Random Thoughts from a Restless Mind

It was the smile Ms. DMV Lady. No question, the smile told me that you chose to ruin my day when you had a lay-up chance to make my whole weekend, that you did it on purpose, and that it made you incredibly happy. In any other circumstances I’m sure I would have smiled back at you; that’s what other human beings tend to do when they see such unbridled joy on someone else’s face.

That trip back was my third one to the DMV, but there was no way for you to know that. You did see me on the second one, though, and you clearly remembered me. I forgot my license at home so I couldn’t do what I needed to do to transfer the title for my tiny little beater of a boat. Not only that, but there was nothing you could do to help me at that point, and I totally understood that. It was my fault entirely, so I didn’t ask anything of you on that visit because I knew that there was no way that you could help me, no matter how much you might have wanted to on that particular visit. I was really frustrated for sure, but I didn’t direct any of that at you, or anyone in the DMV.

Nope, it was the return visit where you could have made my day. My wife and I hurried home, got my ID and then hustled back. Did you notice that? Did you notice that we were both there? It’s really hard to free up two people who work full-time during your hours of operation. Definitely not your fault, that. We’d already tried to pull this off the week before and been thwarted, and here we were back for a second time with you, third time total. Now was your chance. We approached the desk with obvious relief on our faces. If we were successful this time we would still have to visit the DMV one more time (you only do titles; another location would do the license), but at least only one of us would need to take off work. You took the title transfer again–you looked at it in detail the first time and couldn’t possibly have missed this–and told us that the previous owner had filled it out incorrectly. He signed it in his name alone, instead of his name as “trustee”. That’s it; he forgot to put “trustee”.  You could have tipped us off before we went home for the license. You could have just noted it and let it pass. Nope. You said that we would have to bring it to him to fix before you could transfer the title.

We were equal parts dumbfounded and devastated, and it showed clearly on our faces. Here it was again, your chance to make our day. There was nothing nefarious about the prior owner’s mistake; it was a simple oversight in how he described the ownership. God, it was such an easy fix. It was right there, right in front of you for the taking. I held out my hands and pleaded softly and quietly for mercy. No disrespect toward you or your staff or your department, and no sense of entitlement or demand for action. A very simple request and a very quiet plea that we had acted in good faith. Your response? “You forgot your ID the first time, Sir.” I simply held out my ID and very softly said “but I went home and got it without saying anything, and here I am. Please, we’re really trying hard here and really could’t know.”

It’s a legal document was all you said. You had a duty to protect the State of Ohio, you said. It was then that I responded, still quite quietly mind you. I shared that the couple you had just chosen not to help were a doctor and a nurse. That we routinely put our family second as we care for patients in need. Nights, weekends…no matter. I asked if I could fill out your customer service survey, either on paper or online, explaining that I am evaluated on the care I provide and the experience that my patients have under my care. Oh my…the look on your face was priceless. Utter shock. Not once in your life, it seemed, had it ever occurred to you that it would be possible that you would be accountable to your customers. “We don’t have anything like that, Sir.”

Then came the smile.

Seldom have I witnessed such a pure, unadulterated expression of joy. You had chosen to ruin my day, and having succeeded you were not just pleased, you were infused with a visceral joy. It started in your eyes as realization crept in, and then it spread to every muscle in your face. Like I said above, it was the kind of smile that is almost always returned by another human being; we are wired to share such joy, after all. Alas, ’twas not to be for you and me. It was all I could do not to vomit on your threshold when you somehow found the strength to break through the grip of your ecstasy to wish me a nice day.

You will see me again, Ms. DMV Lady. Three times we’ve tried to get our little 1971 boat licensed, and it looks like we will need to make two more stops to accomplish that. It most certainly won’t be at your particular DMV location, though. Just thinking about that makes me nauseous all over again. No, you will see me again on my turf, as a patient. Karma, if nothing else, is imbued with a keen understanding of irony, a truly wicked sense of humor. In all likelihood it won’t really be me, personally. Even karma would find that too outlandish, an irony simply too delicious to believe. In reality you will need someone who does what I do, and you will need them in a manner and a sense that is identical to how I needed you.

I noticed that you are very nearsighted, and you have an inflammatory disease of your eyelids called blepharitis that often causes an acute type of particularly unsightly pinkeye (you are not my patient; this is not a HIPPA violation). Perhaps your son is getting married this weekend like mine. You didn’t know that, did you?  No, of course not. You broke your 3 year old glasses. Your prescription is out of date and you can’t just walk in to Lenscrafters and get a new pair, and your vision insurance only covers me. It would be a shame to have to wear broken glasses to enjoy this wonderful day. Or maybe that ugly, uncomfortable pinkeye bubbled up and there you are all red and gooey, two days before the whole fam damly shows up for the wedding. Nether one is truly an emergency, and failing to take care of either one right away will not cause you any harm whatsoever.

Let’s make it even more realistic. You know, like my return trip to your office. Let’s say it’s just before closing time, and the only way to get your glasses or your medicine is if a doctor gives the OK to see you right away. No matter what you see on the billboard, you won’t get an appointment at the Cleveland Clinic or UH. No, it will be a private doc like me. We always try to help. The Doc will know your story. How? Well, through our staff we always know the story because it always makes a difference. Would it have mattered to you that the reason I so desperately wanted that boat licensed was so that my son–the one getting married–could take his cousins and his friends out on his wedding weekend? We’ll never know; you didn’t ask.

There you will sit with your non-emergent problem that is only barely even urgent except for how much it means to you personally. Do you have any idea how easily the doctor and staff can slow-roll this even now, after you are in the office? They can follow protocols to the letter, check every preferred practice pattern box and follow every single insurance billing protocol, your chart and super bill as clean and proper as the illustration of a perfect boat title as you wait for your insurance to authorize your vision care visit, or pre-approve your expensive branded medication, and ruin your weekend.

In short, they could be you, ignoring the very real person with the very real need who stands before them asking for help. Or they can see you, hear you, and so easily choose to help you. Which, of course, is exactly what they would do. They will call the insurance company to get your Rx authorized, or they will give you samples of the medicine to carry you until you get pre-approval. Because you see, Ms. DMV Lady, that’s what every single one of us is supposed to do when we are on the other side of the desk from someone who needs our help and we are truly, safely, and easily in the position to choose to help them. It’s the decent thing that decent people do for others. When they can either make your day or ruin your day, it never crosses their mind that they even have a choice. It’s funny, when they know a little more about how meaningful it is to you that they helped, they really feel good about that.

Which is why after you have been helped, after you get what not only what you need but what you really want, you will be surrounded by people with the huge smiles of joy that come from doing the right thing. You’ll undoubtedly smile back.

Will you know why?

They got it half right. The jury that is. The jury in the malpractice case in which I just served as an expert witness got it exactly half right. Kind of like our whole medical malpractice court system if you think about it. A young woman had a bad outcome in one of her eyes following eye surgery, an outcome that has caused her quite a lot of unhappiness, quite a lot of difficulty. The jury was quite correct in recognizing this, and also quite correct in recognizing that this woman was going to need some financial help in order to make this difficult situation even a little bit better. In order to make this happen the jury found the doctor who performed the surgery guilty of medical malpractice.

Only one problem with that, though: no true malpractice actually occurred.

Herein lies the essential, fundamental problem with our medical malpractice tort system as it is presently constituted. Every single malpractice case is a “zero–some game” in which the only way that an individual who has been injured or otherwise suffered a bad outcome from some medical experience can receive financial help is for some doctor (or hospital) to lose a malpractice case. As an aside, the plaintiff’s attorneys, the lawyers who represent the victims of medical misadventure, must win the case in order to be paid. (The full–disclosure necessary here is that the only people who are guaranteed to be paid are the defense attorneys and the expert witnesses on both sides of the case.)

I’ve actually been up at night, literally losing sleep every night since the conclusion of this trial. That’s actually kind of odd, and doesn’t really make any sense at all because I received rave reviews for not only my testimony but also for the strategy suggestions I made over the four years it took to bring this case to its conclusion. Indeed, even the court reporter went out of her way to tell the defense team what a great job I had done. It’s kind of like getting all kinds of pats on the back for making 10 receptions for 200 yards in a football game your team goes on to lose–pretty empty feeling despite the fact that you did your part well.

What then, exactly, is medical malpractice? In the civil court system in the United States medical malpractice requires that two things have occurred. First, a doctor (or hospital) must commit an act of COMMISSION (do something) or an act of OMISSION (fail to do something) that falls below the Standard Of Care. This failure to meet the Standard Of Care must then result in some kind of harm to an individual. To be extremely technical and to–the–letter correct, the failure to meet the Standard Of Care is malpractice, and the resulting harm is malpractice liability. No need to get all tied up in that kind of detail; let’s just call the whole thing medical malpractice.

The Standard Of Care is a difficult concept. In effect, the Standard Of Care is defined as that care or medical decision-making that a preponderance of (most) similar practitioners would provide in similar circumstances at that time. Pretty nebulous, huh? Not a terribly rigid, hard, easy to put your hands around definition, and it’s a moving target on top of that. The Standard Of Care is an ever–evolving thing; new research findings, new technology, and new patterns of care will all combine to create a Standard Of Care that may be different today than it was even last year.

In this particular case there was never any question that it was a medical procedure that caused this patient to have such a bad outcome. There was never really even any question about the technical quality of the work performed by the doctor. No, what it all came down to was a question of whether or not the surgery should have been performed in the first place, and thus came into play that subtle little part of the Standard Of Care, the difficulty in describing to a jury of non-–physicians the difference between the Standard Of Care today and that of some years ago. The lawyers for the patient did a brilliant job of burying the jury with the details of HOW the complication arose, the difficulties that have arisen because of the complications, and the uncomfortable interactions that occurred between doctor and patient in the months following the surgery. They confused the jury about the difference between “could have done” (more than the Standard Of Care) and “should have done” (Standard Of Care). The lawyers were able to bury the fact that the Standard Of Care was followed by the doctor in question because at the time of surgery the PREPONDERANCE of similar physicians in similar circumstances at that time would have done the SAME THING.

The jury got it half right.

There, in a nutshell, is everything that’s wrong with our present medical malpractice tort system. In order for this woman, obviously harmed by this procedure, to receive some award so that she can do certain things that will make her life easier, she and her team had to “beat” a doctor and win in court. And oh yeah, she’ll also have to give 40% of whatever her award might have been to her lawyers. I think that’s a big part of why I’ve been having trouble sleeping. Not the lawyer payment thing, but the fact that a doctor who (in my opinion) practiced within the standard of care must now have a black mark against his name so that a patient can get some money that I frankly think she deserves.

Maybe a better analogy of my role in this “competition” would be something more like this: I was the consulting coach brought in to suggest an additional element to a figure skater’s program. Assuming that everyone in the competition was as conversant with the subtleties of the rules involved I suggested that the skater add an elegant, understated movement that would be obvious to any experts on the panel of judges, the jury as it were. Unfortunately, in our American system of medical malpractice, that’s not the case, and the opponents eschewed subtle elegance in favor of multiple quad jumps. The skater I assisted performed totally within the letter of the rules, but was penalized because the jury, the panel of judges, was not really an expert panel and missed the added element. And so he lost.

I DO wonder though what my reaction would have been if the opposing skater who landed all those quads had been the one who lost. Would I be up at night over that, too?