A Doctor’s View on Medical Malpractice

How many times have you Googled for one purpose and then found something interesting completely unrelated to what you were looking for? This weekend, looking for something completely unrelated, I found a New Yorker article from two years ago on medical malpractice in the comments section of a blog. It is an interesting and somewhat balanced article by a doctor writing about the medical malpractice problem in this country. I disagree with his conclusions but it really is a wonderfully well written article that points out the paradox inherent in medical malpractice cases. Three quotes in the article I found of particular interest:

“Malpractice attorneys are hardly the most impartial assessors of care, but medicine has offered no genuine alternative because physicians are generally unwilling to take financial responsibility for the consequences of their [medical malpractice]. Indeed, the one argument that has persuaded many doctors to be more forthright about mistakes is that doing so might make patients less likely to sue.”
“I watch a lot of baseball, and I often find myself thinking about the third baseman’s job. In a season, a third baseman will have about as many chances to throw a man out as I will to operate on people. The very best (players like Mike Lowell, Hank Blalock, and Bill Mueller) do this perfectly almost every time. But two per cent of the time even they drop the ball or throw it over the first baseman’s head. No one playing a full season fails to make stupid errors. When he does, the fans hoot and jeer. If the player’s error costs the game, the hooting will turn to yelling. Imagine, though, that if every time Bill Mueller threw and missed it cost or damaged the life of someone you cared about. One error leaves an old man with a tracheostomy; another puts a young woman in a wheelchair; another leaves a child brain-damaged for the rest of her days. His teammates would still commiserate, but the rest of us? Some will want to rush the field howling for Mueller’s blood. Others will see all the saves he’s made and forgive him his failures. Nobody, though, would see him in quite the same way again. And nobody would be happy to have the game go on as if nothing had happened. We’d want him to show sorrow, to take responsibility. We’d want the people he injured to be helped in a meaningful way. This is our situation in medicine, and litigation has proved to be a singularly unsatisfactory solution. It is expensive, drawn-out, and painfully adversarial. It also helps very few people. Ninety-eight per cent of families that are hurt by medical errors don’t sue. They are unable to find lawyers who think they would make good plaintiffs, or they are simply too daunted. Of those who do sue, most will lose. In the end, fewer than one in a hundred deserving families receive any money. The rest get nothing: no help, not even an apology.”
“What would most doctors do if someone close to them was hurt by a medical error? In a recent national survey, physicians and non-physicians were given the following case: A surgeon orders an antibiotic for a sixty-seven-year-old man undergoing surgery, failing to notice that the patient’s chart says that he is allergic to the drug. The mistake is not caught until after the antibiotic is given, and, despite every effort, the patient dies as a result. What should be done? Unlike fifty per cent of the public, almost none of the physicians wanted the surgeon to lose his license. Medical care requires that a thousand critical steps go right every day, and none of us would have a license if we were punished every time we faltered. At the same time, fifty-five per cent of the physicians said that they would sue the surgeon for malpractice.”
With respect to the first quote, I think the one thing the article fails to touch upon is my belief that medical malpractice lawyers further quality patient care because doctors are diligent to avoid medical malpractice because they don’t want to be a defendant in a lawsuit. Now, many argue that this leads to unnecessary defensive medicine. I’m sure that is a byproduct of medical malpractice cases although I think the case is overstated. But I’ll take a little unnecessary diagnostic tests in exchange for having a watchdog around.

The second quote is a great metaphor and the comment about never looking at the third baseman the same way was poignant to me. But the difference is a reasonably prudent third baseman makes errors, even on a given throw or catch. If you brought a malpractice case against a third baseman for breaching the standard or care of a reasonable third baseman, you would lose on summary judgment. Doctors do make these kinds of “throwing errors” all the time that are accepted complications of a procedure. But medical malpractice is different. It says a reasonable prudent doctor would not have made that call, would not have performed the procedure like that. But even though very few medical malpractice cases fit the third basement metaphor, it still resonated with me, particularly the part about how no one would suggest the injured victim should not seek compensation.

The final quote I thought underscores the problem we have with the public on the medical malpractice issue: no one thinks it will ever happen to them. Doctors abhor medical malpractice lawsuits. But the majority says they would bring a malpractice action themselves in a case that involves a common medical malpractice error where there were not aggravating circumstances. It is sort of like everyone wants to have lots of prisons and sanitation dumps as long as they are not anywhere near our neighborhoods. No doctor believes in medical malpractice lawsuits unless they find themselves in the shoes of the patient.

No one in my family and no one I know on a purely personal level has suffered a catastrophic loss from medical malpractice. I think many people and I think most people are in the same boat. It is hard to focus on the faceless, nameless people who are suffering from medical malpractice cases when you have scores of doctors figuratively standing right in front of you complaining about their malpractice insurance rates.

The article focuses on a surgeon who stops practicing medicine and becomes plaintiffs’ medical malpractice lawyer in New York. My first reaction was that one of my kids would quit being a surgeon to become a lawyer after climbing over my dead body. What was interesting was the malpractice lawyer said he had three medical malpractice cases filed against him when he was a surgeon, two of which he claimed were without merit. The third was a wrongful death case that he settled for $400,000. With startling candor in a case that cost a man his life, the lawyer/doctor admits this is a case he would take if it was presented to him as a malpractice lawyer.

Essentially, the lawyer/doctor is admitting that his negligence killed someone. That is a hard thing to do. Most doctors can’t do that. This quote underscores why we need medical malpractice lawyers (and personal injury lawyers generally) fighting on behalf of people whose voice is not heard: “Here’s where we in medicine have failed. When something bad happens in the course of care and a patient and family want to know whether it was unavoidable or due to a terrible mistake, where are they to turn? Most people turn first to the doctors involved. But what if they aren’t very responsive, or their explanations don’t sound quite right? People often call an attorney just to get help in finding out what happened.” No one wants to admit they are wrong anyway. This problem is compounded exponentially when a person is accused of killing another person. In the end, this is why the advocacy solution – while remarkably imperfect – is the best and only viable way to address the aftermath of medical malpractice. What to do on the front end to avoid medical malpractice in the first place is an entirely different question.

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