The story below was taken from an interview with a former Massachusetts CIR member who agreed to share her experience as a defendant in a malpractice suit that started in 1999 and continued through 2009.
Dr. J was a second-year internal medicine resident doing an ER rotation. She saw a middle-aged man who was very ill and had abdominal pain. Over the course of a few hours, she wrote the initial H&P, ordered some tests, and recorded the initial results. That was the extent of her interaction with the patient before another resident and the attending took over.
Three years later, in her first year as an attending, she was served with a summons for a bad outcome and was sued. As it turned out, the man had improved somewhat at the hospital and was sent home, but returned the next day with a rare complication and ended up having a bowel resection and sepsis. Surprisingly, he survived, although the complications were lethal. He had a short bowel, which meant ongoing problems. The man had been homeless and alcoholic, and after the incident he became even more marginalized. He died five years later.
He sued the residents and the hospital, alleging that they should have made the diagnosis, but it was a very rare diagnosis, involving a congenital defect, and would have been very difficult to make in an emergency setting, Dr. J explained. After he died (a year or two after initiating the case), his sister became the plaintiff. Then she died, and his daughters became the plaintiffs, resulting in still more delays. At one point, the plaintiff ’s lawyer decided to sue someone else— the patient’s gastroenterologist. All in all, the case came to trial 12 years after the incident, and seven years after the patient’s death.
“The case was like a Hydra,” Dr. J said. Every six months, they would send her a letter saying that there was no update, or that the case had gone to probate court and now a new person was the plaintiff. Every time there was another letter she would feel panicked. The notice of the suit itself came three weeks after Dr. J’s second child was born. She found this package by the doorstep and thought, “What the hell is this?” It didn’t make sense. The incident was three years earlier, and she saw the patient for three hours; she couldn’t even remember him. “When you get the summons, you have to respond within three weeks; you can’t just ignore it. With two children, that part of the process was very difficult,” she said. The initial allegation at the trial was not making the correct diagnosis. By the first day of the trial, the lawyer wanted to sue for wrongful death. The judge asked for the death certificate, butreceived from the case were a mess. Dr. J had written in the chart that there had been a chest x-ray done on the patient, but they couldn’t find the x-ray, so the plaintiff’s lawyer could argue that no x-ray had been done. After three years, they found the x-ray.
“It’s arbitrary what records can be found on any given day—whoever happens to be the medical records clerk will just send you whatever they can find, but it’s possible that pieces of evidence are lost somewhere,” Dr. J said.
Before and during the trial, there were all of these questions about what happened and what Dr. J thought at the time, from her own lawyer and then, on the stand, from the plaintiff ’s lawyer. “You don’t want to look like a complete jerk saying you don’t remember, but actually it’s better; you really didn’t know.”
Dr. J felt fortunate that the attending on the case was a person with integrity, because sometimes in the courtroom it felt like the plaintiff ’s lawyer was trying to create a “shoot-out between residents and attendings.”
The trial was very difficult, and there was a lot of esoteric medicine brought up, Dr. J recalled. In the end, the jury was somewhat divided, but decided in favor of the doctors; the court ruled that there was no negligence.
“It’s a sad story because the man really was injured,” Dr. J said. “I didn’t think that we could have made the diagnosis, but the allegation that he should have been admitted to the hospital was reasonable. The man was very bitter. He had a very difficult life. In the end, there wasn’t any compensation for him.”
Reflecting on her own growth as a physician, Dr. J said, “Overall, it made me a better person and a better doctor; you learn things about yourself. I don’t think I became more paranoid, but more careful in a sense, even if something seems straightforward.” She became more likely to acknowledge uncertainty in diagnosis.
“Patients appreciate being told that ‘It’s an art, and nothing’s a hundred percent, so please call back if something happens or you’re worried.’ People appreciate hearing your line of reasoning, they’re less likely to sue, and it’s better medicine.”
Dr. J currently works as a primary care physician at a small private practice, focusing mainly on geriatrics and internal medicine. Her name was withheld to protect the parties involved in the case.
For additional resources regarding medical malpractice, the tort system, and disclosure, apology and mediation, visit: http://cir.seiu.org/MedMal
