Blog | Thursday, September 29, 2011

The cost of medical malpractice: part 2

A recent post was about medical malpractice and what it costs us in dollars. This time I want to take up a different cost: the human one. This post is not going to be easy.

As a physician, being sued for malpractice is a concern that enters my mind at least fleetingly on a daily basis. A recent article from the Aug. 18 issue of the New England Journal of Medicine is being widely quoted. Surveying claims data and a national databank of malpractice data, the study reported that by the age of 65 years, three quarters of doctors in "low-risk" specialties had faced a malpractice claim, and nearly all physicians in high-risk specialties had been exposed. They estimated that nearly half of us would be sued by the age of 45 years. Each year, an average of 7.4% of physicians had a malpractice claim filed against them. But, according to the study, a little more than three-quarters of all claims did not result in payments.

The threat of medical malpractice suits has an incalculable effect on the way doctors practice medicine in this country. I have already talked about the numerous unnecessary tests ordered by doctors practicing "defensive medicine." I have already talked about the way in which we are advised to obtain "informed" consent by scaring our patients half to death just by discussing every conceivable risk of even the most minor intervention. But I have not talked about the profound effect a malpractice suit has on the individual who is sued and the ripple effect it has on his patients. This post is about the effect it has had on me.

I am in what might be considered high-risk specialty. In other words, if I make a mistake somebody could conceivably be seriously injured or die as a direct result. Fortunately, such opportunities are a rather small part of my professional life in the same way that although driving to the grocery store is not considered a high-risk activity, there is always the possibility of going through a busy intersection and making a monumentally wrong maneuver and killing someone. In specialties that consist mainly of prescribing medication, medical misadventures are rarely immediately apparent, whereas in procedural specialties such as my own it becomes quite obvious if there is a mishap. So it is inevitable that someone like me will eventually be sued for malpractice. I don't think about auto accidents much, perhaps because I have thus far been lucky enough not to be in one. That was my attitude about malpractice.

A few years ago I was named in a suit involving a patient whose care I participated in and who had an "adverse outcome." She died. In spite of two years of diligent testing, and treatment by her physicians, we failed to recognize one of the less common but serious health consequences that her particular habits had led to. The patient's family blamed the primary care doctor, the consultants, and the first surgeon that was called to treat her. Perhaps all would have been forgiven if the second surgeon involved in the case, by which time the diagnosis was quite obvious in hindsight, had not told the family "If only they had sent the patient to see me sooner I could've done something." I don't think any of us was negligent or did not live up to the "standard of care," but that is what we were sued for.

I had never been sued before. I had attended a number of seminars over the years on how to avoid being sued when there is an adverse outcome. One of the most frequently repeated messages was the importance of maintaining a good relationship with the patient's family. Numerous examples were given of doctors who were sued only because they had made the patient or family angry, even though their care has been exemplary. There were numerous other anecdotes about patients who might justifiably have sued their physician but chose not to because they had a very good relationship. I pride myself on nurturing my relationships with my patients, communicating well, and maintaining what patients usually call a good "bedside manner." I even took what I now realize was a foolish pride in the fact that I had never been sued. I know now I had merely been lucky.

One day I was in my consulting room, in between patients, when my secretary buzzed in to say that there was a sheriff's deputy there to see me. I have occasionally been asked to provide legal documents for patients but on this occasion I couldn't imagine what was the purpose of the visit. I welcomed the gentleman into my office and his first words were "Doc, I'm really sorry because I have heard that you are really good doctor but I have to serve you with this." He handed me a thick envelope and with a few further apologies promptly took his leave. I opened it. Inside was an official court document informing me that in essence, I was being sued for malpractice in the matter of a particular patient and a list of allegations of various ways that I had failed to meet the standard of care for doctors in my specialty.

Although the implications are not nearly as serious, the initial sequence of emotions one goes through on receiving such news is not unlike people's reaction on learning that they have a diagnosis of cancer. I couldn't believe it. I was shocked. Then I was angry that I was unjustly "accused." But after that the sequence diverged. I didn't bargain. I set to thinking about what I might possibly have done wrong or could have done differently in that patient's care. I engaged in self-recrimination. I was angry at myself for having allowed this to happen; I must have done something wrong. That was the topics that was preoccupy me for the next few days and even weeks. Like many doctors, I am perfectionist and compulsive. After all, wasn't I was one of the select few talented enough to be granted the honor of great responsibility? Didn't I always get A's? I expect my work to be perfect. It is a great blow to think that one might have injured someone because of having made a mistake.

Of course my first response was to notify the risk management office at my insurance company. The attorney in charge there gave me my first of many legal instructions: don't discuss anything about this matter with anyone at all, not even, and especially, not the other doctors named. I was offered a list of defense attorneys to choose from. I asked around as discreetly as I could and chose one well known to be a skilled defense lawyer. His first advice was: "Don't discuss anything about this matter with ..."

When misfortune strikes us, one of the greatest consolations is the emotional support we get from other victims. I would have yearned to compare notes with my colleagues who were also named. There were only two people I could look to for support whose testimony could not be discovered and presented as evidence for the plaintiff: my lawyer and my wife. Both were sympathetic and supportive. But my wife got to share the emotional burden. My wife has always been a fantastic cheerleader but I knew she was somewhat biased in my favor but there was to be no support group of my peers.

The next step was a deposition. This is a legal proceeding where the attorneys get to question the potential witnesses about all aspects of their involvement in the case, including their knowledge of their specialty, the diseases involved, the nature of their practice, their credentials, their attitudes, and anything else that might conceivable have any bearing in a trial. For the attorneys, it is like dealing the first two cards in a game of Texas hold 'em poker. The information might be useful in a trial, but it might also be useful in gauging the relative strength of one's opponent and bargaining to settle the case rather than go to court.

A deposition usually starts out with routine questions and works its way to the most critical examination of what actions or inactions are alleged to have been a breach of adequate care. As the line of inquiry proceeds, it becomes increasingly stressful. The aim of the plaintiff's attorney is to get the doctor into a rapid-fire rhythm of responding to questions without careful forethought and to lure him into offering more information that was required by the question. My deposition was definitely stressful. I had never been deposed. I was apprehensive. On the way there I kept thinking of the concluding scenes in an episode of Perry Mason when the guilty party succumbs to a withering cross-examination. The deposition room proved to be a rather comfortable non-threatening environment. All were introduced and pleasantries exchanged. The questions began. The opposing attorney was alternately pleasant and then condescending and pugnacious. My lawyer called for "time outs" when he saw I was losing my cool. The session continued and broke for lunch. The questions became more and more critical. Finally, the plaintiff's attorney shrugged and led me to think his questioning was concluded only to turn and say, "Oh, by the way ..." Then came the really accusatory series of questions. Somewhere along the way, it became clear that even if he was unable to get me to admit to some negligence on my own part, there was a potential I could be called as an "expert witness" and compelled to testify on behalf of the plaintiff that my colleagues had committed malpractice! Among the emotionally stressful experience in my life, this one is well up there; I even find my pulse quickening just writing about it.

I returned home exhausted and relieved to have gotten through it. My wife offered me a martini. I knew that the next step in the process was a trial, which was not to take place for some time, so I returned to the usual cares and pleasures of work and family. But there were always occasional reminders of the situation that would hit me in the middle of my workday. And there was a definite change in my medical practice.

With every test I ordered and every drug I prescribed, a host of potential risks and side effects came to mind, even the remote ones, and I felt compelled to enumerate them in a way I never did before. My usual confidence in knowing the proper course of management was shaken. I began to view every patient I was trying to help as a potential adversary in a suit. I even began to look at each of my oldest patient relationships with different eyes. "I know this person loves and trusts me, but might they change their mind and sue me if I make a mistake?" I asked myself. An invisible emotional curtain descended between my patients and me.

I had previously had contempt for other doctors who seemed to be practicing defensive medicine. There was a colleague whose patients occasionally came to me for a second opinion or because they didn't get along. I would review his notes and see how he documented two paragraphs of all conceivable risks and complications; I thought it was a completely misplaced sense of priorities. My attitude changed; now I understood. Now I found myself ordering more CT scans and bloodwork. The radiology report that said "consider follow-up MRI to further characterize the lesion," which I used to dismiss when it was clearly an artifact or an incidental finding, now merited that follow-up as recommended. After all, even if the procedure was expensive, uncomfortable, anxiety-provoking and the chance one in a thousand that there was something serious there, why should I be the one to take the risk of a lawsuit.

I am sure my patients suffered from my experience during that time. I was more distant. I was depressed. I felt "burnt out." I was not my complete empathetic self. I put my patients through tests that were probably "overkill." I did not spread optimism and confidence with every encounter. I left home in the morning not looking forward to the day and came home tired and unfulfilled. Fortunately, I eventually got over it, but not for some time. Here's why: Mainly, to my great relief, the suit never came to trial. It was settled within the next year. I don't know what it cost my insurance company. My lawyer advised me it was in my best interest not to know for how much and what was my share of the settlement. I also had to agree never to discuss the particulars of the case or the nature of the settlement with anyone, ever (except of course my attorney and my wife). The emotional ordeal was over. But it still took months for me to get past some of the consequences of my experience.

And only now, a few years later, this is the first time I find myself able to discuss it. Was this post cathartic? No, not really. I have already made my own peace with myself. But perhaps it will help someone else.

David M. Sack, MD, is a Fellow of the American College of Physicians. He attended Harvard and Johns Hopkins Medical School. He completed his residency at Lenox Hill Hospital in New York City and a gastroenterology fellowship at Beth Israel-Deaconess, which he completed in 1983. Since then he has practiced general gastroenterology at a small community hospital in Connecticut. This post originally appeared at his blog, Prescriptions, a series of musings on medicine, medical care, the health care system and medical ethics, in no particular order.