(lively upbeat music) (lively upbeat music continues) - Good evening, and welcome to "Generation Rising."

I'm Anaridis Rodriguez.

Medical malpractice has a long and complicated history in America.

More recently, this issue has been exacerbated by the pandemic through a shortage of doctors and nurses.

The documentary, "A World of Hurt: "How Medical Malpractice Fails Everyone," examines the devastating impact it has on patients, doctors, and society.

The film presents three powerful stories from the perspectives of patients and doctors who have been directly affected.

The documentary is available to stream now on watch.ripbs.org, and joining us to talk about their documentary are Dr. Gita Pensa, an emergency physician and expert in the medical malpractice world, Dr. Mark Brady, also an emergency physician and producer of the documentary, and Alexander Homer, a third-year medical student and one of the directors of the film.

Welcome to all of you.

Thank you so much for being here with us.

- Thank you.

- Thanks for having us.

- Let's start with how did this story come about?

From what I understand, Dr. Pensa, you connected the dots.

- I had Alex and Viknesh, who is one of the other directors of the film, I had them as podcasting students in an elective that I was teaching through the medical school, and Dr. Brady and I were emergency physicians together, and Dr. Brady has a long history of doing other films, and I don't know if you'll get to it, but he's Emmy nominated for another piece of work of his, and they were asking about video, could I teach them anything about video?

And the truth was, no, I could not, (Gita laughing) (Anaridis laughing) but I knew someone who could.

And meanwhile, Dr. Brady had approached me about, I have been doing podcasting and other work about medical malpractice litigation, and he had had the idea about potentially doing a documentary about that.

And so, I knew he was looking for people to work with him, and so, I tried to connect them.

- It's a very powerful documentary.

It was hard to watch for me.

The cases are very compelling and diverse.

How did you come about identifying the cases?

I know you highlighted a father and a husband, a sister and a child.

Some of them went to trial, other cases didn't.

How was that process like?

Because not all of them were in Rhode Island.

- Yeah, it's definitely true.

So Dr. Pensa connected us with some initial folks to talk to, and from then on, it was just years of Zoom meetings, phone calls, cold emails.

And, you know, unsurprisingly, not a lot of people are willing to talk about this, especially in front of a camera.

And so, that's the reason why it took so long to put these stories together.

But I think really credit to the people in the film who we interviewed, who were willing to invite us into their own homes, sit across from us after meeting us sometimes for the first time, and share those really deep moments.

And I think that that has gone on to impact the lives of other people who've watched the film- - Yeah, and Dr. Brady, you mentioned that there were also a lot of legal implications, because a lot of these cases end up with non-disclosure agreements, where people can't even speak about what happened to them publicly.

- Yeah, which is why it took so long to find people.

We couldn't find anybody in the state, or anywhere around here that could, or would be willing to go on camera, which is why we had to go to Washington State, North Carolina, and Michigan to get some more people who were willing to go on camera, and who are able to go on camera.

When a case is resolved, usually the parties, they sign a non-disclosure agreement, so you're gonna agree that you're not gonna ever talk about this again, and there's a undisclosed settlement usually, and that's the way that cases usually end up.

So finding plaintiffs who are willing and able to go on camera was very tricky, and finding lawyers who are willing to go on camera as well, 'cause they're not gonna go on camera, and say something that's gonna make them, or their clients look bad.

So it took probably a few dozen Zoom meetings over the course of probably three years to get our subjects.

- As a physician and a producer, right, you're playing, you have multiple hats in this, right, and perspectives, and insights.

What about these stories spoke to you, and why did you decide to highlight them?

- I think there are, they have two things about each story.

One, they're valuable, 'cause they're hard to find.

People, you know, you're not gonna walk up to somebody and have this conversation.

But it's a conversation that everybody has behind closed doors.

And so, it's something that's kind of, in the medicine world, it's taboo.

It's something that nobody really talks about overtly for the most part.

There's no training in medical school for how to deal with the medical malpractice system.

And two, wanted to find stories that people, there was something about the relationship that was broken, and then you can highlight the problems with the system, because you can highlight what's broken with the relationship, and between a physician and a patient, you've got a lot of trust kind of going both ways, and when the legal system gets involved, that trust is broken, and both parties usually end up the worse for it, and usually not, nothing's really better at the end of it.

So finding people who are willing to talk about something that was very, very sensitive, and opening themselves up, and being willing to talk about this trauma they've gone through was a gift from the subjects.

- Dr. Pensa, you are one of the main subjects of the film, because of your own personal experience relating to medical malpractice.

Can you share a little bit about your story, and how you ended up being a focus of a documentary?

- Sure.

I have been an emergency physician for well over 20 years, and in 2006, I was about five years out of my residency training, and I was working in a small hospital's emergency department as I would do night shifts.

And one night, I took care of a young woman who came in with a really confusing set of symptoms, and I spent a lot of time with her.

I did imaging, I called a consultant, I did a lot of tests, and I did not know what was happening with her, and then I wound up discharging her about, and, you know, she was supposed to see a specialist in an hour.

I'd arranged for her to go to see them in the morning when they opened, and she didn't make it there, and what happened after that was an entrance into a very long and protracted lawsuit, which wound up lasting 12 years, and I went to trial in 2011, and then my verdict was overturned.

I won at trial that time, and my verdict was overturned on appeal in 2015, and in 2018, I went back to trial for a second time, and prevailed again at trial.

But the whole experience to me was utterly life-changing.

I hadn't had any instruction in how to think about it, how to deal with it.

The first thing that happens is you show up in an attorney's office, and they tell you not to talk about it, but it was really, really a hard thing to carry, and I judged myself a lot for not being able to deal with it because I feel like that's what doctors do.

We just, we carry these weights around with us, and we're supposed to be able to handle some pretty tough stuff, and I had a lot of trouble with it.

And so, during the latter years, I finally figured some things out, and I realized that we should be approaching this differently within the house of medicine.

We should be teaching about it, we should be talking about it.

And so, I've made that more of a mission of mine now.

- How did it change the trajectory of your life?

From what I understand, watching the documentary, you now teach about medical malpractice?

- I do.

I made a lot of career changes looking for ways to feel better about what I did.

I really lost the love of medicine there for a while, and I wanted to quit.

I wanted to, I just, I didn't know what else I was gonna do with my life, and I had loans, and so, I stayed there.

But in an effort to kind of reinvigorate my career after a while, I joined an academic practice.

I joined Brown's faculty, and as part of that, I learned how to do new things.

I didn't have a niche.

And so, educational technology became my niche.

And so, that's where I learned how to podcast and things like that, and actually wound up deciding to make a podcast about medical malpractice litigation.

And then from there, it became, you know, in a niche way, really popular among physicians, and so, I was asked to speak and teach more.

And so, now I actually do quite a bit of that, and I coach defendants who are in need of well-being support and things like that.

- It was really interesting to learn the process, how physicians can be expert witnesses, your own colleagues, if you're going through this type of court proceeding, right?

And scrutinize how you failed to do something, or, you know, how you treated a particular patient.

Dr. Brady, I wanna talk to you about the medical malpractice system.

Where does it stand today, and why is it such a problem?

- The system is ultimately regulated state by state, but it falls under tort, and tort is something where it's not criminal law, it's civil law.

Somebody thinks they were harmed by another person, and then you go to the court, and you try to set a number that's, you know, a monetary number.

You kind of do some algebra with what are the damages, does impact your life and stuff, come to a number, and then you ask for that money, and then pain and suffering, and whatever that number is kind of worth, and then you go to court, and then the system pits the doctor against the patient, and that really destroys the therapeutic relationship, that, you know, kind of makes the patients not trust the system, and you're no longer gonna be getting care from that doctor.

Kind of it breaks down the relationship, and that's the core of what I think the issue is, and where we can improve things by keeping the therapeutic relationship alive, and making the system not so adversarial, so that you can still be treating these patients as patients and showing that you still care about them, even when bad things happen, and the system really isn't set up for that right now.

- Yeah, and in discovering that, having that realization, Alex, I'll fold you into the conversation, you said that you had a conversation during the podcast with a provider and a patient, right?

Am I remembering that correctly?

How did you discover that this was an issue, and you wanted to explore it?

- Yeah, absolutely, and so, to elaborate on that, Viknesh and I when we were undergraduates at Brown, together, we had a podcast that explored the patient-physician relationship, but in a positive light.

That was really the jumping off point for this documentary.

We looked at sort of these long histories that these patients and physicians had had together, and I think for, you know, us as students, but then, you know, as future attendings, that that's really the reason that we go into medicine, right?

There is that aspect of science, but there's also an art to medicine, and that art is that human interaction, right?

And what we found was that while certainly there is something to love there, there are also threats to that relationship and that reason why we go into medicine.

I mean, medical malpractice, especially with Dr. Pensa being a rising star in it, stood out as one of the things that I think that we can advocate for to change.

And so, really we wanted to highlight that, to preserve the thing that really brought us into medicine in the first place.

- It's interesting to me that all of this kind of played out as the pandemic was playing out.

Like you are creating this documentary, you're understanding people's relationships to their providers.

We saw a lot of first responders put their lives on the line during the pandemic, but they also came under a lot of scrutiny.

Mental health was a focus of the documentary.

I was absolutely shocked to see the numbers of providers who commit suicide.

Why did you want to talk about this?

And has this in any way been a contributing factor to the issue with medical malpractice, the state of mental health of a provider?

- Yes, very much so, and my own personal experience led me to understand what a trauma it is for the physician, or the provider rendering care to be in this system, and at the same time, it is obviously the plaintiff, or the plaintiff's family has suffered some sort of trauma, and all of the humanity gets taken out of it.

You don't have any opportunity to come together, to heal, to talk about what happened.

But I know from my own experience and then from working with people that malpractice litigation is for the providers a real driver of depression, anxiety, burnout, substance use, divorce, and unfortunately suicide, and physicians have twice the rate of suicide of the general population, and now we have the data to show that civil litigation is a driver of suicide, among a number of other issues.

But it's something that we just never ever talked about before.

And so, opening this discussion up to where we can really talk about the issues that drive us in that direction when we're under this kind of strain I think is really important, and I'm hoping that it'll be culture-changing.

- One of your profiles, Dr. Matt Seaman, watching his widow talk about their, you know, his process, and he eventually, I won't give too much away, so people can tune in for themselves.

It was very painful to watch that.

It was very painful, and she touched on that, the lack of humanity in the process, how there's so much blame.

And I just, I wanted to ask what is the way to restore that?

What is your goal with presenting these types of stories?

- Well, I think that there's multiple different angles that you can come at it from, right?

So one, of course, is that we could have an entirely separate documentary, and we could probably make it two hours about physician mental health, or even, you know, provider, you know, medical provider mental health.

But from the medical malpractice, legal side of things, really, as Dr. Brady mentioned, it's on a state by state basis.

And of course, there's things like tort reform, or "I'm sorry" laws, which we won't get into too much here, but our documentary highlights CRP programs, Communication and Resolution Programs.

And really the basis of those, as Mr. Boothman talked about in our documentary, is restoring that communication between the provider and the patient.

- They had not talked to each other for six years, six years.

After we won the case, after the jury was filing out, the lady who sued my client leaned around the podium, and said, "If I had known everything I heard "in this courtroom, I would never have sued you "in the first place."

And I realized that there had to be a better way, that this was not working.

- And because, you know, our medical system is built on trust.

When you go to a doctor, you hope that there's gonna be an open dialogue, and that there's gonna be a level of trust between you and your physician.

But then unfortunately, when medical malpractice comes into play, and sometimes when there's an adverse event, then those wagons circle, and patients can't get answers.

And, you know, doctors who really wanna help their patient, who wanna communicate, who wanna teach, and who wanna be there for their patients aren't able to do that.

And so, that's sort of a movement towards reaching out to those patients after an adverse event has occurred, and saying either, A, you know, "We think that something was done wrong here, "and here's how we're gonna help, "and how we're gonna change," or B, explaining to the patient how, you know, that is a consequence of the surgery that they had, or the, you know, medication that they were provided, or whatnot, and really sort of educating, and helping that patient through that adverse event.

- And from what I learned watching it is that this doesn't happen in many places right now, right?

If there's an adverse event, usually, lawyers on both sides, they're activated, and that's how the hospital and the patient communicate.

Is that correct, Dr. Brady?

- That's usually how things work, and that's where really the patients get stuck in the middle, and the doctors too, and it's adversarial.

Nobody feels good at the end of it.

Nobody feels like anything changed at the end of it.

That's usually how things play out.

There are exceptions, and there's a whole spectrum of different programs that have been tried, but it requires a lot of input to set up those other programs, and everybody is caught in this situation where on the healthcare side, we all wanna be better, we wanna do what's right for the patient, but we have a very adversarial, you know, legal system that the healthcare system really doesn't, we don't have any say into it.

It's at your local legislature.

So the change has to happen on a, you know, on a political level to change the rules if you wanna make things different.

When you get to a point where, you know, you, or somebody from your family, you know, you have a question on if something happened, and from your perspective as a patient, you just want answers, and the system, it just shuts up, and says, "Well," you know, kind of, "We'll basically see you in court," is usually what the answer is, 'cause they know they're usually gonna win, and that definitely makes you feel like you're abandoned.

So the solution is ultimately political, and to have a more open conversation about this, and that's why our approach was just to be more descriptive than proscriptive.

We're just talking about this is the system that we have.

We can change it.

There's a whole bunch of different ways we can change it.

Take your pick, but kind of anything's better than what we have right now.

I think probably some states do things a little bit better by the patients and by the doctors than other states, but really it's up to your local representatives to change your system.

- Off-camera, you mentioned in Massachusetts it's a different process that actually allows for there to be space for restorative justice.

Can you touch on that a little bit?

- Yeah, and I think Alex could probably talk a little bit more about that.

I think he did a thesis on- - Oh, yeah, Viknesh did, yeah, yeah- - Viknesh did a thesis on this exact topic.

But basically in Massachusetts, before you go to litigation, there's like a space where you kinda let the doctor, or hospital know, "Hey, we're looking into this," and it gives them a chance to reach out, and communicate with you, and maybe explain things to you, and just say, "Hey, this is just what happened, "and you don't need to take us to court, "'cause this is what happened.

"If you want answers, here's the answers," or they do an internal investigation, say, "Oh, we looked into that.

"We think there was something that we could've done better, "and so, we're gonna fix that to try to prevent that "from happening to somebody," and if we think that something, there was some damages, they can proactively reach out to you, which does not prevent you from afterwards going on and litigating, but a lot of times, it does reduce the burden on the system and the numbers are basically, it reduces, in places in Massachusetts where they have that system, reduces litigation by about 50%.

It's cost-neutral.

So the thing is you need a lot of input from the healthcare system, 'cause then you need to have people doing internal investigations, and you're still paying out to patients.

But it took a lot of grassroots work to get that system in place, to pass the, you know, the laws necessary to give that space to continue the therapeutic relationship.

And some places like Massachusetts, I think in a lot of systems in Massachusetts they do that really well, but we don't really have that in a lot of places in the states.

- It's interesting to see the different case studies.

When you talk about this, it reminds me of Selah's parents, and watching them talk about their experience, and how at peace they were versus the other two cases, they were still so troubled by the whole experience, and they wish they had never done it in the first place.

Tell us about what it was like meeting Selah's parents, and seeing how this all played out in real life, going from studying it in a thesis, and then watching those cases right in front of you.

- Yeah, absolutely.

You know, what maybe is not seen in the documentary is the fact that that's the first time that we've met them, right?

And so, we've communicated over email, they have a general idea of what our mission is, but that's the first time where we've met them, walked into their living room, sat down across from them, rearranged their furniture, right?

Their kids are sort of poking their eyes through in the background, and they're opening their heart up to us, and I think that, you know, a lot of credit should be given to them for doing that, right?

To have these strangers sitting across from them, and to open up their hearts, and tell us about probably one of the most, you know, emotional moments in their lives, the passing of their child, and I think I was just floored by they're willing to do that.

And really our job as, you know, documentary filmmakers is to do right by them, right?

And make sure that what they've done has the greatest impact that it can, and that's why it's been so nice to have PBS take it up, and to show it to so many different people, because really the point of that is advocacy.

- Yeah.

- To make sure that more people have closure like that.

- Do you find yourself thinking differently after this whole entire process?

Like in hindsight, have you been able to reflect on what it was like making it, what you learned about yourself, or what you just learned about what advocacy can do in this space?

- Yeah, absolutely, I mean, I think as medical students, as eventual trainees, and, you know, maybe even eventually as attendings, medical malpractice is not something that is talked about maybe, as I believe, as much as it should be.

And certainly it's scary to learn about medical malpractice, and the fact that probably the majority of doctors end up going through a lawsuit in their lives, and especially that for patients, this can be such an awful process.

But I think that what I was touched on, you know, what I was touched by the end of it was the fact that so many people were able to persevere even through that.

- Hmm.

- And while I think that we should absolutely make the process better, and there's a lot of things that we can do that we've touched upon here, that we touch upon in the film, you know, nonetheless, this is something that people are able to make it through, and I would, you know, encourage anyone who's going through a lawsuit, whether that's a physician, or a patient, to realize that there are a lot of people who have shared a similar experience, and you'll be able to make it, make it through.

And so, I'd say, you know, talk to your colleagues, talk to other different patients, talk to the lawyer who's working with you, and you'll find that there's a lot of places that you can find support, even if it doesn't go as said as much as it should.

- Yeah.

Dr. Pensa, that's something that you mentioned in the documentary, how, you know, you can get so engrossed in that process, and that experience that you kind of have blinders on, and you think that this is only happening to you, and you said it's surprising that it happens to a lot of providers, unfortunately.

- Yeah.

- Reading your lawsuit, it was incredible to me as a layman, reading it as someone who doesn't understand medical terminology, how it can just get out of control so quickly, and how you're making decisions so quickly on such complicated situations.

What did you learn from this experience?

- Well, in regards to what you're talking about with the complexity and then reading it in a lawsuit, it's really interesting that once you get into the system, the only person who really understands the medicine usually is the doctor, who's being adjudicated by a jury that doesn't have medical training, a judge that doesn't have medical training.

The experts on both sides are paid by each side for their testimony.

And so, the system can feel quite unfair when you realize that nobody else in the system understands your medical decision-making.

I mean, we go to school for a long time, and do residency for a long time to learn how to do those things.

But the trouble also is that the optics are that people often don't under understand when an adverse event is actually the result of malpractice and when an adverse event is just an adverse event, and they conflate those two.

And so, in litigation, more than half of the cases are, they wind up being no-pay cases.

They find eventually there's no evidence of malpractice.

But for the physician, the psychological damage begins at the very beginning, at the accusation of malpractice, because we conflate that with, "Everybody thinks I'm a bad doctor," and, you know, for us, there's probably nothing worse that you could call us than a bad doctor.

You spend your whole life dedicated to developing this craft.

And so, that accusation really is something that really carves at your identity.

And so, since the documentary has come out, I've really been amazed by how many people have reached out to say that they found it moving, that they had similar experiences, whether as a plaintiff, or as a physician who was, had to go through the process.

It's the way we do things now doesn't serve anybody, and I think the title of the film, "A World of Hurt," really aptly describes the whole thing.

- Was that your goal to get that type of reception?

And what has the reception been like to the documentary?

- Yeah, I think the goal was really just to open up a conversation, and let people know they're not alone.

So I train, you know, medical students and residents, and for my trainees, I just thought we were failing them, and not preparing them for what their future is gonna hold, which is that most people are gonna go through a lawsuit at some point, and some many, and some for their whole career, they're gonna be in lawsuits without necessarily having done anything wrong.

This is just the system.

Just like if you get on the road and you're in an accident, it's not necessarily your fault, but there's gonna be a whole system that follows up on that, and also in the tort system.

So the reception has been from learners that they're very eager to get this information, 'cause it's not part of medical school education.

Maybe you'll hear about something, but it's more like you're hearing about the boogeyman.

It's not anything that's backed by data, and they don't give you anything that's useful to fight.

It's just, you know, you're going by hearsay, basically.

Ho do you prevent a lawsuit?

"Oh, you should do more of this.

"You should test more.

"You should do more of this.

"Here's the way to get around that."

But also from, you know, from the patient perspective, from their perspective, this is, you know, it also seems very unfair to drag them through years of litigation, and most of the time, they don't win on these cases either.

So the system just seems really unfair, and to Gita's point about, you know, kind of when you're going through a suit being the only one who's aware of it, when people who are trainees, when they're aware that other people go through this, I think they're less likely to be as depressed, or feel as isolated.

So that was one of the big goals of this is just to make, you know, show doctors that they're not alone when they're going through this, and also to your point about, you know, being the only one that really understands the facts of the case, I mean, you had somebody that was on, like involved with one of the cases who afterwards clearly did not get the facts right, which is, you know, kind of very disturbing from our perspective.

- Yeah, I had a juror come back as a patient in the emergency department who was recounting their interpretation of what had happened, and it was- - Completely wrong?

- It was completely wrong.

But, I mean, to my mind, the verdict was in my favor, but when the medicine is really complicated, it's really hard to get people who are non-medical to understand- - Yeah.

- The basic facts of a case.

- What we do understand is the human experience, and you've all did a beautiful job presenting it, and letting us into the world of these patients who have been impacted by medical malpractice.

Thank you so much for coming here, and enlightening us with all this information, and congratulations on the documentary.

- Thank you very much- - Thank you so much.

- We have run out of time.

I would like to thank tonight's guests, Gita, Mark, and Alex.

You can watch this episode and all our past episodes anytime at watch.ripbs.org, and be sure to follow us on these social platforms for the latest updates.

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