Part 3 of a series. Read part 1 and part 2.
The aspect of malpractice suits that lawyers seem congenitally unable to understand is how devastating it is. “Ho hum,” says a lawyer who read my first two posts in this series. “Get out the violins.” It’s as if, because I make my living operating on diseases, I were to say to my patients crying in my office about their cancer diagnoses, “Yada, yada, get a life …” That such a thing is devastating is not, from my point of view, a reason for derision. If you make a living suing doctors, fine. It’s what you do. But why laugh it off?
From the moment I found out about the suit, I felt branded. It was in the papers. People were saying awful things, in writing. In my mind, there was a visible stain on me, surely evident to every patient I faced. In no small measure, of course, it was because no matter what the facts were, I felt awful about the outcome of the case.
“The case.” How tidy a term … I’m absolutely certain that if I’d operated six hours earlier the outcome would have been the same — and so were all the experts and colleagues I consulted afterward. But whenever I remind myself about it — and this series of posts is a hell of a reminder — I wish to God I’d operated at midnight. (Nor do I doubt that if I had, there’d be a lawyer/doctor team claiming that by going in before fully rehydrating, I set the stage for the clot to form.)
After the first few months, during which the afore-described papers trickled in (each arriving in a large envelope marked “personal and confidential,” handed to me with trepidation by my nurse, and having been through the hands [so it seemed to me] of half the employees in the clinic before it got to me), there began a long period of chess-playing, carefully (I’m sure) crafted to provoke the greatest possible anxiety and disruption, aiming to make my life as miserable and uncertain as possible. The better, naturally, to till the soil of capitulation.
Trial dates were announced, my schedule was cleared for that week, and then within a few days of the date, it was canceled and rescheduled. Once again my schedule would be cleared, once again the day would approach, and be canceled once again. It wreaks havoc with a practice, in obvious ways. Lawyers, conceivably, are no more stupid than the rest of us (well, there’s a bell curve); I’m sure it was a game well-played.
With each cancellation, there came notification that the amount of money being sought was lowered. Sometime after the prayer (that’s the official term for the amount of money in play: “prayer”) was lowered to well within the limits of my coverage, I heard from the “personal” attorney I’d hired. He wanted me to request settlement.
Hey, wait a damn minute! Much as the idea of being hammered on a witness stand frightened me, I’d long since gotten to the point of anger-fueled certainty that I’d prevail (well, that’s too strong a word: not certainty, but resolution to proceed), and settlement was the last thing on my mind. The reason, he told me, was that since I’d originally been sued for more than my coverage, if it were to go to trial and I were to lose, and if the judgment were for more than my coverage, then, having requested settlement, I’d be able to demand full payment by the insurer. Well, I told him, I’m not sure. I don’t want to settle this thing. This is about your self-interest, he told me. It’s what you should do. He sent me a letter, and, feeling sick at it, I signed and sent it.
More trial dates. Couple of trips to Oregon to meet with the main attorney. “Stick to the facts, don’t let him bait you, let me handle it” sort of stuff. It dragged on for over a year, more setups and cancellations, more envelopes with flashing neon identifiers. Then, a call from the attorney.
“I’ve got great news,” he said. Unbelievable, I thought. They tossed it, finally. “We settled,” is what he said. Thud. Stunned. Not relieved: pissed. The amount of settlement was paltry, particularly compared to the original “prayer.” And given the amount the attorney would carve out, the family would get a pittance. To what end? What had been the point? The point, it’s clear, is that everyone made out but me. The system was gamed perfectly: Find a case, pay an opinion-for-price “expert,” sue for more than the doctor’s coverage, play a master baiting game for a year or so, make a few bucks. Pretty much guaranteed. Every lawyer, and that street-walking doctor got paid.
I suppose, after the set-up of the first two posts, it’s a let-down. I got off easy, except for the feeling I’d been played like a fish, by people who made the rules for their own benefit, who have seen to it that they’ll get theirs.
And here’s the point: There is such a thing as malpractice. When it happens, the patient is, without question, entitled to compensation. But the system does not distinguish between bad outcomes — which are inevitable, given that in complex situations there is no decision we make whereby the result is guaranteed — and bad care. In my mind, malpractice means sloppy care, decisions made with obvious ignorance of the situation; refusing to respond; failing to follow accepted practice in the evaluation or treatment of a condition; clearly making the wrong surgical move: There are many items on the list. Approaching a difficult situation with well-reasoned choices, conducting the care properly and carefully, yet ending up with a bad result — whatever that is, it’s not malpractice.
And there needs to be a distinction. Not just for the doctors’ sake; for the patients’. As is, it’s an all-or nothing lottery jackpot, with the lawyers — over the long haul — the ones most likely to cash in. People who suffer harm from proper care are, I’d say, usually deserving of or in need of some sort of help. Surely it’s possible to design a system in which help can happen. You are offered collision damage coverage when you rent a car; extra flight insurance; title insurance. (OK, that last one is a ripoff.) Ought it not be imaginable that some sort of parallel coverage to augment health insurance could be designed? Paid for in part, perhaps, by malpractice insurers? Ought it not be conceivable that there’d be a way to track such situations into a non-adversarial process, leaving true malpractice to be dealt with as it should?
I’m not blind. I’d be the seventeenth to say that the era of widespread malpractice litigation has accomplished some good: There are now in place universally (or nearly) controls and committees and processes by which doctors and their product are scrutinized much more effectively than when I first toe-dipped into the pool. That’s a good thing.
And I’m told most cases are decided in favor of doctors. Whoopee. But I’d say that’s just an indicator of how broken is the system: Surely when actual malpractice occurs, the odds ought to favor the patient. So if most cases result in verdicts for doctors, to me it means that most cases that go to court aren’t actual malpractice. Trial lawyers, I’m sure, will say it’s because of the conspiracy among doctors: Cover up each other’s mistakes. I never saw the contract. I haven’t signed on to such a thing. Were I to see an instance of malpractice, I’d say so.
In the thirty-six years since I began surgical training, I’ve had two more cases in which money changed hands, while doing literally two and a half times as many operations yearly as the national average. (National average: 250 [I’m pretty sure]. Me: 700.) In one, I’d saved the life of a six-month-old with the right operation at the right time, and ordered the right dose and delivery of narcotic for post-op pain. When the nurse saw redness in the vein after injection, she called the pediatrician instead of me, and the order was changed to a different drug but at the wrong dose. Unaware of the change, when I got a call in the wee hours that the baby seemed painful between doses, I asked how long it had been and was told “three hours.” The pediatrician had properly switched drugs, but improperly ordered IV dosing as if it were IM (in the muscle instead of the vein, which needs a higher dose at longer intervals.) Unknowing, I said it could be given hourly. After a couple of doses, the baby stopped breathing. He was revived quickly, and had no injury; yet I was sued over giving the order, and despite the fact that the insurer’s team admitted it was not I that had erred (the hospital had, as well, in not informing me of the change nor of reviewing the dosing) I was asked to “take one for the team,” rather than get into a finger-pointing session, since the parents were willing to settle for five grand. I wish I hadn’t, because it’s on my record, but I did.
The other was a man with an extremely rare anatomic problem with his esophagus, which I fixed. He developed swallowing difficulties later, ultimately seeing another surgeon who was sure I must have screwed something up and reoperated, finding nothing. Around that time the patient was diagnosed with Parkinson’s Disease, and neurologists and gastroenterologists who saw him agreed the swallowing disorder was most likely due to Parkinson’s. Yet I was sued, and because the man was by now in a wheelchair and miserable from his disease, making a sympathetic witness, and since the original problem had been so unusual that there was no uniform literature on how to address it, the insurer recommended settlement, and that’s what happened.
I’ve never been on a witness stand. Like going to Vietnam — which I didn’t enjoy but which I’ve always been glad I did because it was the seminal event of my generation — I sort of wish I’d had the experience. From my brushes with the law, I’m left with an extremely discouraged view of it: Patients who are deserving get less than they need from a system designed by and for lawyers, who get plenty, abetted by whoring “doctors” who become professional testifiers because they can’t make a living practicing medicine.
Good doctors are aggrieved — to put it mildly — by a process that as part of the gameplan seeks to destroy them mentally in order to create a result, making no distinction between care well-rendered (which is usually the case) and incompetence. I simply don’t accept that even with trial lawyers having much to lose it’s impossible to find a way to help those in need without harassing doctors: Patients are doubly screwed, as they fail to get what they often deserve, and as they suffer the effects of doctors bailing out of their careers, or choosing less litigious arenas in which to practice. But I ain’t holding my breath for the solution.
Sid Schwab is a retired surgeon who blogs at Surgeonsblog and is the author of Cutting Remarks: Insights and Recollections of a Surgeon.
Image credit: Shutterstock.com
