MEDICAL ECONOMICS

 

The suit was frivolous, but I was trapped anyway

Eyeing a $1.4 million award, the plaintiff's lawyer spun a legal web that entangled the author for eight frustrating years.

The case had dragged on for eight years, the trial had lasted five days, and the jury had deliberated for three. As the jurors finally filed into the courtroom, I searched each face for some sign of my fate.

Although I felt I was blameless, my ex-patient's lawyer had been so persuasive that at times I doubted my own memory. If the jury believed him, I faced the threat of a $1.4 million judgment, $400,000 more than my insurance coverage. I feared for my home, my kids' college educations, my reputation and my professional future.

I stepped into this malpractice quicksand some years ago in the small town in the northeast where I'd been practicing surgery for nearly a decade. When a young patient I'll call George complained of upper-abdominal pain and bright rectal bleeding, his FP admitted him to the local hospital for a battery of diagnostic tests. His barium enema was normal, however, and the upper-GI films were only mildly abnormal. So the FP referred him to me for a gastroscopy and procto.

With amnesic sedation administered by a competent nurse anesthetist, I did both procedures--including a gastric biopsy--as well as a sigmoidoscopy. These went as smoothly as any of the hundreds I had performed. George was sedated, relaxed, and responded appropriately to our instructions and questions. When we were through, he was taken to the recovery room, and I went back to my office.

During my rounds the next day, George complained of a slightly irritated throat. He also mentioned a mild soreness in his right shoulder. But since his physical exam was normal, and since the endoscopic and biopsy findings didn't suggest the need for surgery, I referred him back to his FP.

Fear, then relief, then anger

Several months later, George seemed part of the distant past when an orthopedic colleague casually mentioned that he was seeing George for a "neurological" problem in his shoulder. George had apparently been referred to a physiatrist in a nearby city who'd suggested that his problem had somehow resulted from my gastroscopy.

Shocked, I vaguely recalled that George had mentioned soreness in a shoulder following the gastroscopy. I asked the orthopedist which shoulder had the problem, and he said it was the left one. I raced up to the medical records office and confirmed my recollection: George had complained to me about his right shoulder.

Looking through George's records since I had seen him, I learned that he'd reported the left shoulder pain about a week after the endoscopy, and that it had become progressively more severe. He'd seen several other specialists who had prescribed various remedies, including physical therapy and steroid injections, with no improvement. Eventually he'd had shoulder-fusion surgery.

While I felt sorry for George's suffering, I wasn't personally worried; his left shoulder had been normal for several days following the endoscopy. That was well documented not only in the referring FP's progress notes but also in a detailed set of nursing notes.

Just before the two-year statute of limitations would have expired, my office manager dropped a thick envelope on my desk. By that time, I'd forgotten George and his shoulder. But when I tore open the envelope, the case returned with frightening clarity. It had actually happened; I was being sued.

In the first of many insults I would endure, I read a reference in the complaint to "the defendant, R.I. Brandt, MD.,....who holds himself out as a specialist in the field of general surgery." The suit charged that because of my "carelessness, recklessness and negligence," George had "sustained a severe, permanent and paralyzing injury to the muscles, ligaments, bones, nerves, and tissues of the left shoulder and left arm." The cause was alleged to be injury to the left brachial plexus, and the suit accused me and the hospital employees of "negligently failing to properly place, position and move" the patient during the tests.

The suit sought recovery not only for the "pain and agony" of the physical injury, but also for medical expenses, lost wages, and loss of "society, companionship and services" by George's wife. The suit also named the hospital and George's family physician, who was accused of choosing a surgeon "not properly qualified to perform" the endoscopic tests.

My immediate feelings were a confusion of anger, frustration, disbelief and fear. My first impulse was to call George and try to talk some sense into him. I had given him excellent care, and he must have known it. But my malpractice insurance forbade any communication with George except through our attorneys, and its representative warned me, "Don't discuss this case with anyone else either."

After filling out a lengthy questionnaire for the insurance company, I had to respond to equally time-consuming interrogatories from the plaintiff's lawyer. Most of the questions seemed redundant, but I had to be careful because he was clearly trying to spin a web that would entangle me. After sweating over each word one evening at home, I drove around in search of a notary who didn't know me, who wouldn't blab all over town that I was being sued for malpractice.

Delays, then activity, then cancellations

It was nearly two more years before my deposition was finally scheduled at my office. My lawyer, Ralph, lectured me at length on the importance of sticking to the facts and controlling my anger. I tried, but some steam did escape. Later, when I read the depositions taken from George and his family, I found them filled with distortions.

Ralph informed me whenever anything happened, but there were long periods of silence. So I would allow myself the naive hope that the lawsuit was being abandoned. But then there would be another flurry of activity, followed by more delays.

The mental and emotional strain of that period took its toll on my professional and personal life. Often I was told to appear for legal events that were canceled and then rescheduled. At home, my wife and I lived in constant fear that the case would end up in the local paper and damage my reputation. (One brief item did appear after the trial.) Occasionally my preoccupation with the case distracted me from my usual enjoyment of my kids.

Finally, the case was firmly scheduled for a hearing before a state arbitration panel. Ralph explained the etiquette and how to be a competent witness. At the hearing, I saw George face to face for the first time in seven years. He appeared frail and weak when making his way to the witness stand.

George's lawyer put on quite a show, full of insinuations and distortions, at least in my view. And, as if he suspected the panel might not buy the "positioning" theory, he suggested another possible cause for the injury: George might have been dropped in the operating or recovery room. To emphasize his client's feeble condition, he showed the panel George's brother--a strikingly muscular fellow--and pointed out that the brothers used to resemble each other before the "botched" endoscopy.

The hearing also gave me a chance to discover who the plaintiff's expert was: the out-of-town physiatrist consultant. He'd convinced George and his lawyer that the shoulder injury must have occurred "before, during, or immediately after" my gastroscopy.

Eventually my turn came to defend myself. The top neurosurgeon at a local university testified that George was suffering from brachial plexitis, but held that it had nothing to do with my routine procedures. While I found his testimony encouraging, the hearing panel members remained stone-faced as we adjourned for a long weekend.

About that time, however, the state Supreme Court declared the arbitration system unconstitutional. That meant our hearing panel was dissolved, and the case was scheduled for a jury trial. Over the next year and a half, while waiting for the trial, my wife and I shared the tension of this seemingly endless ordeal. Ralph felt certain the case should be tried, not settled. But he warned me honestly that because George's physical problem was real, it could translate into a lot of dollars if the jury believed the plaintiff's story.

Anger, then shock, then a chance to be heard

After more scheduling, canceling, and rescheduling, my trial finally started on my 50th birthday. Ralph asked me to be in court throughout the trial, even during the jury selection, in order to show "appropriate concern." He didn't have to worry; I was more concerned than he or the jurors could possibly know.

Some prospective jurors were excused because they or their families were my patients, or knew my wife. I had no opinion one way or the other about most of them. But one was an insurance agent whose family doctor, a man well known for high ethical standards, practiced far from town. I figured that if this man was willing to go out of his way to see such a doctor, I wanted him on the jury. I explained this to Ralph, and we got him.

George's lawyer replayed the plaintiff's version of the now nearly 8-year-old drama, with embellishments and theatrics for the jury's benefit. I sat there steaming, but Ralph remained calm, waiting for his turn.

When the plaintiff's side produced as an expert witness an economist from a local college, I was particularly upset because I knew this fellow personally. I was serving on the college's board of trustees at the time, and his wife had been my patient. As I stared at the floor, worried about my own finances, this economist calculated George's potential loss at $700,000 for current and future medical expenses and lost earnings. Punitive damages could double it.

The pivotal issue in the trial turned out to be the timing of the "injury" to George's shoulder. Since the plaintiff's medical expert, the physiatrist, never showed up at the trial, his deposition was read to the jury. According to his testimony, the injury had occurred either in the operating room or in the recovery area. But using the information provided by our own expert neurologist who'd examined George and reviewed his medical records, Ralph pointed out inconsistencies in the physiatrist's testimony, including his math, which actually showed that the injury must have taken place after the period of hospitalization.

The day before I was to testify, I was shocked when Ralph relayed an informal offer from the plaintiff's lawyer: He would drop me from the suit if I'd agree to imply that the hospital's or FP's care had been somehow flawed. I was outraged, but Ralph wasn't surprised. Naturally, I refused the offer.

When I finally took the stand, I brought in a nurse from the endoscopy unit who assisted me in demonstrating the gastroscope for the jurors. They had a chance to look through it and feel its softness and flexibility.

In his summation, George's lawyer tried to show exactly how the "injury" had occurred by pulling his arm about his head to illustrate how we'd damaged George's brachial plexus during the gastroscopy. The jury watched in rapt attention. Then Ralph gave his summary, refuting that hypothesis point by point. Finally, the judge charged the jury, and the long wait began.

Suspense, then relief, then sorrow

During the first day of deliberation, I fidgeted in my chair and took notes, knowing that someday I would want to share the story of my ordeal. As president of the hospital's medical staff at the time, I was scheduled to chair the monthly executive committee meeting that evening, so I called and said I wouldn't be able to make it. Then the judge announced that he had a social engagement and released us until the next day, so I managed to attend the meeting after all. It felt good to be back in the hospital's friendly halls.

On the third day of deliberations, the judge called the lawyers into his chamber and told them the jury was deadlocked. When Ralph emerged with this news, we talked about the possiblity of a retrial. But after a discussion, we decided that some jurors must have strong feelings in our favor to have held out that long. Besides, the idea of repeating the whole nightmare before another jury was more than I could face. So the judge urged the jury to continue trying to reach a decision.

Later that day, as I was phoning my office to cancel more appointments, Ralph interrupted me with news that the jurors had a question for the judge. But it turned out they only wanted to review some testimony. "Well," Ralph quipped, "that's better than asking for a calculator." At that point, I had difficulty appreciating his humor.

Finally, near the end of the day, the jury notified the judge that it had reached a verdict, and we all reassembled in the courtoom. I was on the edge of my seat. For better or worse, my eight-year ordeal was finally over. The jurors' faces gave nothing away, but then came those cleansing words: "The jury finds for the defendant on all counts." As relief flooded over me, the clerk read the rest of the jury's verdict also finding no negligence on the part of the hospital or the FP.

The jury's decision left George and his family glum and poor instead of ecstatic and rich, and they left the courtoom quickly. His lawyeer seemed to be handling the defeat rather well, however. He walked over and offered me a conciliatory handshake. He admitted he'd had a difficult case. But having prepared for so long, he'd felt it had been worth going ahead and taking his chances with the jury.

Some celebration, but additional worry

Ralph and I left the courthouse for a nearby restaurant to celebrate. As we savored our victory, he noticed one of the jurors, the insurance agent, sitting across the dining room. We invited him to join us. He told us the jurors had been deadlocked 7-5 in my favor. Some of them had taken turns climbing up on a table and trying to contort themselves into the suggested position. But when they found they weren't able to, they concluded that the plaintiff's theory of injury was untenable. That swung the vote to 11-1 for the defense, and we needed only 10.

Still, my ordeal wasn't over. The plaintiff requested a new trial, but was turned down. For a time he considered an appeal, but ultimately decided against it. Finally, exactly eight years from the date of the gastroscopy, I received a formal letter from Ralph stating, "You may now consider this matter concluded."

Along with relief, I felt emotionally drained. But I also felt sorry for George. Some seven months after the procedure, he had become so depressed that he attempted suicide. And he must have suffered as I had over the years of endless delays and reschedulings of the trial. Perhaps depression and his hopes of a financial windfall had kept him from vigorously pursuing therapy that could have helped him.

George's experience made me realize that the current malpractice system is horrible not only for physicians who become targets of frivolous suits, but for the patient-victims as well. Whatever the cause and nature of his medical misfortune, George had endured eight years of pain, disability, and emotional turmoil--much of it possibly unnecessary.

Based on my own experience with that system, my verdict is that it benefits only one group: lawyers. On the other hand, I discovered that there are some excellent lawyers, like Ralph, to whom I will be eternally grateful.

Unfortunately, my experience tended to influence the way I treated subsequent patients. I became more defensive, more cynical, less likely to put a fatherly arm around a patient's shoulder and say, "I'll help you through this."

A year or so after the trial, because of a previous injury in an auto accident, I stopped practicing surgery to become a quality consultant for hospitals. George's malpractice case wasn't the reason for my career change, but it certainly helped me make up my mind. While I still love medicine and miss doing surgery, I'm relieved to no longer face the constant threat of a malpractice suit.