Sunday, January 3, 2010

A Letter Revealing the Anguish Caused by Frivolous Medical Lawsuits

This is a true story of how frivolous medical lawsuits can ruin medical careers. This is a true story of how your feelings, while important, if not handled properly and reigned in properly, is able to ruin lives and doctors' careers.  Unfortunately, with Obamacare there is no medical liability reform. Physicians spend loads of money on medical malpractrice insurance and pass that cost onto their patients. But, there is no provision in either health care Bill that addresses this problem.  This could have saved patients money. But, then again, would all those lawyers that support Democrats be able to contibute as much money to their campaigns? Probably not.  Isn't that kindof selfish of the Democrats

A Patient Dies, and Then the Anguish of Litigation


It was just an average busy, stressful day at work, in May 2004, when the deputy sheriff arrived with a summons. I sucked in my breath, signed the receipt and returned to my desk piled high with charts, messages, lab results and forms. I was being sued for medical malpractice.

That was how it started. Eventually I peeked at the text of the complaint, which was riddled with accusations. Apparently, my conduct was “malicious, willful, wanton or reckless,” and I had “negligently, carelessly and without regard” for my patient’s health treated her in such a manner that she had died the previous year.

At night I lay awake going over and over what happened. My patient was a relatively young woman who had developed an aggressive colon cancer; her illness was unexpected, and her course was tragic. I felt that I had treated her as I would wish to be treated.

But now her children, whom I barely knew, were coping with their own complex emotions, which I imagined to be grief, very likely anger and frustration, and perhaps misunderstanding. Filing a malpractice suit somehow addressed this. And now it would hang over all of us for years. It was as if a noxious subtle film had settled all around, making everything vaguely unfamiliar and unpleasant. I had become a little unfamiliar to myself.

The film settled on everything at home and at work. I loved my patients and my practice, but this made me wary and mistrustful of them — and of myself.

Medicine can be a minefield of uncertainties; no matter how thoughtful and careful we are, physiology is infinitely complex and fate is capricious, and occasionally something blows up in your face. If this happens, you have to integrate the experience, but for a while you lose your bearings. It is discombobulating. When this is followed by litigation, the effect can be paralyzing. And the lawsuit felt like an assault. Being sued, even with assurances that “it’s nothing personal” and that my insurance would most likely cover any settlement, was in fact deeply personal. The experience was devastating.

Still, I coped well enough. I was able to see patients and almost lose myself in their stories. One day I went in to see a delightful 95-year-old woman for a blood pressure check. In the middle of the visit, she gave me a piercing look. “You’ve got something on your mind,” she told me. “You take care of yourself.”

A few months later, my lawyer, Amy, arrived, a brisk, no-nonsense woman hauling a suitcase full of records. We spent an exhausting and inconclusive morning reviewing the case and the questions it raised. I couldn’t tell if she thought I might win or lose the suit. This was the first of many such marathons.

I had been cautioned not to discuss the details of the case with anyone except my defense team. At one point, I told Amy that I had decided to keep a journal of the experience. Apparently, this was a bad idea. A journal could be subpoenaed, and even if it contained no evidence of wrongdoing, the plaintiff’s lawyer could very likely find something that would be used against me. So talk only to Amy and my claims representative; other than that, suck it up.

After the initial flurry of activity, things subsided, and more than a year elapsed before I was deposed. For a grueling four hours, the plaintiff’s lawyer asked a lot of questions, but he did not hold my feet to the fire, and then that was that. It is often the case that these suits drag on for years, so I was taken by surprise when, in fall 2007, a trial date was scheduled for Oct. 27, 2008, in Middlesex Superior Court. In January 2008, I left my primary care practice after almost 30 years. I can’t say it was because of being sued, but I can’t say it was irrelevant either.

In September 2008, Amy and I resumed the process of reviewing records and discussing strategy. In early October, I was coached on how to testify: keep your feet on the floor, do not cross your legs or fold your arms. Don’t put your fingers together and pontificate. For heaven’s sake, don’t slump. Answers should be crisp and cogent, but do not hesitate more than three seconds before responding. Look at the jury. Don’t lose your cool during the cross-examination. And above all, relax and be yourself.

On Oct. 16, 11 days before trial, I got an urgent e-mail message from Amy. It turned out that the plaintiffs and their law firm had “irreconcilable differences.” These differences weren’t spelled out, but it appeared that the lawyers had decided they were not going to win the case. They couldn’t have figured this out four and a half years earlier? Before all this wasted time, the emotional anguish, and the more than $150,000 spent by my insurance company in the run-up to trial?

The plaintiffs, my patient’s children, refused to let their lawyers drop the case. I could imagine that they didn’t feel well served by this process. They met with their lawyers to resolve this, but neither side gave in. As this slowly unfolded, my mood turned from stoic resignation to a toxic muck of apathy and irritation.

On Oct. 23 everyone except me went in front of the judge. The plaintiffs’ lawyers asked to withdraw from the case, and the family requested a continuance, which would allow the case to be tried at a later time with a new set of lawyers. Amy opposed the continuance. The judge denied the continuance and ordered everyone to proceed with the trial as scheduled.

Just before Amy left, the children and their lawyers conferred again. The lawyers told them that they were unlikely to win and that they would have to pay for the expert witnesses if the case went forward. Finally, the family agreed to drop it, and they all went before the judge to seal the deal.

Amy called me. All in all, I thought I was pretty cool about the whole thing by now. The initial turbulent emotions had been squeezed out or tamped down, and I was ready for whatever happened. But when she told me the news, I started to cry.

Dr. Joan Savitsky is an internist in the Boston area.


Christopher said...

What a heart-wrenching story. Talk about a no-win,lose-lose scenario. Oh well I guess all the attorneys won,,$$$.

I have been pondering this; I really do not see how trial lawyers will do well under nationalized health care? You cannot sue the government and since all doctors will be working at the behest and direction thereof they will be essentially government workers.

Opus #6 said...

It is criminal that tort reform was on included in the health care revolution. Because it is revolution when you change the system completely. Not reform. Reform is simply fixing the problems.

Doom said...

I don't trust doctors. They have not been able to help me for decades, on 4 or 5 issues now. However, I do believe they do the best they can within the limits of their knowledge. Actually, I find that they often won't do the right thing for fear of litigation. *sigh* I guess I can't blame them.

For me, I refuse to take the advice, medicine, or such from doctors (though I wouldn't advise that to most). But I do sympathize with them on this issue and see where these suits themselves are binding healing hands and ruining people who do try to help.

Thanks for giving this issue a voice.

Anonymous said...

I highly dislike the idea that someone else is always to blame if things don't go as one would desire. People spill coffee on themselves, get burnt, sue the restaurant and then the rest of us have to suffer lukewarm coffee thereafter.........

The litigious society is something we in Europe associate with the USA though people are certainly developing that mindset in the UK now. I am fed up of constant advertising offering no-win no-fee legal assistance for accidents, bad luck and medical negligence.

the malcontent said...

I do not intend to say "aahh" again to any doctor no matter how many times he may ask me to..

Woodsterman (Odie) said...

Greedy Children and lawyers ruined a doctor's life. They need to be dealt with under the law ... oops, there isn't a law protecting any of us from this type of crap. And the Democrats don't care.

We need more than tort reform ... lawyer reform laws are needed.

Anonymous said...

Unlikely to see tort reform in healthcare debate. USA has 1.2 million lawyers vs. 600,000 doctors, & guess who is best represented in congress.

Anonymous said...

Tort reform?? Ha.

The lawyers love the Democrat Party.

Ron Russell said...

Frivolous medical lawsuits are just that frivolous, but some suits against doctors can be justified. I tend to think that most suits are unwarrented and uncalled for. This extra cost for insurance is unnecessary and like you say the present healthcare bill does nothing about this. Just another reason for our congressmen and women to vote no!

Chicago Ray said...

That's powerful stuff, and Opus is right, tort reform would solve the entire medical crisis overnight, and the world, including the Community Organizing Junior Professor knows it.

SO is it's either put trial lawyers out of business or screw America as a whole to help the slim minority of people left uncovered by insurance of some sort or another.

We know the choice the dem congress filled to the hilt with attorneys as decided against the will of the majority, and it's time to remove em and reform the legal profession, not the medical profession.

Tyranny by Minority. Thanks Teresa

Ridwan said...

There's a movement to radically change California government, by getting rid of career politicians and chopping their salaries in half. A group known as Citizens for California Reform wants to make the California legislature a part time time job, just like it was until 1966.

Joe said...

If President BO really wanted to do something positive for health care in this country, tort reform would head the list.

Truth is, he does NOT want to do anything FOR health care in this country. He only wants the power to control it.