I have been fortunate in my forty-five-year medical career never to have been sued for the care I delivered to a patient. I attribute this, in part, to being a family physician and having ongoing relationships with my patients and, in part, to being willing to admit to my mistakes if I make them and things turn out badly. I see how gut-wrenching going to court is for doctors so it gave me no pleasure a few years ago to have to sue two of them, an orthopedic surgeon and an anesthesiologist, who performed a laparoscopic rotator cuff repair on my wife. Before her scalene nerve block had worn off, she experienced severe pain in her right thumb and index finger. Nothing they did fixed it. Frustrated, in pain, and unable to use her dominant hand for the things that gave her pleasure in life, she self-referred to a pain clinic, where it was eventually determined that the culprit was likely an errant scalene nerve block and prolonged traction during surgery.
When confronted with the reports, the doctors wouldn’t communicate with us any further. A request for a case review on my part failed to find them at fault by their colleagues. I was left with a wife in chronic pain whose doctors had obfuscated, stonewalled, and refused to take responsibility or apologize for the injury they had caused. Wanting them to feel our pain, I decided to sue.
It took calls to five different attorneys before I found one who was willing to give us advice but not take the case.
“Why won’t you take our case?” I asked William, a malpractice lawyer.
“For the same reason none of the other lawyers you called would take it,” William said. “There just isn’t enough money to cover my expenses, so we cherry-pick our cases and hope they settle out of court.”
William was willing to give us pro bono advice, and I began my education about how the legal system works in “med mal.”
“First of all,” William counseled, “you have a one-year statute of limitations from the date of your wife’s surgery to file a lawsuit, after which any claim may be barred. Since it’s been almost a year, you can file a formal notice of intent to commence a civil action for professional negligence. It’s in section 364 of the California Code of Civil Procedures. That will buy you another 90 days to file a formal complaint.”
I was awash in confusion and felt like it was my first day of medical school, and I was being asked to take care of a complicated patient.
“Sorry, but I have no idea how to do that,” I said. William must have taken pity on me because he volunteered to draw up the document.
“Some doctors get away with murder,” he said. He then told me stories about his clients who had been harmed during procedures and lost in court, doctors who refused to settle though they were at fault, and doctors who wanted to settle but their insurance companies wouldn’t let them. I was agape. I always thought the lawyers who defended doctors were the good guys. “Less than 10 percent of the cases that go to trial in California are decided for the plaintiff”, William said.
“By the way,” William asked, “You didn’t sign an arbitration agreement, did you?” I admitted that I had. “That was a mistake,” William said. “The arbitrators are usually retired judges and lawyers who depend on doctors for work. If they go against them, they’re unlikely to get called upon again to arbitrate. There is a built-in bias to side with the doctor. You would have been much better off with a jury trial”.
My ninety-day notice got no response, so I filed a formal suit before the time expired. William again helped me with this as I had no idea what I was doing. We were plaintiffs in a Propria Persona complaint, meaning that we were representing ourselves. Their lawyers threatened a protracted legal battle with us losing and having to pay all the court costs. I felt like David going against Goliath, except that I didn’t have a slingshot. It was me versus experienced, high-priced lawyers who had been there many times before. These guys are the reason there are lawyer jokes, I thought. Before the court date, we dismissed the case. William again helped me with the paperwork.
It was more than disheartening that fellow physicians lawyered up and hid instead of allowing that they were only human, made mistakes, had a bad result, and a patient suffered. Our health care and legal systems do not readily accommodate apologies or admissions of carelessness or wrongdoing from us. Confessions of accountability for untoward results are not on the agenda, only limitations of monetary losses by the medical insurance industry. It was enough to have made me hang up my stethoscope before I had to apologize to a patient for harming them and leaving them little recourse to be financially compensated for the damage I may have caused. Isn’t that, after all, what our malpractice insurance is for? We carry it not only because we have to for hospital privileges but also because we owe it to our patients when we cause them injury. Getting rightfully sued may not mean we are bad doctors, just responsible ones who are not perfect and may sometimes be negligent. If being so caused our patient harm, we should be grateful they can gain some solace from remuneration.
The author is an anonymous physician.