Malpractice lawsuits aren’t just about money

I saw the caller-ID and immediately picked up the phone; it was an old friend from college.

“I want to sue a doctor and I want to sue the hospital,” said Karen.

Sadly, I hear those words all too often.  I’m a newly-minted lawyer — after a 35-year career as a publisher — working at one of New York’s top medical malpractice plaintiff’s firms.  What made this particular call so unusual, was that Karen is a top doctor.

Karen’s elderly mother had been rushed to a hospital near her Florida assisted living facility.  By the time Karen had arrived from her home outside Washington, D.C., mom had been examined, diagnosed, admitted and treated.  But she was doing poorly, and Karen quickly sensed that the medication was wrong.

Karen is board-certified in three specialties, but not licensed to practice in Florida.  So she tracked down the doctor who had prescribed the medication and asked him to take a look at mom, and perhaps adjust the meds.  He refused to come in.  It was a three-day holiday weekend and his response was, “I need a vacation too.”

Karen found a different doctor who examined mom and changed the meds; and mom is doing fine.  But understandably furious, Karen’s next call was to me.  She wasn’t looking for cash to compensate her mother’s pain and suffering; as a doctor she wanted the system fixed.  And perhaps a lawsuit would send a strong-enough message.  We quickly agreed that a lawsuit was the wrong way to proceed.  Instead, she might consider filing a formal complaint with the Joint Commission on accreditation, the national organization that monitors and promotes hospital quality and safety.

Unfortunately, a formal complaint by even as formidable a figure as Karen will probably have little impact.  The medical community’s resistance to reform is notoriously passionate. The Joint Commission’s 2013 Annual Report points out that only 33% of the 3,300 Joint Commission-accredited hospitals have achieved the organization’s “top performer” rating.  (Moreover, there are another 2,400 hospitals in the U.S. that are not even accredited by the Joint Commission.)  And only 182 hospitals have managed to make the list for three years in a row.

Sadly, for all the very good work they do, hospitals are dangerous places.  The National Institute of Medicine has estimated that as many as 98,000 people die each year — and another 300,000 injured — in U.S. hospitals annually due to avoidable errors.

In 2004, Dr. Donald Berwick, then president of the Institute for Healthcare Improvement launched the “100,000 Lives Campaign.” Hospitals were asked to commit to six evidence-based interventions that would save lives, and putting in place metrics that would accurately measure just how many people were actually touched by reforms.  After 18 months, with fewer than 2300 hospitals participating and implementing at least one of the changes, the organizer declared victory and estimated that 122,300 lives would be saved over the next 18 months. When, in 2006, Dr. Berwick then launched the “5 Million Lives” campaign, hospitals were more reticent to join the effort. Only 2000 hospitals agreed to implement all 12 safety interventions.

Hospitals aren’t the only aspect of the medical community resistant to change; professional associations can be even more recalcitrant.  The American Congress of Obstetrics and Gynecologists  (ACOG) has refused to formally adopt a series of 21 changes tested and implemented by New York Presbyterian Hospital (NYPH) between 2002 and 2009. The NYPH changes reduced the incident of sentinel events — unanticipated events that result in death or serious injury to patients — from 1.04 per 1000 deliveries in 2000 to zero in 2008 and 2009. To put that into perspective, in 2003 the hospital and its doctors paid victims of sentinel events more than $50 million in compensation.  In 2009, they paid $250,000 — a remnant of a malpractice case that predated the reforms.  Yet ACOG refuses to recommend these reforms on the grounds that they may infringe on individual doctor or hospital prerogatives.

One reason Karen called me was that she knew my law firm had represented Libby Zion’s family in the notorious case against New York Hospital 20 years ago.  In that malpractice and wrongful death suit, a jury concluded that 18-year-old Libby had died after a sleep-deprived, unsupervised intern had improperly prescribed medication that killed the patient.  The jury did not, however, impose punitive penalties against the hospital.  Had they, it might not have taken until 2011 for the medical school community to fully implement restrictions on work hours and improvements in supervision — changes that are known as the Libby Zion reforms.

The negative publicity that often accompanies high-profile malpractice suits can have a galvanizing effect on prodding reform. The best example is probably the anesthesiology community.  In 1982, after a spate of bad publicity triggered by large malpractice verdicts, the American Society of Anesthesiologists conducted a comprehensive assessment of what had been injuring patients. They then revamped their procedures, established mandatory monitoring, improved training, limited the number of hours anesthesiologists could work without rest, redesigned machines and outfitted others with safety devices.  Within 10 years, the mortality rate from anesthesia dropped from 1 in 6000 administrations to 1 in 200,000.  And anesthesiologists’ malpractice insurance rates fell to among the lowest of any specialty.

Make no mistake: Money is the principal goal of most malpractice suits.  It is the only remedy our system of civil justice knows how to provide.  And I make no apologies for wanting to get needed therapies for a child or a full-time health aide to relieve an exhausted caregiver’s burden.  But sometimes, lawsuits do much more: They provide essential light on a systemic problem and impetus to overcome institutional inertia.

Steve Cohen is an attorney, Kramer, Dillof, Livingston & Moore, New York City, NY.

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  • Patient Kit

    I agree that victims of true malpractice need and deserve a way to seek compensation, justice and, hopefully, minimizing the chance of the same thing happening to future patients. The problem is the flood of frivolous lawsuits on fishing expeditions for nothing more than some easy money. The Libby Zion case is a good example of a case that resulted in meaningful reform in medicine.

    But reform is equally needed in the law and in the public mindset that treats lawsuits as akin to lotteries and casinos. But the chips people play with in court are doctors’ lives and careers — for a shot at some easy money.

    How do you suggest that we protect the true victims of real malpractice on the patient side while, at the same time, protecting doctors from being victimized by the constant threat of frivolous malpractice suits?

    Clearly, it starts with lawyers refusing to take those frivolous cases. But, unless all lawyers are going to stop chasing
    ambulances and stop running ads that encourage frivolous
    lawsuits, meaningful reform in the actual law will be necessary.

    • JR

      Can you give any quantitative meaning to “the flood of frivolous lawsuits”.

      • http://onhealthtech.blogspot.com Margalit Gur-Arie
        • JR

          So we can see how hard it is to have enough evidence to bring a suit to trial… doesn’t mean they are “frivolous”. I know someone who works in social services… those numbers seem similiar to the rate of sexual assault cases against children that have enough “proof” to go to trial. It doesn’t mean the rest of the cases aren’t valid cases.

      • Patient Kit

        No stats from me on this but thanks to Margalit below for some. See my response to Suzi above for why I was under the impression that a lot of frivolous malpractice suits are brought. Maybe I’m wrong about that though. I don’t know. Do you believe that most malpractice suits are warranted?

        • JR

          Have you heard about the case of Rinat Dray? If what is reported is true, I don’t think there should be a lawsuit at all… I think the doctor should be going to jail for assault. Why isn’t there a criminal case and a criminal investigation going on?

          That’s my problem with the complaints about lawsuits. It seems there is very little being done by medical groups to police their own, and very little being done by the authorities. What else do we have?

          • doc99
          • JR

            “the outcome – at least to judge by the health of mother and baby – wasn’t bad at all”.

            Whoever wrote this article isn’t familiar with the case. If the health of the mother and baby had been fine, there would be no lawsuit. The mother was injured during the surgery.

            Where is the criminal inquiry into the assault of this women? The fact that there isn’t one speaks volumes.

    • Suzi Q 38

      It is too expensive to file a “frivolous” lawsuit.
      Most people can not afford to do so, and most lawyers won’t take cases on contingency unless they are very strong. Most lawsuits involve hiring expert witnesses (nurses and doctors) to testify on your behalf. it’s all a big money game, and the true winners are not the patients….it’s the lawyers on both sides.

      Maybe you are talking about a lawyer who happens to be a patient. Maybe that possible, but not as common as the doctors think.

      • Patient Kit

        Maybe you’re right, aka as maybe I’m wrong. ;-). I know that I certainly can’t afford to file a malpractice suit. Not that I’ve ever wanted to.

        I guess I was under the possibly false impression that there are a lot of unwarranted malpractice suits based on: (a) the generally lawsuit-happy culture we live in (b) the complaints of many docs about malpractice suits (c) all the lawyer advertisements I’ve seen asking people whether anything has ever gone wring in their life and, if so, claiming they can help (d) the amazing amount of people who ask me if I’m going to sue anytime anything bad happens to me; and (e) many people seem to believe that someone has to be to blame for every single bad thing that happens. Nobody wants to believe that sometimes bad things happen in life that are nobody’s fault.

        Maybe you are right and only warranted malpractice suits are filed. If so, what does that say about the state of medicine in the US?

        • Suzi Q 38

          As far as the ads and all of that, they are “fishing” for the big fish….a company that makes the “parts” that go into your body….like the hip thing or the knee replacement part…the da Vinci robot, etc.
          These companies are worth gazillions. The law firm may want to put your name on a list for a class action suit. If the law firm wins one of these “biggies,” they will be rich. You may win a few thousand dollars, which the insurance company may file for later. Also, they will subpoena any doctor that is involved for a deposition.

          The fact remains is that anyone can sue for anything. People sue for far less than bad medical work, so you can imagine what happens when a really bad outcome or death occurs to someone you know.

          That being said, it doesn’t mean that they will win in court. With medical cases, they want to prove negligence, and that at times, is difficult to do, as people die of natural causes everyday. The doctor and hospital is not necessarily at fault.

          I have learned that hospitals are very dangerous places to be these days.

          Try to stay out of them. If you are in one, be very aware and careful. If you have any doubts, leave if temporary health permits. Regroup at home, do your research, and get yourself to another doctor and /or hospital that is better for you.

  • John C. Key MD

    It appears that Mr Cohen’s actions in this instance were entirely honorable…not so for many of his colleagues in other claims.

    I suppose things vary from state to state, but in my state a complaint to the state medical board would have triggered an aggressive investigation in cases such as this. If you want to “punish” a doctor, a proper defense before the board can easily run into five figures even for a frivolous complaint. And the board is not without its flaws: in my case as a primary care physician, the “peers” passing judgement on me were a psychiatrist and an attorney–no primary care doc in sight.

    Nevertheless, going the medical board route is probably more appropriate and effective than going before the plaintiff bar. But to the docs reading this–don’t be hesitatant to hire an experienced administrative law attorney–the Board is often a law unto itself and has the ability to shoot first and ask questions later, if at all.

    • DeceasedMD1

      It’s interesting because I think the Board’s reaction is very variable dependent on what state you’re in. Where I am you can go on a 6 week vacation and abandon a pt without a covering doc and get away with it. (I am aware of a case like this involving a specialist, and nothing was done.)

    • Suzi Q 38

      Most boards do not have the staff to go after doctors, and don’t care….at least in our state, California.

    • eqvet2015

      Stupid outsider question – does license defense not exist in the realm of human malpractice insurance?

  • Steven Reznick

    Florida has a very responsive Board of Medicine. A complaint should have been filed with them. The author hints that if a complaint is filed with JCAHO it is unlikely to be dealt with. This is the basis for Mr. Cohen justifying the current tort system. What exactly occurred in this case? Has a complaint been filed. Clearly as outlined this is a clear cut case of arrogance and indifference by a professional. Most hospital staff by laws I have seen require a patient to be seen by their attending physician with a note written daily so the scenario presented is hard to imagine. As the radio personality Paul Harvey used to say ” let’s hear the rest of the story.”

    • ninguem

      Steve.

      Who is the attending physician here?

      The doc that allegedly refused to come in. Is that the attending physician for this admission? Or is this the patient’s outpatient attending?

      It’s not clear to me, from my read.

      My first impression was the doc that refused to come in was the outpatient attending, being asked to come in and overrule the hospitalist.

      But maybe I misunderstand.

  • Thomas D Guastavino

    Here we go again. Physicians just stood by while 98,000 people needlessly died. Once and for all will someone define for me what they consider to be an “avoidable error”?

    • eqvet2015

      Anything that produces a bad outcome, including failing to purchase and use necessary equipment like fairy wands and crystal balls.

      • Thomas D Guastavino

        Just as I thought

  • NormRx

    Oh come on now. If you go by billable hours, lawyers work a 48 hour day.

  • http://intellectualfollies.blogspot.com/ Vamsi Aribindi

    Mr. Cohen unfortunately misses a critical part of the problem in his own story: Karen wanted to sue BOTH the doctor AND the hospital. Who screwed up in this case? If anyone, it’s the doctor. Why sue the hospital as well? Doing so merely ensures that the hospital will not take disciplinary action against the doctor- because if it does, the hospital sabotages their own defense.

    Even if Karen in this case did not want to sue the hospital alongside the doctor, Mr. Cohen would be negligent if he didn’t recommend suing the hospital anyway- because otherwise the doctor could mount the so-called empty-chair defense: blaming the hospital for everything and getting off scott-free. The structure of our legal system encourages hospitals to protect bad doctors instead of disciplining them.

    And finally, just a few quick factual errors: Mr. Cohen seems to believe that Medicine didn’t implement work-hour restrictions till 2011 because we’re just that hidebound. In reality, the number of errors from hand-offs (necessary b/c of work hour restrictions) has been shown to be equal if not greater than those due to sleep deprivation. And plus, board pass rates are going down.

    The NY-Pres Ob/Gyn reforms worked for a single year that we know of- cases went from 5 to 0. That may well just be a fluctuation- or darker forces may be at work which NY-Pres was reticent to disclose (more on that in a bit). A Times Union piece recently showed that the single-highest cause of Obstetric lawsuits is cerebral palsy- and rates of cerebral palsy have not been linked what the Ob/gyn does.
    http://www.timesunion.com/opinion/article/Patient-safety-Tort-reform-Both-1340368.php

    Finally, the money that is paid out by Ob/Gyns leads to VERY perverse outcomes. Mr. Cohen may not care, but the reason the C-section rate remains higher than it should is because Ob/Gyns are terrified of getting sued. In response to a recent 80 million dollar settlement against Johns Hopkins, where a women who labored at home for 3 hours before coming into the hospital still managed to sue for delayed delivery, at least one California hospital that I know of has a new protocol: every pregnant women in labor goes straight to the OR. C-section is presumed to be needed until proven otherwise. This WILL reduce lawsuits- but will also lead to a lot of unnecessary c-sections. I wonder if this was part of what NY-Pres did- make themselves immune to lawsuits by “offering” c-sections to a lot more women and documenting refusals.

  • Lisa

    I would expect a surgeon or doctor who is caring for hospitalized patients to arrange to have a another doctor handle his calls when he is on vacation rather than respond to a call by saying that he deserves a vacation too. The doctor’s response verged on unethical and I can uderstand why the patient’s daughter wanted to sue the doctor.

    I don’t think the point of this article is to defend malpractice lawyers, but to point out the fact that frustration with changing to the status quo can be part of the motivation.

    • guest

      I have a feeling that we are not hearing the entire story from Mr. Cohen. I cannot imagine a situation in which a hospitalized patient would go three days without being seen by a doctor. It seems much more likely that there was a covering doctor, but that Mr. Cohen’s client did not want to deal with that doctor, or was having a hard time contacting that doctor, or something along those lines.

      Certainly I would not disagree that the attending physician’s response of “deserving a vacation, too” is not very professional, although who knows how provoked he may have been by whatever demands were being made of him on his weekend off. And yes, I happen to agree that even physicians deserve to have some weekends off here and there.

      • Lisa

        Who know what the back story is or how provoked the doctor was? My reponse was directed at Dole, who seems to think that the doctor’s actions were fine and that the author was rabble rousing to defend malpractice laywers, rather than pointing out the frustrations and desire to effect change that can lead to someone wanting to sue.

        • guest

          I am responding to your statement “the doctor’s response verged on unethical.”

          We don’t really know the context in which he made that statement; it seems extremely unlikely that he made it in the context of having a patient in the hospital who was not being covered by another doctor.

          Conclusions about his being unethical are just assumptions, based on what seems likely a partial presentation of facts.

          • Lisa

            Perhaps I should have said the doctor’s actions as presented. My point remains the same.

          • ninguem

            The doc’s actions are not presented clearly here. The most important question was, the doctor who declined to come in, was that doctor the attending physician for this hospital admission?

            My first take was the doctor being asked to come in, was the outpatient attending. **IF** that’s the case, then it may well be inappropriate to demand the doctor come in. The person who should be asked to change medicines, should be the INPATIENT physician. The “hospitalist”.

            If the doctor being asked to come in, really was the attending physician for this inpatient admission, that’s another matter.

            I could be misunderstanding the story as presented.

          • Lisa

            I thought the doctor who declined to come in was the attending physician for the inpatient admission because the article said he was the one who had prescribed the medications. djohnsmd said the story sounds bogus, but DecreasedMD1 said that it might be possible in his state.

            The story still illustrates that frustration can be what leads to the desire to sue.

          • ninguem

            Prescribed the medicines…….when?

            I can’t tell from the story as presented. The lady is in the hospital for a reason.

            Is the lady in the hospital because of a medication reaction, as in, the medication was prescribed as an outpatient?

            Or was the lady in the hospital for some other reason, and medication was prescribed in the hospital by this doctor who allegedly said he needed a vacation?

          • Lisa

            Maybe the author will come along and enlighten us….

  • doc99

    There was also a positive cocaine test result, hence the lack of the mega-millions judgement.

  • Suzi Q 38

    Yes, it is not always about the money. Since no one wants to admit fault or apologize, including the hospital, patients get angry.
    I still say that some lawsuits can be avoided if there is some way to smooth over the situation and the doctor is brought in and told he shouldn’t act like an idiot( saying that he was off and not offering another doctor on call).
    Sometimes doctors act like jerks, and the only way to get their attention is to call patient advocacy and complain to their boss.

    That being, said, even the CEO just makes excuses for their actions.
    Good thing most of us work hard for our money. If I had $50K lying around, filing a lawsuit would be just desserts for the doctor and the hospital. I would not care if it got dismissed months or years later.

    Sometimes you get angry enough and teaching them a lesson in compassion and communication is what you really want to do. The money paid to the lawyers and the legal system is just the “price of admission.”

    I think that they are better off asking for a mediation meeting, private, between the doctor and patient with a counselor, advocate, or mediator present. Maybe a patient who is allowed to vent at the doctor for 20 minutes is all that needs to be done. I don’t know if a doctor would apologize, but If so, I think it would help immensely.

    Some of our stories could end up on Yelp or other websites and affect a hospital and or doctor’s reputation. If other patients figured out that they had similar stories with certain doctors to share, well, that would be interesting, wouldn’t it?

  • http://www.CommunicatingWithPatients.com/ Edward Leigh, MA

    In general, people sue because they angry, not because they are greedy. Not all patients who experience medical errors rush to file a medical malpractice claims. What is the difference between the people who sue and people who do not? There are many variables, but a lot comes down to the relationship with the physician. If the relationship is poor and an unexpectedly event occurs, the risk of malpractice is high. However, if a good solid trusting relationship is present, the chances of a lawsuit are diminished. I have interviewed hundreds of patients who experienced medical errors. Many did not sue because they told me they loved their doctors too much. However, all the patients did want one thing – change. They wanted to know how things will change to avoid this same situation from happening to other people.

    • Suzi Q 38

      You are so right.

      My particular case would have been in medical conversation called “a near miss,” I’m not sure.
      I was on my way to becoming a quadriplegic while trying in vain to get my doctors to believe that I had a problem. It turned out that I had a severe spinal stenosis in my c-spine. The damage to my mobility was irreversible.They simply thought that i was complaining about nothing. They must of made jokes about me and called me their “whiner.”
      Anyway, now that I an safely away from their bad care and doing so much better, I am thinking of complaining to anyone that will listen, including potential new patients who read reviews of doctors and hospitals on Yelp, Heathgrades, etc.
      I want to let people know that not all doctors care….at least not the two I had.

      • Mike Henderson

        I also agree, people sue out of anger. They are told by the lawyers that this is how to “make sure it never happens again.” However, I disagree with the author that lawsuits only bring about positive change. He doesn’t mention or consider the clearly evident negatives that they also bring about. Sure, on occasion a lawsuit may shed light on something that needs to be and ultimately is addressed because of a lawsuit. But what about looking at the entire effect of the current malpractice systems – it’s terrible. The positives that lawyers focus on are the exception, not the rule. How does inducing fear and anger in physicians with the threat of lawsuits actually make physicians perform better? I have no idea. All I know is that it induces overutilization of medical resources leading to overdiagnosis and overtreatment and harm to patients.

  • Danny Getchell

    Yep. A jury concluded that someone else killed Nicole Simpson, too.

  • William Viner

    Mr Cohen, if lawsuits aren’t just about the money, then why are your fees 30-40% plus expenses before the injured patient gets their share? I’ve read articles where the average fees the lawyers collect are in the 70+%ile. If you are so interested in helping people, then why don’t they get the majority of the award?

  • ninguem

    There’s something not clear here.

    WHO is the attending physician for this admission?

    My first take, the patient was admitted to the usual hospitalists, the inpatient service, and the person who declined to come in was the outpatient physician.

    If that’s true, there’s no malpractice, no JCAHO issue, no issue for the Board to investigate.

    But maybe I’m mis-reading this.

  • john doe

    My interest in this story is the lack of any meaningful investigation into the incident. The Joint Commission seems to exists solely for their own interest/greed. Their audits and ever changing criteria for patient care are nothing more than an annoyance that has to be tolerated by the hospital once a year. And now there is a new player on the block in the hospital accreditation racket.
    This new player is DNV(Det Norske Veritas). DNV operations include ship transport, energy (including wind and solar), aviation, automotive, finance, food, health care, and information technology. It also conducted the investigation of the Deepwater Horizon spill. I am surprised they have any room on their plate for hospital oversight. I think there oversight will be far less than JC. So that means that hospitals will run to DNV. Should get interesting soon.
    Unfortunately, neither one of this organizations will do anything to help the individual after they have been hurt at a hospital. The only choice is turn the other cheek or blow a bunch of money on a lawyer. But, I have heard that some countries deal with this issue by setting up a group of professionals to judge the injury of the individual as well as the negligence of the doctor and award a monetary sum to reflect this.
    Interesting idea.

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