Medical Malpractice

Copyright (C) 2004 Robert S. Rosson. All Rights Reserved.

INTRODUCTION

During my nearly four decades as a gastroenterologist  in Connecticut I interacted with the medico-legal malpractice system many times and in many ways.  I was sued, served as an expert reviewer, was deposed, and gave testimony as an expert witness for the defense and for the plaintiff.

This represents a series of anecdotes related to my experience with a flawed and traumatic (at least to the physician) system.  It is not an attempt to write a comprehensive treatise on the subject, but rather to give snapshots of the system from the inside.  The stories are all true, although the names of the participants and some of the cities have been changed to protect the innocent and the guilty.

PART I: MY FIRST TIME

It was my fifth year of practice.  I was making rounds at the Hartford Hospital when my beeper went off.  I picked up the outside call to hear my wife sobbing on the other end of the line.  I pictured her sitting at the kitchen table, with the youngest child throwing food on the floor from his high chair.   The older two were   off to school. “What’s wrong,” I said.  “This awful man came to the door and gave me a paper along with a dollar.  It says you’re being sued.  When she told me the plaintiff’s name I remembered the case.  Two years earlier an esophageal perforation had occurred during the dilatation of a benign stricture.  The complication had been recognized, and the patient had been operated on successfully with full recovery.  When I later read the subpoena I found it accused me of every crime short of bestiality.  It is hard to describe the feelings that one experiences the first time one is sued for malpractice.  It is a combination of anger, denial, guilt and helplessness.

Over the next two years there followed a series of annoying, distracting and frustrating events.  First there was the visit from the insurance adjuster for my then malpractice carrier.  A young well-dressed man came to my office, listened to my story and then informed me that the company might not cover me for this incident since the patient and his wife insisted that I told them that “this was all my fault.”  I assured him that I had only said that the perforation was a complication of the procedure as I had informed them pre-operatively. He left looking unconvinced and I was plunged into depression thinking that my limited assets   were about to disappear.

There followed a visit with the defense attorney for the insurance company, and a session with a peer review committee of the hospital.  Finally I was deposed by the plaintiff’s attorney who spent hours trying to find faults in my informed consent methods, the indications for the procedure and the actual conduct of the dilatation.  The outcome of all this was a recommendation by the insurance company that we settle for a nominal sum.  It was a difficult concept for me to understand, but I was assured that this was in no way an admission of fault or guilt.  It was rather a legal device to get the case off the books, eliminate the risk of a big jury award and avoid the time and expense of a trial.  These days the insurance carriers are much more reluctant to settle if a reasonable defense is possible.

Three years later I was called to see a woman in consultation in the hospital.  When I saw her and recognized the name, I realized it was the wife of the patient who had sued me.  When I called this to her attention she said “Oh, we weren’t suing you, we were suing the insurance company.”  I told her it would be difficult for me to have a satisfactory doctor-patient relationship with her and arranged to have another consultant see her.

PART II: ON BEING AN EXPERT WITNESS

Experienced plaintiff’s attorneys usually have a potential case reviewed by a specialist in the area involved.  I reviewed many such cases and found that, in most instances, if I felt there was no malpractice the attorney would not proceed further with a suit.  Since plaintiff’s attorneys usually work on contingency, they have little interest in running up large costs in a case with little chance of success.

I often reviewed cases for defense attorneys as well.  Depending on my findings the defense would either try to settle, have the case peer-reviewed, or plan on a full-fledged defense.  In the latter instance I would be disclosed as an expert witness for the defense.

Meanwhile the plaintiff’s attorney would try to find an expert to testify against the accused physician.  Such experts are often hard to find.  Physicians usually do not like to testify against colleagues practicing in the same state.  There are physicians who derive a large portion of their incomes from malpractice cases and many of them sign up with services that help locate them.  These experts are known in the trade as “hired guns” and are not well regarded by Connecticut juries.

In a case in which I was sued, involving bleeding from an endoscopic sphincterotomy, the plaintiff’s so-called expert was an out of state surgeon who did only office lumps and bumps. Although we would have surely prevailed in court, this case, on advice of the judge, was settled for a minimal sum. This allowed the plaintiff's attorney to cover his expenses and to bow out gracefully.

When I reviewed cases I learned quickly not to take notes or write on the records.  I also learned not to identify textbooks or journal articles upon which I based my opinions.   I was also told by the defense attorneys not to generate a written report but to give my opinions in the form of a verbal report. All of these measures were designed not to provide material for the plaintiff’s attorney to use against you at deposition or trial.

As a case progresses the various parties involved including the medical experts are deposed as part of the discovery process.  In a deposition the witness is questioned under oath by the opposing attorney.  I quickly learned to try to answer questions in a yes or no fashion, and to try not to say things casually.  In a subsequent trial anything said at deposition can be, justly or unjustly, thrown in one’s face in an effort to confuse or contradict one’s testimony.

Although I usually kept my composure at deposition, one particularly aggressive plaintiff’s attorney, whom I shall call Jake Maloney, was so provocative that he and I found ourselves standing up and shouting at each other, almost coming to blows.  These feelings were not diminished when we later faced off in court. (See Part III – The Hurried Gun.)

PART III: THE HURRIED GUN: A MALPRACTICE TALE OF TWO CITIES

It was an amazing sequence of events.  I had been consulted on a case in Fairbridge, CT involving the perforation of the esophagus during a balloon dilatation of the esophagus for a disease known as achalasia.  As in my case in Part I the complication had been recognized and treated in a timely and successful fashion.   When the case finally came to trial, I was in the court room prepared to testify that the defendant gastroenterologist had not violated the standard of practice for this condition.  For some reason a juror passed a note to the defendant commenting on some aspect of the case.  When this was called to the judge’s attention he immediately declared a mistrial.  When the trial was rescheduled, my problems began.

I had also been declared an expert witness in another case this time in Oceanview, CT.  The case involved an elderly woman who had been admitted for evaluation of weight loss and poor appetite.  Before her work up was completed she died suddenly in the hospital.  The cause of death was not clear even at autopsy.  The gastroenterologist was accused of failing to diagnose her condition and thereby preventing her demise.  I was to testify for the defense the same day of the rescheduled trial in Fairbridge. To make things worse, my wife and I had long-standing plans to go on vacation the day after these trials.

After discussions with both defense attorneys it was decided to proceed with the Oceanview trial in the morning and the Fairbridge trial in the afternoon.  I was to be given a driver to take me from one courthouse to the other as soon as I was released from the witness stand.  This arrangement was to be concealed from the plaintiffs and the juries to avoid having me appear to be a “hired gun.”

I took the stand in Oceanview and gave my testimony for the defense.  I was then cross-examined at length by none other than my old adversary, Jake Maloney, as noted in Part II.  For some reason the judge insisted on frequent recesses, and I saw the time slipping away.  During the recesses the excellent defense attorney, whom I shall call Dave Carlisle, treated me like a boxer’s corner handler.  “You’re doing fine, Doc,” he said, figuratively rubbing my back.  “Stop looking at the clock; we’ll have you out of here by 12 noon.”

Jake kept after me, however, and even tried one of the oldest tricks in the book.  He suggested that an x-ray I had reviewed was put on the view box upside down.  I assured him and the jury that the film was hung correctly.

Finally, at 12 noon, it was over.  I grabbed a Coke and a sandwich from a vending machine and jumped into the livery car. After a wild ride down Interstate 95 I walked into the Fairbridge court at exactly 2 P.M., trying to look calm and collected.  I gave my testimony to the effect that the gastroenterologist had breached no standard of care. I arrived  home  totally drained and  collapsed into bed with hardly a word to my wife.

The next morning my wife and I were on the plane to Phoenix.  She reached over and touched my hand.  “How did things go yesterday?”  “Fine” I replied.

When we returned home, I learned that the juries had found for the defendant doctors in both trials.

PART IV: TESTIFYING FOR A PLAINTIFF

I appeared in court several times as an expert witness for the defense; we won each time.  I was asked only once, in 1986, to testify for the plaintiff against a hospital.  I found the case so compelling that I agreed.  The case involved a 41 year old African-American from Annapolis, MD, with pre-terminal cirrhosis of the liver of unknown cause.  His only hope was to obtain a liver transplant.  He contacted a well-known transplant surgeon, Dr. Theo Allstar, who urged him to come to his hospital in Philadelphia.  When he arrived, however, the hospital refused to admit him when his HMO in Maryland refused to guarantee payment for liver transplantation, then a relatively new procedure.  He was placed in a halfway house where he rapidly deteriorated and was admitted to the hospital.  Meanwhile a donor liver of the right size and blood type became available and was transplanted successfully into a white woman who was called in by beeper from New Jersey.  The Maryland patient died a week later.  

The family retained Daniel Berger, an outstanding attorney from Baltimore, who took on various plaintiffs’ cases for minorities and the underprivileged, but usually not medical malpractice.  The family was of modest means and could not afford a liver transplantation without the coverage of the HMO.  In desperation the patient’s wife and mother had held a bake sale for the transplant whereby they raised $75.00!!

The case ultimately came to trial in Maryland.  The surgeon, who was not named as a defendant in the suit, testified in defense of the hospital.  I testified that the patient urgently needed a liver transplant, and that his chance of survival was a least 75% with a transplant and nil without.  I further argued that the donor liver that became available should have gone to the Maryland patient.  The defense attorney tried to shake my testimony, according to my recollection, with this memorable exchange:

                Q:  “Doctor, do you know Dr. Allstar?”

                A:  “Yes I do, by reputation.”

                Q:  “Isn’t he GREAT?”

                A: “Yes he’s great.”

                Q:  “And, you - YOU dare to disagree with him?!”

                A: “Yes sir, with all due respect, I do.” 

The jury found for the plaintiff and awarded his widow $2,000,000.

CONCLUSION

Large amounts of time, money and effort go into these cases.  Of those that go on trial (most are dropped or settled without going to court) somewhere between 61-92% are won by the defense. (Data from The Medical Protective Company.)  The current crisis in malpractice insurance premiums is predominately the result of large jury awards in those cases won by plaintiffs as well as investment losses by the insurance carriers.

What is needed is a better system to protect both patients and physicians.  A cap on jury awards for pain and suffering, as recently debated in the Congress, is a good first step.  A no-fault system administered by an arbitration panel would go a long way toward settling these disputes, and result in significant savings to the health care system by reducing malpractice premiums and lowering the cost of defensive medicine.

    

Published originally in YJHM March 1, 2004