Skip to content
  • About
  • Contact
  • Contribute
  • Book
  • Careers
  • Podcast
  • Recommended
  • Speaking
  • All
  • Physician
  • Practice
  • Policy
  • Finance
  • Conditions
  • .edu
  • Patient
  • Meds
  • Tech
  • Social
  • Video
    • All
    • Physician
    • Practice
    • Policy
    • Finance
    • Conditions
    • .edu
    • Patient
    • Meds
    • Tech
    • Social
    • Video
    • About
    • Contact
    • Contribute
    • Book
    • Careers
    • Podcast
    • Recommended
    • Speaking

A tale of medical malpractice, the legal system, and a fight for justice

Anonymous
Physician
February 22, 2023
Share
Tweet
Share

I have been fortunate in my forty-five-year medical career never to have been sued for the care I delivered to a patient. I attribute this, in part, to being a family physician and having ongoing relationships with my patients and, in part, to being willing to admit to my mistakes if I make them and things turn out badly. I see how gut-wrenching going to court is for doctors so it gave me no pleasure a few years ago to have to sue two of them, an orthopedic surgeon and an anesthesiologist, who performed a laparoscopic rotator cuff repair on my wife. Before her scalene nerve block had worn off, she experienced severe pain in her right thumb and index finger. Nothing they did fixed it. Frustrated, in pain, and unable to use her dominant hand for the things that gave her pleasure in life, she self-referred to a pain clinic, where it was eventually determined that the culprit was likely an errant scalene nerve block and prolonged traction during surgery.

When confronted with the reports, the doctors wouldn’t communicate with us any further. A request for a case review on my part failed to find them at fault by their colleagues. I was left with a wife in chronic pain whose doctors had obfuscated, stonewalled, and refused to take responsibility or apologize for the injury they had caused. Wanting them to feel our pain, I decided to sue.

It took calls to five different attorneys before I found one who was willing to give us advice but not take the case.

“Why won’t you take our case?” I asked William, a malpractice lawyer.

“For the same reason none of the other lawyers you called would take it,” William said. “There just isn’t enough money to cover my expenses, so we cherry-pick our cases and hope they settle out of court.”

William was willing to give us pro bono advice, and I began my education about how the legal system works in “med mal.”

“First of all,” William counseled, “you have a one-year statute of limitations from the date of your wife’s surgery to file a lawsuit, after which any claim may be barred. Since it’s been almost a year, you can file a formal notice of intent to commence a civil action for professional negligence. It’s in section 364 of the California Code of Civil Procedures. That will buy you another 90 days to file a formal complaint.”

I was awash in confusion and felt like it was my first day of medical school, and I was being asked to take care of a complicated patient.

“Sorry, but I have no idea how to do that,” I said. William must have taken pity on me because he volunteered to draw up the document.

“Some doctors get away with murder,” he said. He then told me stories about his clients who had been harmed during procedures and lost in court, doctors who refused to settle though they were at fault, and doctors who wanted to settle but their insurance companies wouldn’t let them. I was agape. I always thought the lawyers who defended doctors were the good guys. “Less than 10 percent of the cases that go to trial in California are decided for the plaintiff”, William said.

“By the way,” William asked, “You didn’t sign an arbitration agreement, did you?” I admitted that I had. “That was a mistake,” William said. “The arbitrators are usually retired judges and lawyers who depend on doctors for work. If they go against them, they’re unlikely to get called upon again to arbitrate. There is a built-in bias to side with the doctor. You would have been much better off with a jury trial”.

My ninety-day notice got no response, so I filed a formal suit before the time expired. William again helped me with this as I had no idea what I was doing. We were plaintiffs in a Propria Persona complaint, meaning that we were representing ourselves. Their lawyers threatened a protracted legal battle with us losing and having to pay all the court costs. I felt like David going against Goliath, except that I didn’t have a slingshot. It was me versus experienced, high-priced lawyers who had been there many times before. These guys are the reason there are lawyer jokes, I thought. Before the court date, we dismissed the case. William again helped me with the paperwork.

It was more than disheartening that fellow physicians lawyered up and hid instead of allowing that they were only human, made mistakes, had a bad result, and a patient suffered. Our health care and legal systems do not readily accommodate apologies or admissions of carelessness or wrongdoing from us. Confessions of accountability for untoward results are not on the agenda, only limitations of monetary losses by the medical insurance industry. It was enough to have made me hang up my stethoscope before I had to apologize to a patient for harming them and leaving them little recourse to be financially compensated for the damage I may have caused. Isn’t that, after all, what our malpractice insurance is for? We carry it not only because we have to for hospital privileges but also because we owe it to our patients when we cause them injury. Getting rightfully sued may not mean we are bad doctors, just responsible ones who are not perfect and may sometimes be negligent. If being so caused our patient harm, we should be grateful they can gain some solace from remuneration.

ADVERTISEMENT

The author is an anonymous physician.

Prev

Healing clinician-associated trauma: a call for connection

February 22, 2023 Kevin 1
…
Next

Nursing for change: Prioritizing Black nurses' health and well-being

February 22, 2023 Kevin 0
…

Tagged as: Malpractice

Post navigation

< Previous Post
Healing clinician-associated trauma: a call for connection
Next Post >
Nursing for change: Prioritizing Black nurses' health and well-being

ADVERTISEMENT

ADVERTISEMENT

ADVERTISEMENT

More by Anonymous

  • Medical students in Korea face expulsion for speaking out

    Anonymous
  • Residency as rehearsal: the new pediatric hospitalist fellowship requirement scam

    Anonymous
  • The altar of equity: a cautionary tale from the temple of healing

    Anonymous

Related Posts

  • Medical malpractice is a lot like running a marathon

    Christine Zharova, Esq
  • Digital advances in the medical aid in dying movement

    Jennifer Lynn
  • Medical malpractice: Don’t let the minority define us

    Shah-Naz H. Khan, MD
  • What this medical student learned as a legal extern

    Ton La, Jr., MD, JD
  • How the COVID-19 pandemic highlights the need for social media training in medical education 

    Oscar Chen, Sera Choi, and Clara Seong
  • To fight medical student burnout, focus less on the clinic and more on life

    Natalie LaBossier

More in Physician

  • The dreaded question: Do you have boys or girls?

    Pamela Adelstein, MD
  • When rock bottom is a turning point: Why the turmoil at HHS may be a blessing in disguise

    Muhamad Aly Rifai, MD
  • How grief transformed a psychiatrist’s approach to patient care

    Devina Maya Wadhwa, MD
  • Fear of other people’s opinions nearly killed me. Here’s what freed me.

    Jillian Rigert, MD, DMD
  • What independent and locum tenens doctors need to know about fair market value

    Dennis Hursh, Esq
  • How one simple breakfast question can transform patient care

    Dr. Damane Zehra
  • Most Popular

  • Past Week

    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education
    • A faster path to becoming a doctor is possible—here’s how

      Ankit Jain | Education
    • A world without antidepressants: What could possibly go wrong?

      Tomi Mitchell, MD | Meds
    • Make cognitive testing as routine as a blood pressure check

      Joshua Baker and James Jackson, PsyD | Conditions
    • Rethinking patient payments: Why billing is the new frontline of patient care [PODCAST]

      The Podcast by KevinMD | Podcast
    • Why the words doctors use matter more than they think

      Erin Paterson | Conditions
  • Past 6 Months

    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education
    • Internal Medicine 2025: inspiration at the annual meeting

      American College of Physicians | Physician
    • The silent crisis hurting pain patients and their doctors

      Kayvan Haddadan, MD | Physician
    • What happened to real care in health care?

      Christopher H. Foster, PhD, MPA | Policy
    • How the CDC’s opioid rules created a crisis for chronic pain patients

      Charles LeBaron, MD | Conditions
    • Are quotas a solution to physician shortages?

      Jacob Murphy | Education
  • Recent Posts

    • Rethinking patient payments: Why billing is the new frontline of patient care [PODCAST]

      The Podcast by KevinMD | Podcast
    • The dreaded question: Do you have boys or girls?

      Pamela Adelstein, MD | Physician
    • Make cognitive testing as routine as a blood pressure check

      Joshua Baker and James Jackson, PsyD | Conditions
    • Reimagining diabetes care with nutrition, not prescriptions

      William Hsu, MD | Conditions
    • Why funding cuts to academic medical centers impact all of us [PODCAST]

      The Podcast by KevinMD | Podcast
    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education

Subscribe to KevinMD and never miss a story!

Get free updates delivered free to your inbox.


Find jobs at
Careers by KevinMD.com

Search thousands of physician, PA, NP, and CRNA jobs now.

Learn more

View 2 Comments >

Founded in 2004 by Kevin Pho, MD, KevinMD.com is the web’s leading platform where physicians, advanced practitioners, nurses, medical students, and patients share their insight and tell their stories.

Social

  • Like on Facebook
  • Follow on Twitter
  • Connect on Linkedin
  • Subscribe on Youtube
  • Instagram

ADVERTISEMENT

ADVERTISEMENT

ADVERTISEMENT

ADVERTISEMENT

  • Most Popular

  • Past Week

    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education
    • A faster path to becoming a doctor is possible—here’s how

      Ankit Jain | Education
    • A world without antidepressants: What could possibly go wrong?

      Tomi Mitchell, MD | Meds
    • Make cognitive testing as routine as a blood pressure check

      Joshua Baker and James Jackson, PsyD | Conditions
    • Rethinking patient payments: Why billing is the new frontline of patient care [PODCAST]

      The Podcast by KevinMD | Podcast
    • Why the words doctors use matter more than they think

      Erin Paterson | Conditions
  • Past 6 Months

    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education
    • Internal Medicine 2025: inspiration at the annual meeting

      American College of Physicians | Physician
    • The silent crisis hurting pain patients and their doctors

      Kayvan Haddadan, MD | Physician
    • What happened to real care in health care?

      Christopher H. Foster, PhD, MPA | Policy
    • How the CDC’s opioid rules created a crisis for chronic pain patients

      Charles LeBaron, MD | Conditions
    • Are quotas a solution to physician shortages?

      Jacob Murphy | Education
  • Recent Posts

    • Rethinking patient payments: Why billing is the new frontline of patient care [PODCAST]

      The Podcast by KevinMD | Podcast
    • The dreaded question: Do you have boys or girls?

      Pamela Adelstein, MD | Physician
    • Make cognitive testing as routine as a blood pressure check

      Joshua Baker and James Jackson, PsyD | Conditions
    • Reimagining diabetes care with nutrition, not prescriptions

      William Hsu, MD | Conditions
    • Why funding cuts to academic medical centers impact all of us [PODCAST]

      The Podcast by KevinMD | Podcast
    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education

MedPage Today Professional

An Everyday Health Property Medpage Today
  • Terms of Use | Disclaimer
  • Privacy Policy
  • DMCA Policy
All Content © KevinMD, LLC
Site by Outthink Group

A tale of medical malpractice, the legal system, and a fight for justice
2 comments

Comments are moderated before they are published. Please read the comment policy.

Loading Comments...