Academic Surgeon Discusses Medical Malpractice and the Importance of Equitable Jurisprudence

When Bad Things Happen to Patients Treated with Good Medicine

On May 5, 2001, I returned home from my first Society meeting where as a new member we were awarded Best Scientific Paper. I wondered why my academic secretary had placed a manila envelope from a law firm on top of my mail. I recall the revulsion I felt when I learned that the mother of a patient was suing me for a sore suffered from a cast I had applied following her daughter’s leg surgery. For two years, I worked with my attorney on my defense. I remember the hours this detracted from family time and clinical time. Even though my patient’s case was eventually dismissed, I still suffered anger, self-doubt, pain and frustration.

This was a pyrrhic victory, as no one had “won,”. Especially not the child who had suffered a known complication from an accepted treatment of her limb deformity. We turned this complication into a catalyst for study and publications concerning cast problems. Hopefully we prevented similar complications by other well-intentioned physicians.

Ten years later, I severely injured a child during scoliosis surgery; she was temporarily paralyzed for ten days and I was forever changed. Prior to walking out of the hospital, her family told me that three local law firms seeking to represent them in a malpractice case had approached them. Yet, they rejected the overtures and told me that bad things can happen. We agreed we had been lucky in the child’s recovery; however, I told them if she had developed a permanent disability, I would have asked them to sue me. They would have needed the money.

My first legal foray left me angry and my second potential malpractice case left me glad for a mechanism that could help my patient even if I fell short. Times had changed for me: in the first case, I worried about me; a decade later, I was worried about my patient.

In an idealized world, or in our currently flawed medical malpractice climate, physicians are needed to evaluate and opine on the standard of care for which this information may be needed to help injured patients. Often times physicians will refuse to become involved in these instances; I find this paradoxical…of course I will help a child heal from a fall off a skateboard…why won’t I help this same child if injured during her treatment? If medicine had fallen short in its well-meaning efforts to cure this child…then medical experts should evaluate its shortcomings and help the child recover economically from this injury too. In both instances, only educated and ethical physicians can deliver the needed care as well as to provide unbiased opinions on the treatment rendered especially if it had resulted in injury.

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As a tenured professor, I have occasionally been approached to review potential cases of medical malpractice. Although I may be asked to review these cases by either plaintiffs or defendants, the distinction stops there. I believe the just method is to evaluate the case in the best interest of the patient, regardless of who is requesting my services.

My opinion is solely based on whether the standard of care was met and whether reasonable informed consent was established. If I believe that the patient was unnecessarily injured, I will suggest that the defending attorney settle the case as soon as possible as the patient needs financial help to navigate the remainder of his or her life. If I believe that appropriate care was rendered, then I will tell the plaintiff to drop the case. I fear that hired-gun medical experts have made medical malpractice onerous; many have stopped working on behalf of patients. Instead they feel compelled to generate an opinion that the attorney wants to hear.

How should we gauge success or failure in medicine today? Medicine is full of cycles. As a profession we have found ourselves returning to older treatments and concepts that had fallen out of favor due to “newer” dramatic tests and treatments. So too has the pendulum swung back to the Latin words that generations of newly minted physicians have recited…primum non nocere…”first do no harm”. For a variety of great reasons, safety and avoidance of complications have justly become more important than glitzy treatment that may or may not cure a patient. Yet despite new focus, systems based approaches and protocols to avoid complications…bad things can happen by good providers. This is unfortunate and these patients need resources to navigate life with unintended new disabilities.

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Unfortunately no uniform system exists to administrate these grievances. Certain states have such inflammatory tort laws that some physicians are forced to give up delivering babies, are unable to provide neurosurgical care for head-injured patients, or must pay malpractice insurance in the six-figure range. Personally, I wish our society would acknowledge that bad things do happen and that these unfortunate events should be fairly arbitrated to benefit the patient and improve safety of the medical profession through education. Too often attorneys and patients attempt to unreasonably profit from real or imagined medical malfeasances.

Currently the malpractice community can help an injured patient gain some monetary salve for their experience. In cases where malpractice cannot be established, health providers are vindicated. Unfortunately, the benefits stop there. In cases of medical injury, the associated healthcare team obviously learns of the problem, but does the medical community? How many times must a problem occur in small hospitals and practices throughout the United States before healthcare professionals are alerted to the problem? Finally, what about the patient who receives state of the art care and has a complication…are they just out of luck?

In medicine, the buzzword is “never-event.”. The goal of medicine is to prevent many complications from ever happening. A noble goal to be sure in this imperfect world. The reality is that unexpected things happen to patients, even when treated with good medicine. Unfortunately these patients are out of luck, as the current legal system makes it impossible to adjudicate chance and provide assistance.

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What would I do if I were King? Physicians and hospitals would no longer pay private insurers to protect them in cases of malpractice; instead, these dollars would go to a Medical Injury Fund, which would be managed by a publicly appointed Patient Safety Commission. Through this process, an injured patient would have their legal fees paid by the Fund. Attorneys for the patient would present their case to a Medical Review Board consisting of judges, social workers, rehabilitation specialists and other appropriate experts. The defendant health care professional or entity would also have their attorney fees paid for by the Medical Injury Fund. Both parties would call upon certified medical experts to evaluate their case. In cases of frivolous lawsuits, the plaintiff may be required to pay some portion of the legal fees, at the Board’s discretion.

In cases of patient injury, the Fund would provide the patient with a monetary award. The offending physician or hospital would be mandated by the Medical Review Board to undergo education, evaluation of their system or practice, and possibly face disciplinary action. The Public Safety Commission would publish these complications to the entire medical community in hopes of preventing similar issues in other patients.

What about patients injured from good care? It’s hoped that dollars would remain in the Medical Injury Fund, removing current costs and profits garnered by insurance companies. These funds would no longer go to middlemen hoping to profit from medical misfortune but to help in life’s transition for those unfortunate souls who have suffered from appropriately executed treatment.

After all, it’s about the patient.