by Mark A. Fogg, General Counsel, COPIC
Featured in the July-August 2019 Colorado Medicine Colorado Medicine.
I’ve spent a lot of time working on attorney wellbeing issues. Quite naturally, when CMS asked me to write an article on some of the common struggles shared by physicians and lawyers, I jumped in. So, here I sit at 1 a.m. writing on wellbeing. Hmm…does the term “oxymoron” come to mind?
I’ve represented hundreds of physicians in medical liability cases, many involving trials. I view doctors as kindred spirits: tough decisions, big impact on others, not enough time, and most went into their profession for the right reasons – service and a desire to help others. “I couldn’t stand your adversarial process,” many physicians have said to me. My adversarial process pales in comparison to yours in the struggle with sickness and death.
I admit, a great deal of stress on physicians is imposed by my profession. My clients were on a spectrum between being so upset they were sued that they could not see straight to being unable to cope with a patient suffering an adverse event even though the care was pristine. Some clients called me daily and others were in such denial they had not opened the last 20 letters I sent.
A high-ranking physician regulator once asked me if I could make one transformative change in the medical-legal system, what would that be? Without hesitation, I responded, “Take the fear out of the legal system for physicians.”
Despite best efforts, physicians face a high likelihood of dealing with a claim or lawsuit during their career. The stress, frustration and anger that arises is understandable. In my role, I’ve always tried to be an advocate to help address these feelings, and this has allowed me to see the common afflictions that plague both our professions, which far outweigh any differences between us. Attorneys, like doctors, are suffering from chronic stress along with record rates of depression and substance abuse. Early exit from our professions is more common than others.
There is no question that we need to assist those suffering with supportive programs and build professional cultures to encourage seeking help. But we also need to recognize that there are core values of our professions that are being undermined: grit, adaptability, resilience and flexibility. We need to retain these core values to maximize the positive traits of healthy professionals.
We are discussing this robustly in the legal profession. The American Bar Association Task Force on Lawyer Well-Being issued an extensive report recognizing that lawyer wellbeing is “a continuous process in which lawyers strive for thriving in each dimension of their lives.” This includes emotional, occupational, intellectual, social, physical and spiritual dimensions.1 In an interesting study published in The George Washington Law Review, the factors of autonomy (being able to be authentic), relatedness (interaction with others), and competence far outweighed the often-lauded factors of income, partnership, total billable hours and other seemingly objective benchmarks in achieving lawyer wellbeing.2
I believe these ideas relate to physicians as well. The high demands placed upon them can cause them to neglect their own personal wellbeing. Addressing this is not just about focusing on the individual. It also requires an examination of system changes and how healthy professionals make economic sense.
In a task force under the leadership of Colorado Supreme Court Justice Monica Márquez, we formed a “making the business case for wellbeing” committee, which is creating an attorney wellbeing recognition program for law leadership to follow best practices in areas such as mentoring, alternative fee arrangements, and minimizing old hierarchical, vertical structures.
All participants in the health care system must understand that it makes societal and economic sense to promote healthy physicians. We need to identify and instill those practices in our systems that strengthen our core values as professionals.
- American Bar Association, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (2017).
- Lawrence S. Krieger and Kennon M. Sheldon, What Makes Lawyers Happy? A Data-Driven Prescription to Redefine Professional Success, 83 Geo. Wash. L. Rev 554 (2015).