I was sued and lived to tell the tale

A few years ago, I was sued. Yes indeed, I can now shout it from the rooftops. I know what it feels like to sit in the fire and burn into ashes of self-doubt, regret and emptiness; staring into the soulless, Cyclopean eye of a deposition camera, recounting my sins, defending my pride. I know what it’s like to live with fear, up close and personal. And I know what it feels like to lose.

Does this make me a horrible, terrible doctor, fit to be hung, dried and quartered?

Studies show that that number of claims filed per physician in the United States is 8 times greater than in Canada. Lawsuits enter the judicial system in the US 75% more frequently. A Canadian physician is one-fifth as likely to be sued for malpractice as their American counterparts. It’s a phenomenon physician and patients have come to accept and expect based on America’s underlying ideology of individualism. And this was all okay, in fact coveted during the height of healthcare delivery in the latter part of the twentieth century. But today, with exponential demand on healthcare services accompanied by its attendant sky-rocketing cost, this nation is beginning to wonder why.

Being sued comes with a terrible stigma. As soon as you open the envelope, you can feel your heart drop a thousand fathoms as the black oil slick of doubt seeps into fissures of your mind. Your thoughts steep in terror, your mind leaping to possibility; I’m done for, what’s going to happen, this is the end of my career, how will I survive … what if I lose? You don’t want to know that truth. You don’t want to walk there. And so you go through the motions with visceral pain until it’s all over, and then bow your head, your self-worth and will power ripped from your heart.

You walk into your future alone, determined never to let this happen again. Determine never to get sued again, determined to order as many tests as possible, defend your career, life, self-esteem and always to cower from fear. And so, you change.

Instead of being a good doctor, a great doctor, you become that doctor. You become the one who’s afraid to stand up for herself, the one who now practices “defensive medicine” before she can practice “good medicine.”

It’s almost as if you go into this giving profession with bright shiny eyes, but before you can get started, the vultures are waiting on the sidelines, ready to peck them out. With those odds against you, there’s only one way left, and that’s to acquiesce, punching a clock day-in, day-out until it’s all over, and you can be happy once again.

But is there really only one way out?

In October 2011, Jackson Healthcare released a study called “Costly Defense: Physicians Sound Off on the High Price of Defensive Medicine.” The cost was estimated between $650 and $850 billion dollars. What does defensive medicine do, not only to us financially and emotionally as physicians, but to our patients and their health?

According to a study by Patients for Fair Compensation, $31 billion dollars in 2011 were paid out in malpractice claims, but only 20% of that went to the actual patient. Eighty percent (80%) went to lawyer’s fees.

Numerous studies show that physicians behave differently when threatened with civil liability. The Jackson Healthcare survey estimated there was up to a 35% increase in the number of tests ordered, correlated by an earlier study in 1991 in the New England Journal of Medicine. Not all testing ordered by physicians is benign. It comes with increased risk, stress, worry, anger, fear, and blame and then more testing to C.Y.A. rather than reasonable decision making. In the end, physicians end up doing the very thing they swore they would never do; cause harm.

Using litigation of this magnitude as the foundation of a healthcare system comes with another immeasurable cost. It leads to the breakdown of intimate trust between a doctor and his patient. A healing, nurturing experience has been replaced with adversity, fear, blame and accusation. Whether we want to admit it or not, these conscious or subconscious emotions lead to physical changes; the damaging release of stress hormones such as cortisol and adrenalin. These stress-related hormones then lead to chronic inflammation and end-stage diseases such as hypertension, heart attacks, strokes and diabetes. We shouldn’t wonder why we’re experiencing the level of epidemics of preventable illness we are today when it stands to reason that our internal and external environment deeply affects us as integrated beings.

At this juncture, it’s no longer good enough to hide from the truth.

One only has to look to the ideological fabric which connects the entire social structure of America and the attitudes held by many individuals inside. The collective will in every instance determines a collective outcome. Not one person is absolved from this foregone conclusion because they exist inside this context. If the context is a belief that anger and blame is a necessary component of the delivery of healthcare in America, we will become exactly what we believe in.

The new Affordable Care Act (ACA) has carefully avoided a discussion regarding malpractice lawyers and their role in healthcare reform. America looks with jealous eyes at other developed countries that have healthcare expenditures as a percent of their gross domestic product (GDP) all at 10% or less. America’s healthcare expenditure as a percent of GDP is currently at 18%, scheduled to reach almost 20% by 2021.

Is there a way out?

The answer lies in the aftermath of confronting fear inside that cold, sterile conference room. Who am I? What do I stand for? What am I willing to do for a greater good? Sound too cliché?

America is being brought to its knees and healthcare is its conqueror, at 17% of our gross domestic product and climbing. What responsibility do we each have as citizens of this country, not just as doctors and patients, in making sure that what we end up with is not only just and fair, but that which resonates with unbreakable truths of our existence as human beings?

This is not a crisis of healthcare, but of conscience and faith. America, you have been tried and you have been found wanting. As individuals, we have to now face this singular truth.

I have burned inside the fires of fear. I have confronted my own worst nightmares, and I have lived to tell the tale. My will is now strong. I know who and what I am, and what I stand for.

The real question is, do you?

Natasha Deonarain is the founder of The Health Conscious Movement. She is the author of the upcoming book, The 7 Principles of Health and can be reached on Twitter @HealthMovement.

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  • gerryoginski

    Natasha,
    It sounds like you had a lot of demons to work out. I sympathize with your gut visceral reactions. However, I would like to hear about the dispute that the patient claimed he or she suffered injuries from. I would like to learn what you believe you did right compared to what the patient believed was done wrong.

    I would’ve liked to have learned what your feelings were toward the patient if you truly believed that the patient was correct. I would have liked to know about whether you agreed and consented to try and negotiate the case to avoid having to go to trial and take a jury verdict.

    It would have been interesting and educational for your readers to understand the decision-making process as you went through the litigation process as well as the months and days leading up to your trial.

    I’m always fascinated to learn why the physician fails to take into account the injured patient and their concerns, feelings and injuries following such a sentinel incident that prompts him to bring a lawsuit.

    Instead, the lawyers are vilified as being, as you describe, vultures, instead of being a trusted advisor who seeks to provide guidance to an injured victim who does not know where to turn next.

    It would be interesting to read the supplemental follow-up about the topics I mentioned above.

    • DavidBehar

      Mr. Oginsky. You sound like you are a self serving lawyer. Every medical error is the fault of the lawyer profession. Instead of being investigated and resulting in a system change to prevent it, it has to be covered up. This cover up is because your profession will use every finding in discovery in ruinous litigation. So instead of steady improvement, we have cover up, and stagnation in safety measures. Clinical entities have a duty to survive, when under relentless attack by predators using mostly phony charges of negligence. .

      Because doctors are seen favorably, they should lead a movement to destroy your profession, a plague on our civilization. The lawyer is the cause of every social pathology, from crime to the destruction of the family. The defense of our way of life should begin with a total boycott of all lawyer enemies by all service and product provider. It should end with the mass arrest of the hierarchy, an hour’s fair trial, and their summary execution on the spot, right there in the basement of the court. There would be no charges of collateral corruption. The sole evidence would be their legal utterances in their out of control insurrection against the constitution.

      To deter.

      • gerryoginski

        Now tell us how you really feel. Don’t hold back now. I notice once again, that you don’t address the possibility that a patient could in fact suffer injury because of a physician’s carelessness.
        There is nothing in your missive about patient’s rights and their legal right to seek compensation.
        Get to the root cause and not the sequelae.

        Gerry Oginski

        • DavidBehar

          I did say that all medical error is the direct fault of the lawyer profession.

          The overwhelming majority of your claims have no merit. They are like Mafia extortion. You intimidate with false claims, in hopes of getting a settlement in 80% of claims.

          The certificate of merit prior to the filing of a lawsuit is a bad joke. It does not prevent any frivolous claims for anyone with $500 to pay a clinical whore to say whatever one wants. It now shields the lawyer from a countersuit by the doctor. The lawyer now claims, he relied on an expert.

          Here is a test of your hypocrisy. The lawyer has many duties to the adverse third party. These are enumerated in statutes and cases covering the Rules of Conduct, of Civil Procedure, and of Evidence, making the filing of a frivolous claim an intentional tort, deserving exemplary damages. Do you or do you not support a law allowing a suit for legal malpractice filed by the innocent defendant against the plaintiff lawyer? Until you do, you are just a lying pirate, deserving a pirate’s fate.

          • gerryoginski

            Last I checked, the attorney is not the one in the treatment room with the doctor when the patient is receiving treatment. Could you explain again how the attorney is responsible for any medical errors that occur?
            Again, get to the root cause of the problem. Eliminate the root cause-improper medical care, and the attorney has nowhere to go and no case to represent.
            Sounds simple enough…but start at the root cause and not the sequelae and eliminate the excuses. Take responsibility for your actions and move on.

          • DavidBehar

            Every health entity has a duty to survive. All errors could be eliminated by investigating each of the dozen factors clustering to cause it. If that were done and changes put into the methods and systems, errors would be cut to very rare, as they have been in the airline industry. However, every word of an investigation will be used in court to defund and destroy the health entity, and to enrich the lawyers.

            Why is negligence litigation good for the doctor and not for the lawyer? Why is that true when laws enumerate the duties of the plaintiff lawyer to the adverse third party (the doctor defendant), and all deviations from standards by the lawyer are negligence per se? The answer is, you have the system rigged by your control of the three branches of government, and have immunized yourself.

            Here is what you do not understand. Torts are an alternative to violent revenge. If that proposition is true, then its contra-positive, in formal logic, must be true. Immunity justifies violent revenge against the plaintiff lawyer and all other lawyers dealing themselves legal immunity, including the judges.

          • SBornfeld

            How do you account for the apparently far higher incidence of medmal in the U.S. compared to Canada?

          • SBornfeld

            It’s pretty expensive to file a frivolous case. It’s a given that anyone can sue anyone at any time. But AFAIK costs attendant to bringing a lawsuit and the fact that the vast majority are taken on a contingent basis mean that many cases that should be brought probably are not.
            Are there “fishing expeditions”? Sure. I’ve seen them. A lot of them have nothing to do with treatment. And to their credit, most attorneys I believe won’t take a baseless claim.

          • DavidBehar

            Take a plaintiff hell hole like Philadelphia. In two thirds of medmal cases, the downtown juries agree with the doctor. In less crazy places, the rate is closer to 100%. So juries disagree that the majority of medmal case have any merit.

          • SBornfeld

            That’s very surprising to hear. I’d think most frivolous cases would be filtered out before trial. Could you post the source(s) of your information?

          • DavidBehar
          • SBornfeld

            I can’t seem to access the “good stuff”–I get “forbidden”. They must know about me.

    • SBornfeld

      Do we know that this went to court?

  • LECDO

    When will the patients of the United States wake up? Yes, patients. This ever present threat and fear of being sued, the toll on careers and personal lives of being sued (or being named) is worse than the most aggressive cancer known. Greedy, vulture lawyers who pride themselves in such practices “80% vs 20%” and government who protects them are equivalent to carcinogens. Where is the oversight committee, auditing group examining this fraud and abuse? Where is the Database to identify these lawyers? Where are the public records to show they have lost such “malpractice” cases? Why aren’t they being publicly sanctioned?
    Our extortionist lobbying groups, our physician “voices” have done next to nothing to help the situation.
    We, physicians, as a group have been unable to cure or even effectively begun to treat this cancer. Instead the greedy few “expert witnesses” and the like continue to erode a once noble profession. Such erosion of our core allows vultures an easy prey.
    Just as in the real cancer, this needs to be attacked from a multidisciplinary approach.
    Patients need to wake up and join us in defending healthcare (what little is left). “20% GDP”, increasing tax dollars and decreasing entitlements will continue unless patients speak out and help us treat this curable cancer and scourge on our profession and country.

    • Suzi Q 38

      So what has changed?
      You heard less of this in years past because of social norms.
      People held the doctor in such high regard that doing so was unthinkable.
      Lawyers were not so plentiful in decades past.
      Now you can fire all of the lawyers in the state of California and still have enough to serve the people with that year’s graduating class at the various state’s law schools.
      You didn’t see commercials on television asking you to hire such and such law firm because they will get you a huge settlement and “fight for you.”
      Doctors also had their own practices, did not work for HMO’s as much, and spent more time not only being more thoughtful and careful when treating their patients, but acted as if they cared.
      They could afford to act that way, because they had more time to do so. Now it is getting increasingly difficult to build a good relationship with having to serve so many in a day/week/month/year.

      • Elegia More

        Thanks for your honest and thoughtful post. Clearly spending less time with patients will lead to more malpractice suits and the endless cycle continues. Everybody looses except Medicare and the insurance companies whose price fixing lead to this mess.

  • Observer

    We probably won’t see the US-Canada gap close until the US adopts universal healthcare. If the only way to get treatment for the consequences of a potential mistake is to sue, it leaves patients with little choice.

  • LastoftheZucchiniFlowers

    As I approach retirement I recall MANY years ago during my training in the Northeast, I was told by a certain professor to diagnose/treat/document/prescribe as though a miniature plaintiff’s attorney was sitting on my shoulder. At the time it seemed absurd and implied that my every decision would be altered or somehow burdened by the thought. That same professor also asked us in our collective futures to make every effort to see a loved one/friend in the face of every patient we encountered in our careers. He said that if we succeeded in this effort the phantom litigator would not weigh as heavy. Guess what? The professor was right. But the exercise grows more difficult for today’s doctors who must see ever-increasing numbers of patients in the current business model and it becomes less likely that they’ll continue to see them ALL as though they were their own nearest and dearest ones. So I truly feel for those who have been to hell and back via a lawsuit. When there is death/disability/dismemberment/etc. of a patient it is always the blackest outcome but…..this DOES COME WITH THE JOB. We can never lose sight of this because when the dung DOES hit the fan we’ll get stomped on with the reminder! As physicians we are uniquely positioned in society so that when someone circles and then goes down the drain on our watch/under our auspices – we should expect the worst even in the ‘best’ circumstances. It is essential human nature during and after duress. Your H&P, complete notes, follow up and documentation of all communications ALONG WITH PEs and diagnostic testing along the way can make or break you and it’s very tough (but not impossible!) for the plaintiff to find fault when someone has been a consummate professional who has followed best practice guidelines. Take home? Your patient’s medical record will be your best friend OR your worst enemy in court.

  • margo

    it really depends on what state you live in as to whether you can get sued. in caifornia there is a $250000 limit for pain and suffering. So many vultures AKA lawyers don’t take most cases. wonder what state Dr. Deonardin practices? if it was califonia there may not been a lawsuit..

  • http://twitter.com/FerkhamPasha Ferkham pasha

    Interesting article

  • Suzi Q 38

    Sorry this happened to you, but so what.
    I heard that a doctor should expect to be sued at least once in their career.
    It doesn’t feel good, but it comes with the territory.
    Your work is something that is so personal and so important to the patient and family. If mistakes are made, our health declines or a person may be dead.

    I am not a doctor, but I have been sued before. I know the concern and the panic that you feel when you go to the mailbox, expecting the usual bills and cards, and receive a notice or summons to court instead.
    My stepmother sued us for my FIL’s estate, and he wasn’t dead yet at the time. He had had 3 strokes and was in the hospital. It became a competency case, complete with physician expert witnesses.

    The depositions are special. They are designed to catch you in lies or half truths.
    It doesn’t sound like you are practicing in the state of California.

    In California, the doctors are luckier because the patients have to live with the doctor’s mistakes. It is hard to sue a doctor and to actually win a judgment of any substantial amount. You have to PROVE negligence.
    In other words, the doctor has to be “asleep” or obviously ” negligent.”

    By the time you have paid the lawyer, court reporter, expert witnesses (physicians) etc, you can easily spend $30-$50K on a case without a problem.
    Lawyers in California will not take your case on a contingency unless it is an easy one for the patient. It is just too expensive to lose.

    In the end, the lawyers get 70% or more, and the patient gets 30% or less of a good case. The lawyers do not tell their clients this.

    This is why, once the lawyers get involved, they forbid each party to speak to one another. Of course part of the concern is strategy or too much information getting to each side, but the real reason is that if the parties chose to meet and work things out without the lawyers, the case would settle way too soon and the legal team would have less billable hours to turn in each week.

    I think that when a patient is unhappy, the doctor should be empathetic without admitting guilt and find out why.
    The hospital should offer a patient advocate that is a good listener and very helpful to ameliorate the situation.

    If the doctor is arrogant, condescending, and rude, this is heading to the courthouse.

  • DavidBehar

    Doctors should stop whining and start fighting. They are among the most privileged and immunized of defendants. If a group grosses $5 million and has 4 lawsuits, it is all upset. If a welding business grosses $5 million, it will have 400 lawsuits at any one time. Walmart has 10,000 lawsuits Every Day.

    Torts have never improved safety. Only technology has. So the entire lawyer practice of torts is a scam, a variant of armed robbery.

    All innocent defendants should understand their defense lawyer is a traitor, owing his job to the plaintiff lawyer, and not to the client. Therefore, it is advisable to hire privately, an expert in lawyer malpractice to terrorize this traitor. The defense traitor will never attack the other side, never seek a rapid dismissal, since he is paid very little by insurance, needs the future lawsuits, to get to a trial to generate billable hours. The doctor will experience what HMO patients do from the treatment of this defense traitor.

    Every adverse statement of the plaintiff lawyer should be reported to the Disciplinary Counsel, the licensing authority of lawyers, one a month, so that the plaintiff lawyer is under investigation for years.

    The defendant should review every utterance by the plaintiff expert, since the defense lawyer does not know any medicine. One is looking for the assertion of a false fact. Opinion is immunized by the Free Speech Clause, and by the litigation privilege. False facts, such as a false claim of qualification, of having reviewed a record, when they haven’t, should result in a mistrial, a demand for all legal costs to be paid by the plaintiff expert, and a referral to the district attorney for criminal prosecution of perjury.

    Resistance to this criminal enterprise is a duty of the doctor, as well as all measures possible to counterattack the lawyer criminal. To deter.

    Lawyers learn from experience. If a line of litigation is made extremely painful, it will end, and no other lawyer predator will come around anymore. Seek the personal destruction of the plaintiff, the plaintiff lawyer, and the plaintiff expert. The best opportunities are inside the trial. Take advantage of them, and use the malpractice lawyer to force the defense traitor to fulfill his duty to the defendant.

    • gerryoginski

      You say torts have never improved safety. That’s incorrect. It certainly has. It has removed dangerous products and medications from the public. You might want to research your statements a little more next time.

      • DavidBehar

        Torts have certainly removed many useful products from the market, and disrupted the care of millions of successfully treated patients with good outcomes from the banned products. There has never been a single human life or injury demonstrably prevented by torts litigation. Not one, in all of human history. Only technological advances have prevented injury and saved lives.

        Torts serve as an alternative to violent revenge. As such, the self-dealt immunities of judges and litigators fully justifies a campaign of violence against them, until they allow themselves to be sued for the damage resulting from their carelessness. They need to carry liability insurance for their victims.

        • gerryoginski

          There are lots of articles and studies that says you’re wrong that there has never been a single life or injury prevented by tort litigation. It helps to know the stats first before making unfounded generalizations.

          • DavidBehar

            Cite one, and I will show you where the lawyer, and left wing, pro-big government academic propaganda makes it invalid.

          • DavidBehar

            Try addressing the dozens of duties that you have to the adverse third party in statutes, Rules of Conduct, of Evidence, and of Civil Procedure, case law. With so many duties enumerated in the law, how do you still have no duty to the adverse third party? It is nearly impossible to sue an opposing lawyer successfully. I strongly urge every innocent doctor to do so anyway. If there is no legal recourse, violence has justification in formal logic. Direct action groups who care about our nation should give 50 lashes to judges and lawyers. Tie them to the trees outside the court house. To deter.

      • DavidBehar

        Mr. Oginski: I sue lawyers. Lost every time, despite good facts and law.

        They get very upset, even more than doctors. For years later, other lawyers say to me, “I can’t believe you sued a lawyer.” Now I advocate the lashing and then the kneecapping of lawyers, and of judges. To deter. There is no legal recourse, I can report. I stand by the mass arrest of the lawyer hierarchy, around 15, 000 traitors, brief trials where the sole evidence would be their legal utterances, and their summary executions in the court basement for their insurrection against the constitution.

        I advocate the expansion of the death penalty. I do not know if I would have the physical courage to dispatch a serial killer up close and personal, as I advocate others’ doing. However, I would have no hesitation personally dispatching an appellate judge, as a patriotic duty, to save our nation from these tyrannical inquisitors. The necessity would overcome all physical hesitation.

  • http://www.7POH.com/ Natasha Deonarain, MD, MBA

    Thank you all for your comments. These issues are
    particularly difficult for all us of as physicians, especially inside the
    paradigm we operate that’s based on greed and profit, and stimulates some controversy. I think, when we are willing to speak our truth – our fears, joy,anger and frustration, and also to find solutions based on new ways of thinking – this is when we will find the solution to our failing country!

    http://www.youtube.com/watch?feature=player_embedded&v=jRJoauMzNgg

    http://www.youtube.com/watch?feature=player_detailpage&v=M16hCpmDKgo

    • Elegia More

      Once again, your only concern is for yourself, not your patients. As a patient that had two heart attacks due to a serial malpracticing doctor assigned to me in a hospital who would not read my medical records, I find your article an example of the new mindset of physicians who are “providers” not “physicians.” It’s all about the money. Dr. Deonarain, you really and truly can’t read your article and the above posts and see how “un-doctor-ish” you are? It’s amusing to me that you also add a MBA to your MD credentials, as if you aren’t important enough already. We chronically ill are dead and buried.

      • http://www.7POH.com/ Natasha Deonarain, MD, MBA

        Thank you Elegia for your feedback. I would encourage you to re-read the statistics again in the article – analysis from the NEJM which compare countries and show how grossly out of proportion America is in its attitude to litigation. Here’s an interesting personal insight. My brother recently visited from New Zealand. His traveling malpractice states that if someone had a heart attack, say, on the airplane or anywhere where he was travelling, he could provide care as an emergency room doctor and his New Zealand malpractice would cover him…..EXCEPT if that person was an American!!! Yes, it actually stated that in his policy – they would NOT cover him for any Good Samaritan act in his capacity as a doctor if that person suffering was an American. This is what the world thinks of America. And part of our problem, is specifically our litigious attitude to each other, both within and outside the profession. I am sorry you feel that this message is all about myself. I believe the way America is headed for the future, continuing with the same accusatory, blame and fragmented attitudes as displayed by illustrious leaders, will only serve to ensure it’s demise in the very near future. And it starts in healthcare….Your government has done this to the chronically ill, and yes, there will be an ugly transition for those who have been promised care and now are getting more than the rug pulled from under their feet. My message, however, is about empowering yourself and not living with suffering, blame and anger no matter what your disease challenges may be….

      • http://www.7POH.com/ Natasha Deonarain, MD, MBA

        Please see my comment below first Elegia, but I was suddenly thinking about how you may have interpreted what I said as being more concerned with myself than others! It turns out that the original title of this submission was “How you can make a difference in healthcare reform.” After I submit, the editors often reserve the right to change parts of the original…hence the title you now see!! I wonder, would that make a difference? Perhaps not, but my original intent wasn’t self motivated. I use myself as a personal model for others to understand what our issues are in America, and hopefully seek to change themselves. Hope this rather random thought helps??

      • DavidBehar

        Stop scapegoating your doctor, Madam. Start working on your risk factors. Entitled, scapegoating patients need to be crushed, along with their horrible families. To deter. Every penny you bleed from the system comes from the care of other more deserving, but quieter patients. Doctors have a duty to protect their other patients from such horrible people.

  • http://www.7POH.com/ Natasha Deonarain, MD, MBA

    Thank you all for your comments. These issues are
    particularly difficult for all us of as physicians, especially inside the
    paradigm we operate that’s based on greed and profit, and stimulates some controversy. I use myself as an example to show that doctors are humans, and we need to understand this first before we continue with a system of this magnitude that is crushing its providers.

    When we are willing to speak our truth – our fears, joy,
    anger and frustration, and also to find solutions based on new ways of thinking – this is when we will find the solution to our failing country! I challenge you, doctors, lawyers and patients – to become more conscious of what system we have created, and how we need to change in order to fix it!

    http://www.youtube.com/watch?feature=player_detailpage&v=M16hCpmDKgo

    http://www.youtube.com/watch?feature=player_detailpage&v=jRJoauMzNgg

  • http://www.facebook.com/marilyn.shively.5 Marilyn Shively

    I think I bring a different perspective to this discussion. I was in health care risk management for 30 years. I worked closely with defense attorneys to defend against litigation, and I worked with physicians and nurses at the hospital level to prevent serious incidents from recurring. I now work for a plaintiff attorney who specializes in Personal Injury, including medical malpractice. Since the early 1990′s Michgan has tort reform with limits on awards. It has become very dificult to bring a lawsuit against a physician or hospital and an attorney has to expend a great deal of money before the suit is ever filed. What I learned is this: most physicians really are competent and caring and many lawsuits are without merit. However, there is a core of physicians I call “bad actors” who over the years continue to commit malpractice and are allowed to continue to practice. Litigation does not stop these physicians, their insurance just settles the case, sometimes takes it to trial and these poor practitioners go on and hurt others. Hospitals continue to keep these bad actors on their staff. There are some horrific cases out there reflecting horrible injury to a patient, and incompetence on the part of the physician(s), and yet the physicians involved remain arrogant and unable to admit their mistakes. I don’t see that changing anytime soon.

    • SBornfeld

      Catharsis is great. I would like to hear the basis for the lawsuit though.
      I think the system stinks, but it’s not likely to change, as the 3 parties involved (doctors, patients, attorneys) all get something.
      That isn’t necessarily the best outcome, but it’s the one we have, because–at least for all 3 “actors”, there is money involved.

  • Payne Hertz

    I’m glad you lived to tell the tale. I wonder if the victim did. Somehow she doesn’t fit into the picture here. In the grand tradition of doctors writing about malpractice, it is invariably characterized as something bad that happens to doctors. The victims barely warrant a mention, except to denounce them as rent seekers.

    The average doctor can expect to be sued once in a career, with the average cost of litigation being $20,000, most of it borne by the insurance company. For many patients, malpractice is an end of a lifetime event, with the survivors often being stuck having to pay for the very procedures that destroyed their lives or those of loved ones. Medical expenses as the result of iatrogenic injury can be in the millions.

    You blame “defensive medicine” on fears of malpractice, but what kind of doctor would subject his patients to the risks of complications, injury and even death from unnecessary tests and procedures for no other reason to ease his paranoia about being sued once in his career? Not to mention the additional expenses. If what you say is true, then doctors are committing moral malpractice to defend themselves against legal malpractice. This strikes me as the behavior of sociopaths, not professionals.

    So-called ‘defensive medicine” is fraud. It is a violation of Medicare rules to order tests and procedures for personal reasons, convenience or to line one’s own pockets. Perhaps it is time we start investigating this fraud and removing some of these doctors from the profession.

    It is a measure of just how solipsistic this debate has become that doctors can only discuss this issue from one side, as if completely trapped in their own circular feedback loop. They have no idea it seems of what the victims of medical error go through, nor do they care.

    They are champions of the right-wing dogma of “personal responsibility,” but they blame every ethical lapse on others as if they are automatons incapable of independent action. They are oblivious to how complaining about somehow being forced to commit fraud and endanger their patients because of their paranoia and selfishness comes across to sane and ethical people.

  • StephenModesto

    Thank you Natasha for the sharing of your story. Odd…..I read all the comments your post elicited. People even bicker on this site. Suddenly your story is not about you, but what you represent as issues within their own socio/political belief structures. What difference does it really make why you were sued or `why’you should have `told’ it in your post? You provided much background info concerning the secondary issue of grief/anger/recriminations. Personally, I have always wondered how many MDs involved with `Medecins Sans Frontieres’ are litigated against by the clients/pts they serve?

  • Hans Ersgaard,Denmark

    a mentor once told me that if I did not have a litigationcase in my career I would either be very lucky or very lazy. However I have, as far as I know not killed any patient however I have read several obtuarities with great pleasure! Still I have tried to have a conflict with the local Medical Board, and expirienced that any doubt of their decisions was neglected, giving me no peace in mind. However my wife told me that we could have other things in life being more important, so I gave up and got into retirement with an old car an old wife and grandchildren= very addictive. I do think that it is not possible to avoid cases of bad outcome for some patients, just as we have accepted casulties in the traffic and gun shooting of innocent people both in US as well as in Scandinavia. We can try to reduce the cases, and realize that we cannot avoid them totally. We can still lean from the negative results and comfort the people who are unfortunate to have a negative result of treatment,support the staff involved, but be sued for malpractise really only make the lawyer FAT. In this case punishment does not solve any problems

    • DavidBehar

      This is correct. There has never been an improvement in safety from a medical malpractice case, only greater waste in defensive medicine.

  • SBornfeld

    Thanks for the link. Of course, this is a legal advocacy group, their conclusions are as expected as would be those of the medical societies.
    It also appears to cherry pick. It seems to imply that all injury is a priori due to negligence, which is very difficult to ascertain.
    Furthermore, it supports my conclusion that the major actors in this system (in this case the legal profession) are not motivated to improve it and have a financial interest in its preservation
    Don’t forget that the medical profession has an interest in the system too; they are (after all) insured. Most cases of negligence (whether litigated or not) are not acted upon by the state medical boards.
    It may well be that a relatively low number of practicing physicians are responsible for a disproportionate number of negligent acts. It is nevertheless also true that many of the best doctors–those who treat high-risk patients who are very ill–are often the ones who get sued the most often–because these physicians often report bad results. Many of these have nothing to do with negligence

    • Payne Hertz

      I don’t see where they cherry-picked their data. They are pointing to injuries in successful malpractice suits, where negligence has been determined or no malpractice exists. If anything medical apologists do the opposite, point to the low-rate of successful malpractice suits as evidence that most cases are “frivolous” when in reality most such suits involve actual injuries and in many cases negligence has been established as well. There are people who have lost wrong-site surgery and even wrong-site amputation cases, where one would think the verdict is obvious.

      Just because a doctor is considered “the best” does not mean he is immune to committing malpractice or medical errors. Sometimes negligence is the result of “the best” doctors having too much power to where their colleagues and nurses are afraid to question them when they are wrong or eschewing protocol out of arrogance.

      Doctors, and not lawyers, are the major players in this system, as most injured patients never see a lawyer. In many ways, there is a perverse incentive for doctors to do nothing about malpractice except for lobbying to rob the victims of their constitutional right to redress in the courts. Injured patients generate more revenue from the medical costs of treating their injuries than are laid-out in malpractice expenses. Most of the money from successful malpractice suits also goes right back into the system in the form of medical expenses to treat the injuries. The usual result of a medical injury is not a successful malpractice suit, but the patient being forced to pay the bill.

      The risk of being sued for screwing up is low, the rewards for unnecessary tests and procedures and error-prone assembly-line medicine are high. Programs and practices to reduce medical errors are often costly in terms of money and time (which is also money). Since money trumps morality in the American medical system, the lack of effective action to reduce medical errors is not surprising.

      • SBornfeld

        Well, you see what you want to see. The legal profession parses the data one way, the medical another. You pick your favorite.
        I don’t have a dog in this fight–or rather, I have 3. I mostly agree with you about most negligence doesn’t get litigated. That doesn’t mean the system is clean. The cases that get litigated are not mostly the good cases; they’re the ones with the big payday.
        You may think obstetricians pay high malpractice rates because they are a bunch of shoemakers, and I have no cause to disabuse you of that delusion. They mostly pay high rates because when a baby is born ill, someone must be blamed. Sometimes the suit is warranted; sometimes not. Either way we pay.
        My family and I have been on the wrong end of medical negligence. It’s not nice, and I hear where you’re coming from.
        I also have good friends who happen to be physicians, don’t get sued, and pay for it anyway.
        And I also agree that money trumps effective solutions. Bad docs are covered, and continue to practice. And attorneys get paid. The people who get screwed are the same people who always get screwed.

  • http://www.facebook.com/Cheryl.A.Handy Cheryl Handy

    What you went through was undoubtedly stressful. But somewhere in between the physicians who practice defensive medicine and vulture plaintiffs’ attorneys are the caregivers and patients. As a patient advocate and caregiver, I have tried in vain to work with physicians, surgeons, oncologists.

    There are doctors who simply will not work with patients on healthcare issues. There are doctors who fail to follow-up with elderly after surgeries. There are doctors who get tired of dealing with the elderly (who heal slowly). There are patients who die because many doctors expect patients to march in lock-step with the medical system. And, if the patient or care-giver doesn’t march, they are ignored. Questions and concerns to the physician be damned.

    My dad died from complications of osteomyelitis because Duke Medical doctors (orthopedics, plastics, infectious disease) refused to work together. Then nine months later, I contracted osteomyelitis (a disease that is neither contagious nor genetic). It took me almost two years to find doctors who could treat my osteomyelitis.

    During those nearly 2 years, doctors were either inept or lied by saying I did not have osteomyelitis. They stated that and refused to treat me despite the fact that I had a hole in my leg probing to the tibia bone and flat x-rays demonstrated OM.

    I refuse to believe that UNC Orthopedics was inept when they erroneously said I did not have OM. The orthopedic surgeon who treated the OM about a month later told me “anyone who told you that you didn’t have OM lied to you.”

    Why on Earth would a doctor lie to me? Why on Earth would a doctor leave me to die? The statement by UNC Orthopedics that I did not have OM wasn’t really medical malpractice because it wasn’t an issue of clinical judgment. What UNC Orthopedics did was cruel and a lie.

    I suspect that UNC Orthopedics and Duke Orthopedics (where dad died) are colleagues. Perhaps I was black-balled as a patient because I was dad’s advocate before he died while a patient at Duke Medical.

    Who protects innocent, dying patients from lying physicians?

  • http://www.7POH.com/ Natasha Deonarain, MD, MBA

    Certainly a hot topic! Jeffrey Kreiberg on this site addresses a culture of fear in our nation, and its a great thing that more doctors are beginning to put the biggest picture together, how the system is integrated to perpetuate fear and blame – - but I disagree that change has to come from the top. Change has to come with each individual, and the time is right now. First, its recognizing what we are as a system. If we continue to blame we end up with exactly what we have, a system that perpetuates blame and victimization. So there’s really no complaining is there, since we’ve created what we wanted? Part 1 and 2 are up, part 3 will address what we’re talking about here..but you can check it out at http://www.slideshare.net/NatashaDeonarainMDMB/is-your-doctor-keeping-you-sick-part-2

  • Primos Kenah

    Many patients are now abusing the fact that they can sue physicians. These are people who took an oath to be committed to their service and dedicate their life to help people> though all physicians cases are not the same, it will be good for this kind of things to be critically examine and such rights be limited following the law.

  • http://twitter.com/dalecoymd Dale Coy

    Being sued has the same effect on a person as a serious illness. You would enjoy a related social commentary, “Morton’s Fork” a novel about how one doctor reacts.

  • http://www.7POH.com/ Natasha Deonarain, MD, MBA

    I like to take the biggest picture view possible on most things I do nowadays. So, I finally got Part 3 done of the nail-biting slideshare series “Is your doctor keeping you sick?” This one addresses how our malpractice crisis (yes, crisis) is affecting each and every one of us from the integrated perspective. While done in simple silly pictures, it is geared for the general populace to understand this complex issue; that everything and everyone is interconnected and interdependent. What one person thinks, does and believes, affects the whole. When a collective nation like America espouses litigation and individual right to this heightened level, we cannot help but be affected in many other ways which are not just black and white, as we like to believe. So, helping to correct a system like this will require us thinking about the problem in a very different way. http://www.slideshare.net/NatashaDeonarainMDMB/is-your-doctor-keeping-your-sick-part-3

    I know, I know…you can’t wait until Part 4 right? ;)

  • Berysin Salomon

    Very interesting topic and I am so sorry about what is happening to you (The USA health professionals). What is happening to the medical code of ethics. There is no more trust among the patient and physicians. No body believes or trust any one any more, and even minor things that can be forgiven but so long as they can get some money out of it then it is ok.

    I am so glad that I am not practicing in the USA, even so I do all my best to take care of my patient and not to cloud my brain with the thinking that I will be sued anytime. In my Country patients and health workers work together for the betterment of the patients and people know that the physicians are not god.