Random Thoughts from a Restless Mind

Dr. Darrell White's Personal Blog

Cape Cod

Everybody Loses in the Medical Malpractice Game

Like most physicians my age I have been sued in a medical malpractice case. It happened to me many, many years ago, and the error in care actually happened before I did anything for that particular patient. An anesthesia accident occurred prior to the OR, and my role was to simply identify the problem, do what was necessary to stabilize the patient, and then refer the patient to the appropriate specialist. Although I had no role in the actions that caused the harm to my patient I was included in the lawsuit because my name was on the chart.

Welcome to the American medical malpractice experience.

While I have yet to be sued again (visualize me running through my house frantically tapping every wooden object), that first case brought an invitation to become an expert witness. As nervous as I was in the deposition for my own case I  managed not to drool, vomit, or soil myself ; this apparently constitutes the minimum requirement to be an expert witness in med-mal cases. I have been a consultant in dozens of cases in the years since. I enjoy the intellectual challenge of deconstructing  a case, the detective work involved in recreating the history. I find the tactical discussions with the attorneys to be intellectually stimulating, similar to creating a game plan in my former life as a football offensive coordinator. Each case unfailing provides some precious nugget, some valuable piece of information that can be brought back to my own practice to make our care and our outcomes better.

But mostly what I have learned from my exposure to the American medical malpractice tort system is that everybody loses every time the game is played.

Let’s break it down, shall we? I’ll use a case in which I was recently involved, among others, to illustrate (obviously all of the names and any other identifiers have been changed). Dr. Z saw Patient X who probably already had a particular disease in 2004. Dr. Z didn’t really pursue some of the findings present in the exam and history at that time, and in effect failed to make a timely diagnosis. Patient X then had a dramatic change in vision after a surgical procedure, a procedure that was done perfectly without any adverse events or complications. This dramatic decrease in vision was really a burden for Patient X, and so an attorney was hired and Dr. Z was sued for malpractice because he failed to make a particular diagnosis in 2004 which MAY have caused the loss of vision in 2006. As it turns out the loss of vision was NOT caused by the disease that went undiagnosed and Dr. Z prevailed at trial.

Let’s quickly look at another case, one in which I had no personal involvement but one that I am familiar with on a personal level. A young mother and father, parents of three healthy little kids, notice a bulge in the belly of their youngest. Maybe he’s two or three at the time. A little umbilical hernia, very common, a snap for a pediatric surgeon to fix, is the diagnosis. They live in a city with many very fine medical institutions and they choose one with a sterling reputation for the surgery. A terrible accident occurs during the surgery, a “never” event, a clear case of medical malpractice. Their beautiful third child suffers irreparable, irreversible brain damage and will now require 24/7/365 care for the rest of his life, a life that will likely be cut short, but a life that will dramatically alter the lives of this young couple and their two other children. The case never goes to trial; the hospital and all of the doctors settle the case and the devastated couple and their children receive a very large settlement.

Let’s look at these cases, shall we? Let’s see who won and who lost. First off we should deal with the lawyers. Think of the defense lawyers, the people who defend the doctors (and their malpractice insurance companies), as the “house”. Defense lawyers ALWAYS get paid, just like the casino always takes its cut. Neither a winner nor a loser, the defense attorney just takes his cut. How about the plaintiff’s attorney? Didn’t they lose the first case and win the second? Well, sort of. A better way to think about the lawyers who sue doctors is to consider them professional gamblers who place their bets with someone else’s money. Some are backed by investors who cover their expenses, and others simply use the proceeds of the first settlement they receive. If the defense attorneys are the “house”, the plaintiff’s attorneys are professional gamblers who make their bets using “house money”. Neither winners nor losers here, just scavengers who feed on the carcasses of…

…EVERYONE ELSE! The doctors, the patients, their families, the hospitals, even the spectators–you and me. Everyone loses. You don’t agree? Let’s dial in a closer look.

In the first example Dr. Z made a mistake. He made a delayed diagnosis. Didn’t provide very good care for that particular problem. When Patient X had something bad happen he was convinced it was because Dr. Z missed a diagnosis, and an enterprising plaintiff’s attorney convinced Patient X that he suffered his bad vision because of malpractice. So they sued. It’s pretty clear that the patient, poor X, lost any which way you look at this. Bad vision in one eye. Hopes raised that not only would that bad ol’ Dr. Z be made to pay for his mistake, but Patient X would also receive a financial settlement, maybe even a windfall. BZZZT. Wrong. Sorry. Johnny, tell Patient X about our lovely parting gifts. Not only do you STILL have bad vision, but now you’ve had all of your false hopes dashed adding bitter disappointment to your loss column, not to mention all of the time you spent in the company of all kinds of lawyers.

But…but…what about Dr. Z? He WON. Really? Ya think? Look back at the story. Dr. Z was sued in 2006. He has had to live with this case and everything that went along with it for 4 years. Time out of the office. Time on the phone with lawyers. Giving depositions. Reading depositions in which his patient and a hired-gun physician expert said he was a bad doctor. 4 years of wondering and worrying, thinking about the case, thinking about losing. Looking at every patient as “the next case”. No, Dr. Z lost, too. My world is littered with the carcasses of physicians, and lives, and practices, and marriages, and families that were destroyed by the process of malpractice cases that the doctors WON. Alcohol abuse, depression, suicide, all in cases that the doc won. Nah…Dr. Z lost, too.

How about the second case? Pretty clear that the doctors and the hospital lost this one. Big time. Huge settlement. They messed up and paid the price. That young family won. Made ’em pay, just like the fancy lawyer ads on TV. Big money. But really? Seriously? That child was still grievously injured, and that family is still living with the knowledge that he will never be the child he might have been. 24/7/365 care for 10 years. Housing, schedules, LIVES all determined all the time by medical malpractice, a case in which they prevailed legally. Winners? Hardly. I know this family, and they are gracious and wonderful people who have soldiered on for 10+ years, the only ease being a freedom from the financial burden of their tragedy. What if they had gone to trial and lost? That happens, you know. Sometimes real malpractice happens but the doctors win in court. Nope, no patients ever win in medical malpractice. Not here; not ever.

And the spectators? You and me? Well, we lose every single day. Every time a doc does a little extra just to cover himself in case of a trial, orders an extra test or X-Ray that doesn’t really do anything to promote a better outcome but makes for a little better paper trail, we all suffer due the expense of that defensive medicine. Every time we wonder about why our doctor might be ordering that test or asking that question we lose. When a doctor looks at a patient and sees a potential lawsuit instead of a patient who needs help he loses. The patient loses. We all lose. Think about how many medical errors there are that happen again and again because they are never reported, and therefore are never evaluated and examined to see if they could be prevented, because a doctor or a hospital was afraid that reporting the error would launch a lawsuit. Lose.  Everybody loses in the Medical Malpractice Game.

Well, ALMOST everybody. I guess the “house” continues to win, and the folks gambling with the “house’s money” continue to win. It’s just everybody else who loses. Everybody who counts like every single patient and every single doctor in every single medical malpractice case.

Everybody…like you and me.

4 Responses to “Everybody Loses in the Medical Malpractice Game”

  1. February 15th, 2010 at 4:12 pm

    Neal Van Duyn says:

    Right on. I don’t think the house wins either. Everyone is complaining about the costs. Being the father of two Doctors, I’ve seen first hand how hard doctors work and how unfair the malpractice costs have become. I’m as far a cry from a Democrat as you can get, but I do think Obama is right – the system is very broken and needs to be fixed. See you at the health club.

  2. February 15th, 2010 at 4:51 pm

    darrellwhite says:

    Thanks Neal! Some parts of the system are indeed broken. For example, there is little incentive to do a little more to make a patient more comfortable, have a nicer experience, since all that does is increase cost. Our punitive tort system prevents the gathering of “error data” due to fear that disclosure will prompt a lawsuit. Unfortunately this also effectively prevents any error analysis–we can’t do a root cause analysis of recurring errors if we are unaware that they are occuring, let alone RE-occuring!

    The costs of our system are subtle and insidious, hidden from view but real. Decrease morale and defensive practices increase the “cost” for us all.

    Congrats again, by the way, on the successes of your two daughters!

  3. February 15th, 2010 at 4:52 pm

    darrellwhite says:

    The lawyers always get paid, Neal. The “house” never loses.

  4. February 16th, 2010 at 10:51 am

    Mark Lanza says:

    This isn’t limited to medical malpractice, but tort in general, whether it be claims of product liability, workmen’s comp, etc.

    We’re far too litigious a society, with 50% of the world’s lawyers and one for every 265 Americans. This alone ought to tell us something.

    Good post, Bingo.

Leave a Reply