though this bad thing happened a lot of the time, it was good care. And it doesn't work out that way. And so the physician is usually quite disillusioned and really scared, like really scared and fearful when it's a serious case and the numbers are high and they start to realize, gosh, no one in the system knows anything about medicine, and the only people that do are being paid for their opinion. It starts to feel really unfair and very, very isolating, because you're told not to talk about it.

Emily Silverman  

You said that the minute a patient or a family has a question about their care or care that they've received, it's almost like triage to risk management and automatically shuttle down this formal litigation pathway, and then once that process begins, there's virtually no communication between the doctor and the patient. How does that happen? How can it be that a doctor and patient can't have a conversation about what happened? It seems like actually a lot of patients who end up suing, maybe the money is a part of it, and I'm sure in many cases it is, but it seems like another part of it is like just wanting to have that conversation, like wanting to understand what happened, and have that human to human conversation. And it just seems like that is impossible, because the minute any red flag goes up that the patient is thinking something went wrong, the doctors suddenly can't even talk to them. Is that accurate? 

Gita Pensa  

It depends on the institution. That is certainly true historically for quite a number of years, because risk or once there was a claim filed with an insurance company, the advice that everyone has been given is okay now you cannot talk and certainly once litigation has started, you can't talk to each other. It's not allowed. Now, sometimes there is an adverse event that you don't even know about. For me, in the emergency department, I saw this person, but I was not aware that anything terrible had happened to her, and so I was never even given the opportunity to talk, and no one ever asked me. But sometimes you do know something terrible has happened and in some institutions, historically, because lawyers think differently than doctors. You've seen the people on the news, no comment, no comment. We got no comment. Like, that's how they're trained to keep a situation under wraps. It wasn't until the introduction of this idea that, jeez, maybe this is doing more harm than good that some states started adopting a little more caring approach to these things, and we can talk more about other programs, the Michigan model, things like that, where they're trying to come closer to this realm, where a physician and a patient could really talk to One another openly without fear of what's going to happen if I say x, if I say I'm sorry, if I express any kind of condolence, will it be held against me? And that is a direct consequence of this terribly adversarial system that we've set up in my mind, if something terrible happened to me. And then my physician just ghosted me afterwards, or the hospital ghosted me afterwards. I think that would feel pretty bad.

Emily Silverman  

One of my favorite episodes of your podcast, I think it was a two part series on the topic of expert witnesses, and it was such a big topic that you actually dedicated two separate episodes to it. What is an expert witness, similar to my last question, what are they supposed to do? And then, how is it actually playing out?

Gita Pensa  

Because we are tried by a jury, not really of our peers as medical people, but of a jury of lay people, and because this is not occurring in any kind of specialized courts where the judges really have an understanding of medicine, it's unfair to ask a jury to really understand the medicine behind something, and so this whole notion of standard of care has to be taught to The jury. So we bring in experts on either side to say the standard of care in this situation would be to do X, at least that's what this expert believes. Now the experts on both sides are being paid. They're being paid by the defense, or they're being paid by the plaintiffs for their opinion. What you would hope is that an expert witness would come in and just give their unbiased, unvarnished medical opinion and be informed about what standard of care actually means in a legal sense. So there is no one standard of care for a lot of things that we do, it's just like, was this a reasonable thing for a person to do? And in most states, every state has their own definition of standard of care, but in most states, it's supposed to be, what would a reasonable physician with similar training to the defendant in similar circumstances as the defendant, what would they do? Would this be reasonable? And so I make the point in the podcast that standard of care is not a plus care, even though we're all shooting for a plus care, standard of care is a C. It says C, and none of us ever want to admit to giving C level care, but that's what we're supposed to be judged by. And so even a well meaning expert might judge a case the way that we've been taught to judge cases in morbidity and mortality Conference, which is picking everything apart that wasn't perfect, and saying someone else could have done it better. That's not what they're supposed to do. And then we have the experts that we lovingly referred to as testillars, who are really just in it for a buck, and lots of bucks, actually, and will say nearly anything in exchange for a check. And I have been on the receiving end of that. It was quite shocking to me. It was really, really hard. And I think this is a very difficult thing for almost any physician entering into a serious case, because cases can't go forward without an expert to say that there was, in fact, malpractice. But as a physician, if you thought your care was reasonable, sometimes when you start reading these experts, opinions that are completely just so far from left field or so nit picky. Might be an academic person commenting on community hospital care, and the lay people can't discern that difference themselves, and so it becomes really, really infuriating. We do need experts to do this work. We need good experts who somehow can not be tainted by the money, and we need to figure out a way to get the test delays out of here because they're just messing everything up.

Emily Silverman  

And correct me if I'm wrong -But the idea is, there are physicians out there who make a career of this. Maybe they're actively practicing. Maybe they're not. I don't know if there's rules about that, but these physicians who will do dozens upon dozens of expert testimonies per month per year, and rake in millions, yes, literally millions, giving these opinions. And if I'm a pediatrician who is being sued for my care of a child, they could bring in an adult urologist or something right like it doesn't even have to be the same. It depends specialty. 

Gita Pensa  

In Rhode Island, they could. Some states have rules around who is allowed to testify as to the standard of care in a certain specialty in my state, they do not so in my trial, I had a hematologist saying what the standard of care would be for my case, neurosurgeons, opining, neurologists, the only emergency physician they could get for the first trial was some guy they flew in from Canada. The who was a test a liar. He likes to talk about stroke, and he's actually published things about stroke, but he hung himself out there. If you have a stroke case, I'm the guy you want. And man, was he slippery. It was really infuriating. But yeah, in our state, didn't matter whether the guy came from another country. Didn't matter if it was some other specialty. It's absurd, and our state has a particularly bad malpractice climate, of which I was completely unaware when I moved here, but it's almost laughable. But that's the way things are. And when you find these things out, when you are already in it, it is so disheartening, and the unfairness of it starts to really, really eat at you, and that can be dangerous. So

Emily Silverman  

I want to talk about this documentary film that you've been involved in. The film is calledA World of Hurt: How Medical Malpractice Fails Everyone. How did this film come about, and who were your collaborators?

Gita Pensa  

So first, I would like to say that I cannot take any credit for this film whatsoever. I'm in the film, and I served as an advisor for the film, but I didn't make the film. And the film, I think, is tremendous. It's open access. Now. PBS aired it a couple months ago, and now you can find it on the PBS website and on YouTube as well. And there was no money in this at all. This was completely a passion project of Dr Mark Brady and two medical students named Alex Homer and Vignesh casturi. They are both fourth year medical students at Brown right now, and the way my involvement in it came about was Dr Brady is a fellow emergency physician and also a documentary filmmaker. He's been nominated for an Emmy for another project. He does marvelous work, and he was joining Brown's faculty, and had listened to my podcast and approached me about the idea of making a documentary about medical malpractice. And I know nothing about documentary filmmaking. I'm an audio girl, so I said, I really don't know what to tell you. However, I had been teaching a podcasting elective at the medical school, and there were two students, they were undergrads at the time, but they were coming into the medical school at Brown who took this class. And they had asked me about, do you know anyone that does video, can you teach video? And I had no idea about video, so I thought of these two, and I was like, Well, you know, I could probably connect you with a couple of medical students who would be interested. And that's really all I did. I just connected them, and then once in a while, I would answer some questions and point them in a direction. And I didn't get to see this thing until pretty late in the game. Otherwise, I just would answer some questions here and there, and then I asked, Will you be our first interviewee? But these two medical students and Dr Brady during COVID, over the course of it was like three or four years of making this just did this amazing thing where they hunted down people who were willing to talk on camera, which is a lot harder than getting people to talk anonymously through audio. But they found people who were willing to speak on camera, plaintiffs and physicians, and they found these three just remarkable stories. And med students did all the camera work themselves. They flew all over the place, and I was blown away. I was blown away when I watched it. I cried so hard, even though I do this work all the time, it was so moving and so affecting. And the thing is only like 26 minutes long, but wow, I really feel like it packs a punch. Dr Brady describes documentary as a tool for mass empathy, and I think that's what it does for everybody involved in the process. 

Emily Silverman  

I  to get into the three stories, starting with the first story, or the first case. You could say we have a stroke that was missed, and in this section of the film, we learn about the three main reasons that patients usually Sue, one is a search for answers. Two is a powerful sense that they want to protect others, and three is a yearning for accountability. Do you feel like those three goals were achieved with this case? Or maybe you can talk. About the case and about the plaintiffs. Who were interviewed very generously, shared their experience about being the patient suing in this situation, and how they came away from it if they felt satisfied, if they didn't feel satisfied.

Gita Pensa  

This case exemplifies what we were talking about before, about how sometimes when there's a bad outcome and you look for answers, you are shut out. And that's exactly what happened to this plaintiff, whose sister, who's a young woman, dies after a stroke of some kind, was missed, and the only way she could get any kind of answers was with going forward with a lawsuit. And she expresses that I didn't know whether or not they really had done anything wrong. I had the sense that something was missed, and then through the discovery process, that suspicion was confirmed, and she expresses how horribly frustrating and depressing the whole thing was. She never really got any kind of closure from it. There was a settlement in the end. And what's interesting is her sense of accountability. If you don't really get to talk to anybody who's been thinking about this case, thinking about the patient who died, you could get the feeling that really nobody cared. And you know, her only sense of what would be accountable would be like if people stopped practicing. There was really no understanding of at all about how something like this could possibly happen. And I think there was a real loss for her. I really believe that if she could have talked to the doctors who were involved, there could have been some sense of accountability or closure, and that never happened. And it was terribly sad.

Emily Silverman  

I noticed that I thought that was interesting, that the plaintiff, the family, they said we went through this lawsuit. It was our full time job for three years. We went on antidepressants. It hugely impacted our family, and in the end, nothing changed. They said that these doctors are still out there practicing medicine, and it was intriguing to me that their goal seemed to be that this particular doctor stopped practicing medicine. And it made me think about just the narratives that society has about to what extent, if any, our doctor is allowed to make a mistake and continue practicing. And to what extent should we be supporting and rehabilitating people who need that versus just sniping them out of the workforce altogether? And I'm curious what your thoughts are on that goal that the family had, and where do you think that is coming from? Was it coming from the sense that they were ghosted, so to speak, and just felt really bitter about the fact that this horrible thing had happened, and nobody bothered to explain it to them. And so this was more of their mindset, or what was under that. 

Gita Pensa  

I think it's a combination of things. I think that the only thing they hear about the care is what the plaintiff's attorney tells them that the expert witness said so if your only answer, after trying to get answers, is, oh yeah, this is somebody's fault. Your sister is dead because they're a terrible doctor, well of course you're gonna think that person should stop practicing, and you feel like they must be a menace. You don't understand the medicine or the nuance or anything that's involved, and nobody objective has any interest in explaining it to you, and that fuels it for sure. And of course, there's obviously a sense of grief and loss, and anytime someone makes a mistake in medicine, or you feel like you are not being listened to. I think that was part of it. I think there was definitely a delay in diagnosis. She had to come back to the emergency department a second time. I think there's this general feeling of frustration, and I've experienced that too. I almost sued someone. My father was a patient, and I could not get the surgeon, even me as a physician. I could not get this surgeon to listen to me. I knew he had to go to the or I could not get him to take my dad to the OR, and then when he did, two days later, he had a gang in his gallbladder. And thank God, he lived. But it was hard. It was really, really hard. And I really thought at the time, like, man, if this goes south, this was absolutely malpractice, and I will come after you. There was no sympathy coming from me, and I know what that feels like I do, and there is a sense of rage and injustice. And if you feel truly like that's what happened to your loved one, of course, you'll be fueled by rage. It makes sense. 

Emily Silverman  

That's so interesting to me that you had that experience with your father that was before, during or after your own malpractice journey.

Gita Pensa  

During, it was hard not to be during. It was like half of my career, 12 years.

Emily Silverman  

Yeah. So even having been on the receiving end of an unjust system, having the accusations. Lobbed at you, feeling the shame, getting to the bottom of the hole, as you said, feeling like you might die there, and then having this experience with your father, and having the rage and saying, I'm going to come after you. It's, I mean, we can hold both of those at the same time, right? 

Gita Pensa  

Yeah, and during the course of interviewing people for the podcast, I interviewed a physician who had been both a defendant and a plaintiff in his own case, where he was suing a neurosurgeon who operated on him. That has happened several times. I know a defense attorney who sued a physician when there is pretty clear malpractice. There should be a system by which you can get some sort of compensation, or what you see to be justice, and so I'm not interested in taking that away from anyone. We do know that bad things happen, and we do know that errors occur. It's harder for the lay person who does not understand whether an adverse event was due to malpractice or not, and this general, pervasive feeling in the population that there ought never to be an adverse event, like we've set expectations about what is possible in medicine, like very, very high. But sometimes, you know, lawsuits are for things where the doctor didn't pull off a miracle, and your failure to pull off a miracle should not be construed as malpractice, and yet, the two are conflated all the time. And so yeah, we do need a system where there is a way to address harm when it happens, but this system isn't it. This isn't working. 

Emily Silverman  

Let's quickly run through a couple of the other cases before we talk about solutions. The second case, I mean, it's so devastating that I almost want to just touch on it briefly and then move on, because you kind of have to see it. But this is the case of a doctor who was already living with some depression and then was sued and tell us about what happened to him. 

Gita Pensa  

So, he had experienced an oppression. He was coming to the end of a very successful career as an emergency physician. Now, I have some outside knowledge of the case that doesn't actually really come into the film, but I do know that there was no malpractice in this case. Everything he did was absolutely fine, but the lawsuit was so aggressive and demeaning, and he was made to feel worthless and full of shame. And for someone who's already prone to depression, which many physicians are, this can be a really terrible combination.

Emily Silverman  

And I'll just add, there is a scene in the film where he's on the stand, and the questions and the accusations just keep coming. And when you say that, you're being told again and again how horrible you are. Like, that's not an exaggeration, right? 

Gita Pensa  

Like, you can see it in his face. You can see where his mind is. And unfortunately, he went home after that deposition, and his wife relates that he felt completely worthless, and the next day, he took his life. And a lot of the interview is with his wife, and you get to see some of the deposition itself, because it was a video deposition. Another thing I'll add that's not in the movie is that after her husband died, the wife, who was also a physician, was named then as the defendant, as part of their estate, so she had to continue with the lawsuit even after her husband had passed away. They didn't include that. It's almost too much, but those things happen. I think that gives you a sense of sometimes the people who are driving that bus like who would do that.

Emily Silverman  

The last case is more hopeful. This is a case of a baby with a genetic syndrome called digiorge syndrome who dies of meningitis after having a seizure in the hospital, and there's a resident doctor involved. Tell us about that case.

Gita Pensa  

That case, I think, is really just a shining light of how this could go. That baby died after the resident really didn't do what the resident ought to have done. They were called to evaluate the baby. They didn't examine the baby, they didn't turn the lights on. This is how the family recollects, and I think it's probably true based on the way the rest of it plays out. And after her death, the couple did not want to go this traditional route, this really adversarial route. They really wanted to talk to the people involved, and they went through a CRP, a communication resolution program, where they got to sit down with the hospital, sit down with people from the hospital, and actually speak with the physicians who were involved. And their real hope was to change things and to be heard and the white. Asked to speak to the resident, and this is sort of in contrast to the first story. What she wanted to tell the resident was that she wanted to forgive him. She wanted to forgive him. She wanted him to move on and learn from this and do better. And she had the opportunity to hold him while he cried. And it's a really powerful moment in the film. I still tear up thinking about it. We never want error to happen. I'm not here as an apologist for error. Everything that we want in medicine is the antithesis of error. We want to be right. We want to help. It's all why we all went into this. People want it to be absolutely scientific, and it's unfortunately not. I think you know any clinician listening to this who's practiced for a while knows that. So we've set up this expectation and this myth of error free medicine as something that's attainable. Should we always strive for it? Of course. Will we ever get there? No, I don't think so. And so we do need a path back for healing and some kind of reparations, and we need a path like that. We just don't have one right now. 

Emily Silverman  

Tell us about your vision for what this could look like. You mentioned CRP conflict resolution program. You also mentioned something called the Michigan model. What would a malpractice system look like that is less punitive and shame inducing for the physician and encourages them to improve and be better, and also offers opportunities for the patients and families to have the therapeutic conversations that they want so desperately to have, and that compensates them in whatever way they deserve to be compensated. 

Gita Pensa  

Well I'm not going to pretend that I have the answer. I don't have the answer. I do know that they do things differently in other countries. I don't know that any system out there is perfect. There are certainly things that we could do to minimize the amount of I don't want to say frivolous litigation, but litigation after adverse events that anyone who's knowledgeable about it would be able to say, that's not malpractice. That's an unfortunate and known complication of x. I think that's an important layer that we should add on there. It'd be nice if the system were actually based on medicine, and a lot of times it's not, but a system like these CRPS Michigan model, where you can talk frankly with the patient without fear, driving the bus. A lot of what keeps physicians, I feel like, from doing what I think would be ethically the right thing in these scenarios, one, they've been taught to be self protective. We're all taught risk management rules. You can't really blame us for following them, which is basically like, Okay, now you stop talking. You're not allowed to say you're sorry in a lot of states, right when we're good rule followers, but a lot of us feel a great deal of conflict with that. We want to talk with the patient. We want to be really truthful and open and honest about everything that happened and our thoughts about it. And I think that is not only the right thing to do, but it's also the best way to heal after an adverse event. It is. It's 100% the best way for all parties. Whatever healing There is to be done, you're only going to get it that way. So if we could have a system that supported those conversations, restored humanity to both sides, I mean, in a family, if somebody really hurts another person, sure you could have this schism where people never talk again, or you could have this effort where you can talk about the feelings and what has happened and owning your part of it, whatever you are responsible for, addressing whatever impact it has on the person who's been hurt and helping doing whatever you can to help that situation. That's not this system.

Emily Silverman  

And how would the money be taken care of in a system like that?

Gita Pensa  

Again, I don't have all the answers, but you do have models where physicians, institutions, everyone pays into a pot of money, and then they dole that out, and a lot of CRPS, they're run in conjunction with a traditional insurance program, and so the costs are covered. Really the same way would they be paying $270 million for? You know, you read about these crazy nuclear verdicts.

Emily Silverman  

Yes, what's a nuclear verdict?

Gita Pensa  

Oh, a nuclear verdict is a verdict where the award that's given to the plaintiff is well in excess of what any predictions of a reasonable number would have been. Some plaintiff's attorneys have gotten very skilled at really bringing emotion to it and making the jury feel like this is more than about this case at hand, if you want to send a message to the medical system, if you want to send a message about whatever your frustrations are with healthcare, this is how you do it. And they come back with these astronomical numbers, and we're seeing them a little more as people become, really, in general, dismayed with healthcare. Who isn't frustrated with healthcare right now? But if you don't have a mechanism or a voice or any way to say that this is not acceptable, people can't get into their doctors. We don't have a relationship with our doctor. Our doctor only stares at a computer screen. My doctor doesn't know who I am. What's the remedy to that for them? Well, here's one. Just jack that number up. How mad are you? How frustrated Are you? So that's what nuclear verdicts, aberration. Verdicts, run away. Jury. Verdicts, those are the things we're talking about there.

Emily Silverman  

And the figures you said 270 million. Is that the highest you've seen, or does it get higher? 

Gita Pensa  

That was a case, I believe it was 270 I think the number has come down since then. And the case is an appeal, and that was a case in Florida that they made a documentary about. But you see numbers in excess of, I mean, not often. I don't want to give anyone the idea that that's happening a lot. There is a podcast episode about this particular topic. It's not something that happens a lot, but it does two things. One, it makes physicians even more afraid of having the conversations. It renders you almost helpless, this feeling of, if I open my mouth, where am I going to get two $70 million from, and I'm going to be front page news with one of these verdicts that's gonna make the news. So it drives fear, and it also, because those things make headlines, it starts to make it seem normal, just like we think it's normal for a CEO to make 10s, hundreds of millions of dollars now, like, oh, that's just how it is. So people who are familiar with that think, oh, okay, yeah, that's a normal thing to 1020, 3040, 50, $100 million like, yeah, that's what we see in the news. We need to figure out what to do about that. But that's not something that is happening a lot yet. Anyway,

Emily Silverman  

You wrote an op ed. I think it was in time. [Yeah], About how our dysfunctional healthcare system, where physicians feel incredibly rushed and overwhelmed and burned out, is an environment that is ripe for error. Of course, like you said, you'd like to think medicine is perfect and scientific, and it's not. We're operating in these really murky spaces, both in terms of probabilities and uncertainty and kind of medical uncertainty, but also systems issues that impact practically. Are we able to focus? Are we able to think? Are we moving too fast, things like that? Yeah, and what you just said about the nuclear verdict, which is a verdict like that, $270 million it's less about what the jury feels this particular family deserves, but more about sending a message, and it's like, Who is that message for? It's the doctor, really. Who is the face of it, which is what you're arguing in your op ed, when really, what would happen if healthcare executives started to have to answer for some of those verdicts, and the people who were behind some of these business models that crush physicians. Is there a world where they shoulder some of the burden of malpractice, or does it always distill all the way down the system to that front line soldier, that one overworked doctor, and they're the one who is getting yelled at in the deposition, like, how are you thinking about that?

Gita Pensa  

Yeah, yeah. I mean, the Op Ed was framed as that whole situation that you just described being a driver of more people leaving healthcare. Because when you are working in that environment, and you see things happening around you, and know that you're going to be the face of it, and people have already left, and that's probably why we're already in this situation, and when you're there trying to hold all the pieces together, you also have this sense of something bad is going to happen. I can't keep juggling all these things. I can't keep all of these plates spinning. One of them is going to drop. And people who are in a position to leave leave they're retiring early, or they're just finding some other kind of setting to work in. I think a lot of people are having those thoughts right now, the clinician is usually going to be the face of it, but oftentimes an institution is also named along with it. But you're right. The CEO isn't sitting there. Their lawyers are. But the situation where the doctor is the only face of. And feels the brunt of it is an unfortunate one when the error is largely systemic. I think about Boeing and engineer there makes a mistake, and there's some catastrophic consequences, but you never know who they are. The company is the one that's assuming the responsibility and making the changes, and I don't know that trying to punish an individual doctor in this way in this system in which you go to trial because you feel like your care is defensible for the most part. And so most people go to trial they expect to win. And so sometimes these verdicts come out when you're in the know, you're like, Oh my gosh. How did they get that message to the jury that that's what needed to happen here, when, if you know the medicine, you realize you could slant that one way. But I think a lot of this care was actually really defensible. It's a hard situation to be in, but I think it drives fear. I don't know whether people will get the kind of change they want in this way they feel like they're doing something that the plaintiff's attorney is exhorting them to do, but I don't think it's going to get them the satisfaction that they want. It will bring a healthcare system to its needs and make the care even worse. It'll probably do that, but I think if people were really solution focused, we would be having these conversations outside of courtrooms.

Emily Silverman  

Speaking of having these conversations, I feel like this topic of medical malpractice and defensive medicine used to be really in the water, like in the documentary film. I think there was even a clip of President Bush talking about defensive medicine. And maybe there was a Clinton one too. I can't exactly remember,

Gita Pensa  

We had an Obama clip. Was it Obama talking about both sides talking about it? Yeah,

Emily Silverman  

You hear less about it these days. I don't know. Maybe I'm wrong, but I feel like the defensive medicine being something that needs to be fixed. Like I just haven't heard about it as much. People are talking a lot more about coverage and Obamacare, Medicare for all those sorts of things. Do you feel like this topic has fallen out of the public discourse in a way, or am I off base?

Gita Pensa  

No, I don't think you're off base. I think it's fallen away from the central view, because there are all these other fish that need to be fried. Then we as a group have fairly limited resources, as opposed to, I mean, the plaintiff's attorney, they were pretty strong bar, and so I think it's gotten diluted, and people's appetite for it has been a little bit different as the public's feeling about doctors is changing. And I think maybe 20 years ago, the general population had a different feeling about doctors in general, and I don't know that that's going to sustain us in the future the way it has in the past, because we're running out of good will in a lot of these cases. And it's not necessarily our faults as individuals, but the system the way it is, which has become so impersonal and so inaccessible for so many people, and what people see on the news is mostly medicines failures. I think we have a lot of ground to make up before the general public is sympathetic to those things. And so I'm not saying it can't be done, and I think that we should still try to have the conversation, and that's a lot of what this documentary was supposed to do, and wading into things like writing for Time Magazine, I'm hoping to make inroads in terms of starting these conversations, but they're kind of scary conversations because people are angry, and it's hard to talk to angry people.

Emily Silverman  

Well, you have done such incredible work in this realm. I really encourage people to check out Guido's story on the Nocturnists. It's part of our shame series, and the title of the episode is on trial. We will also link Gita 's time op ed in the show notes. We will also link Gita's amazing podcast "Doctors and Litigation, The L Word" in the show notes. There's just a treasure trove of interviews and conversations and information in there for you to explore. And last but not least, we will link to this free documentary film that Gita appeared in with her collaborators A World of Hurt: How Medical Malpractice Fails Everyone." And on top of that, as if you weren't busy enough, you also do coaching and consulting. Is that right? Can you talk a bit about that? And how can people find you, if they want to reach out to you,

Gita Pensa  

Sure, they can find me at doctorsandlitigation.com and I do do coaching. I do one on one coaching. I do witness preparation work. A lot of times their insurance company or their attorney will refer them to me for that. I'm working on a program right now that I'm really excited about, and I call it LEAP, which stands for litigation, education and performance, which is an eight week course designed to teach defendants the. A skill set and mindset, self coaching, techniques, all that stuff, everything I feel like they would need to be good defendants. And I've been running that through an insurance company as a pilot program for some of their new defendants, and it's been very successful. And so I'm starting, actually with a couple of other insurance companies, seeing what we can do there, and I'm hoping at some point to make that something that's more widely available as a CME course in the future.

Emily Silverman  

Thank you so much for all you've done for physicians, for patients, for imagining a better system, for giving people resources, for saving distressed physicians, I imagine many times over from the tragic outcome that occurred with that doctor who took his own life, and, you know, hopefully creating empathy and building bridges between clinicians and families, and just trying to bring some more humanity back into this process and have these conversations. And it's just such important work.

Gita Pensa  

I really do have to give a lot of credit to the people who shared their stories for the podcast, for the documentary, and there have been a lot of people who have been cheering me on in this work, and I've stood on the shoulders of some people who did this work before, Sarah, Charles Louis Andrew, and I really invite people who care about this, who have been through it, who have a story to tell. I really think that the way that we're going to impact culture in medicine is by opening up the conversation about it, addressing the shame around it, it is a normal part of medical practice and making it feel like one is something that's within our purview, I think, and so that would be my ultimate goal.

Emily Silverman  

I have been speaking with Dr Gita Pensa. Gita, thank you again.

Gita Pensa  

Thank you so much.

Emily Silverman  

This episode of The Nocturnists was produced by me and Jon Oliver. Jon also edited and mixed. Our executive producer is Ali Block. Our head of story development is Molly Rose-Williams, and Ashley Pettit is our program manager. Original the music was composed by Yosef Munro, and additional music comes from Blue Dot sessions. The nocturnist is made possible 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, The Nocturnists is also made possible by donations from listeners like you. Thank you so much for supporting our work in storytelling. If you enjoyed this episode, please, like, share, subscribe, and help others find us by giving us a rating and review in your favorite podcast app. To contribute your voice to an upcoming project or to make a donation, visit our website at thenocturnists.org I'm your host. Emily Silverman, see you next week.