First published in The Lawyers Weekly September 3, 2004, Vol. 24, No. 16
What is care-giver burnout, and why does it matter to personal injury
lawyers? Pioneer researcher Christina Maslach described burnout as "The loss of
concern for the people with whom one is working ... (including) physical
exhaustion ... (and) characterised by an emotional exhaustion in which the
professional no longer has any positive feelings, sympathy or respect for
clients or patients."
This article is concerned not with the many causes that contribute to care-giver
burnout but with the medicolegal consequences in general, the adverse effects on
patient care in particular.
The physical, mental and emotional health of the medical and nursing professions
is relevant to medical malpractice plaintiff s counsel because it has a material
effect on medical error rates.
US malpractice insurers take physician burnout very seriously, and the Canadian
Medical Protection Association could usefully give it more attention in its Risk
Management activities.
For lawyers as consumers of health care there is also reason for concern.
U.S. medical interns' maximum working week has at last been reduced - to 80
hours, which is twice the maximum permitted for airline pilots.
Canadian physicians' suicide rates are more than twice those of the general
population - and are even higher for female physicians.
American Medical Association researchers found that 10% of U.S. physicians were
impaired by dependency on alcohol and drugs.
In a 2003 questionnaire by the Canadian Medical Association, 45.7% of Canadian
physicians fulfilled criteria for being in the late stages of professional
burnout. In some physician populations, rates of up to 60% have been recorded.
What are the consequences of burnout? Burned-out care-givers personally suffer
exhaustion, decreased productivity, reduced job satisfaction, lower self-esteem,
more physical symptoms, and more troubled family relationships.
Some sufferers become angry, irritable, others quiet and isolated.
Obsessive workaholism is common.
Their family, friends, staff and patients experience the care-givers as
ineffectual, spending less time with more patients, showing clear signs of
depersonalisation in relationships.
Unrelieved, burnout may result in additional problem behaviours including
alcoholism, drug abuse, eating disorders and suicide.
What happens to their patients and clients when care-givers are burned-out?
Physicians, nurses and other health professionals become more error-prone, less
discriminating, less accessible to help and more likely to be sued.
Medical error is inevitable, and not all avoidable error arises from substandard
care. However, the impaired functioning makes the burned-out care-giver more
prone to inadvertently harm patients.
Contributory factors include diminished energy, lack of attention, taking
dangerous short-cuts and making unwarranted assumptions.
Not only are errors of both omission and commission more common, but the
burned-out caregiver has impaired error-detection skills. Where self-monitoring
could previously detect and head off or minimise the adverse effects of medical
mistakes, decreased self-awareness compounds the problem.
The burned-out physicians are to a degree aware of the their impaired
functioning, and this contributes to their loss of self-esteem.
Because of this lowered self-esteem and depersonalisation, caring feedback from
colleagues is liable to be perceived as personal criticism and therefore be
rejected.
Where previously co-workers could point out the possibility of error, this
well-intentioned guidance is now too threatening to the wounded healer.
Colleagues in general, and subordinates in particular, may become more
error-prone as a result of the increased interpersonal tension and loss of
collegiality.
A tense atmosphere in the Operating Room may distract otherwise well-functioning
coworkers from attention to detail.
Whether or not the burned-out care-giver's care was substandard, and whether or
not substandard care has caused injury, patients who are upset by the
deterioration in interpersonal skills, the healer's lack of empathy, are more
liable to sue following an adverse outcome of treatment.
For a defendant care-giver, being sued for medical malpractice is a major
pre-occupation, stress and distraction. A physician who is being sued is at
greater risk of future errors - and the cycle is complete.
Part of the problem is that most of the medical malpractice iceberg is hidden.
In a small to medium size Canadian hospital, there might be only one death per
month arising from medical error that is not only avoidable but also results
from substandard care.
In aggregate however, avoidable medical error is one of the commonest causes of
death and serious injury, particularly in the elderly.
The practical implication for plaintiff medical malpractice counsel is that the
defendant caregiver may have become temporarily or more permanently impaired for
a variety of reasons.
Undisclosed impairment, burnout and their complications should be routinely
explored at examinations for discovery and at trial.
The rationale is that a hospital's Medical Review Committee is required by the
Canadian Hospitals Act to undertake surveillance and formalised annual review of
the competence of physicians and surgeons who have admitting and treating
privileges.
Failure to detect impairment and restrict or suspend privileges arguably
represents substandard care by a hospital.
If arguably negligent physician error has occurred in the hospital setting, the
hospital should be routinely joined for credentialing when the Medical Review
Committee knew, or ought to have known, that the physician's professional
functioning was impaired.
Burnout is common among caregivers in general, physicians in particular.
Although poorly documented, it likely makes a substantial contribution to
negligent error by health professionals.
Plaintiff counsel can usefully pursue more actively this litigation strategy -
to the greater success of medical malpractice actions and for the protection of
the impaired defendant physician's current and future patients.