Why must medical malpractice cases be devoid of decency?

Part 2 of a series. Read part 1.

I realized I was entering into a process the rules of which were entirely separate from normal human interaction when it hit me that news of the lawsuit was in the newspaper before anyone had had the decency to contact me. What kind of people act like that? Civilized behavior, respectfulness — in short, all the ways in which you’d think nice people would behave — are as out of place in the medical malpractice arena as are gardenias in a cesspool.

I realize that by definition it’s an adversarial process. But why must it be completely devoid of decency, let alone ethical behavior? Sure: I’m an aggrieved doctor. How could I possibly see with a clear head? Well, I think I can. And what I see is a system where anything goes, and the people pulling the levers not only feel free to cross any line, it simply doesn’t occur to them that there could be any other way to do business. Maybe I just encountered the worst of the lot; I hope so. The guys I dealt with seemed to be closer to reptilian than human, and they seemed perfectly happy to occupy that stratum. Loved it, I’d say. And whereas attorneys are the lizard-pimps, they have their snake-whores in the form of a pack of willing sleazy doctors. Am I making myself clear?

One part of the saga (and only one) was actually civilized and smart, and happened as scheduled. The Oregon Board of Medical Examiners, in conjunction with the insurance company, had a policy of convening a hearing for cases involving a certain level of money. In this case, a panel of bright and independent surgeons reviewed the case in detail, and called upon me to appear before them to explain and defend myself. Their purpose was to make a recommendation to the insurer either to settle or fight, based on their assessment of me and my care. It happened early in the timeline, on the day and time scheduled (by a long shot, nothing else did!); I got a thorough grilling after a comprehensive look at the records. Their conclusion was that I’d acted properly and the case should be defended vigorously. After the session, for a very brief time I felt pretty good.

Early in the process I became aware that I was being sued for about twice the amount of my coverage. In addition to scaring me to death, raising the specter of total financial ruin and lifelong indebtedness, and causing me to awaken in a cold sweat nightly, this led to the suggestion by my insurance company that it might be in my interest to engage my own attorney. (They provide one, of course; I don’t fully understand the recommendation, but I gather it’s standard stuff. Among other things, it has the effect of raising the tension exponentially, which is, I’m sure, exactly what the plaintiff’s attorney has in mind.) My dad told me it made sense, and hooked me up with a guy. Fees, of course, were not covered by my insurance. It was at this point that I got an inkling that I was being played like a harp, everyone enjoying the music but me.

Reams of paperwork began to arrive. Among the first was the report from a physician hired by the plaintiff to review the records. He claimed to be a surgeon, somewhere in California. I’ve since become aware that there are virtual clearinghouses for such scumbags, advertised in legal journals: “Need a surgeon, a neurologist, a pediatrician to say whatever you want? We got ’em. Give us a call.” I read what this person had written, and was literally sick to my stomach.

“In all my years of case reviews,” this professional testifier said, “I’ve never seen such wanton disregard for standards of care …”

Among his more laughable (if it had been funny) statements was, “The large bowel is not really larger than the small bowel.” Most astounding was this: “The surgeon describes his operation as ileocolostomy (in the previous post, recall, I told you to remember that term), yet he sewed the ends together. If he doesn’t even know what he did, how can we believe anything else he says?”

This supposed surgeon, this idiot-for-hire, doesn’t know surgical terminology; yet he’s the reason the suit goes forward: with an “expert” certifying that malpractice had occurred, the judge can’t toss the case out. It has to be adjudicated in some way. That’s the sick complicity of plaintiff’s attorneys and these docs who make a living as testifiers. We had engaged several legitimate and credible experts, including the chief of surgery at the University of Oregon to defend my care. They had only this guy. But it was enough. The case had legs.

I’ll say this: The attorney provided me by the insurance company was a great guy, and it was he with whom I mostly interacted. I never actually met the one I hired for myself; we exchanged a few phone calls and letters. The one from the insurer was an experienced and young guy, and he always tried to make me feel OK. When I’d pointed out to him the many ways in which the plaintiff’s expert had his head up his ass, he just said he could hardly wait to get him on the witness stand.

My next lesson in the way of the world was when the records arrived from the referring family doc. The last entry in his notes from the time of transfer was, “Situation critical. Urgent surgery advised.” WTF? It had been a couple of years, but I knew I’d remember such a statement had it been in the notes I received with the patient. Poor doctor FP: He must not have remembered that he’d sent copies of his notes with the patient at the time of transfer and that they’d be included in the hospital records. Clear as day, the son of a bitch had altered his notes later, to cover his ass once again. What did he care? I wasn’t in his area any more. If I had been, if I’d ever seen him again, I might have tried to punch him in the nose (he was an old guy: I think I could have taken him). But a former colleague trying to slit my throat: That wasn’t the half of it.

Something of which I’d not been aware until the suit was that during the wee hours, the nurse taking care of my patient had had trouble measuring his blood pressure, and had to ask for help. Another nurse had brought in a doppler apparatus to facilitate the measurement, and eventually they’d gotten a number; a low one. For some reason, they did not see fit to call me. In fact — it was later revealed — the man’s mom had spent the night at his bedside and when the blood pressure problem had arisen, she’d asked the nurse to call me. She didn’t, saying she didn’t want to disturb the head nurse (at the time, calls to doctors after midnight had to be cleared through the nursing supervisor).

Amazingly enough — and unknown to the nurses at the time — the mom had kept a detailed diary during her watch, including her rejected request. That became important later. Particularly (this would make a ridiculously unbelievable novel) because the nurse taking care of my patient had died of cancer a couple of years later, before the lawsuit was filed.

The hospital was also being sued, and they had their own lawyer. So now there were four attorneys with their meters running, all playing their roles as if it made some sort of sense. (I have no doubt that had it been possible for the me and the man’s family and the insurance companies been able to sit together in a room like people who wanted fairness, had we talked directly without fear of consequences and without lawyers, we’d have come to a proper result years sooner with the money going where it was needed, instead of being spread among the attorneys). The hospital counsel, it turns out, was the ultimate sleaze bag. Somewhere along the line he came out from under his rock long enough to interview a bunch of nurses:

“Dear departed nursie was a good nurse, wasn’t she?”

“Oh yes, she was.”

“Wasn’t she the sort who’d call a doctor about low blood pressure?”

“Well, sure, I guess she must have been.”

“Do you think it’s possible she called Dr Schwab and just forgot to write it down?”

“Gee, I guess it is.”

“Likely? Do you think it likely she called him?”

“I suppose so …”

Copies of the depositions were sent to me, and that’s pretty close to verbatim, taking into account the passage of time, the dulling of memory, and the festering wound. And the hate; oh yeah, the hate. It took me from scared to death, to mad as hell. Don’t know if that’s a good thing; it didn’t help me sleep any better, but it made me ready to face the prospect of testifying. I wanted to see that asshole myself, and show the world what kind of scum he was.

I hoped that — Perry Masonically — my attorney could spring the diary on him, without prior warning, in court. Maybe have it brought in by an efficient and attractive personal assistant, entered into evidence to the murmurs of the gallery. On the other hand — so my attorney told me — the prospect of the two defendants (me, and the hospital) at each other’s throats would be a delight for the plaintiffs. And with what little I understand about the legal rules of warfare, I’d guess that this “testimony” would have been objected to and rejected.

So the players are lined up and doing their worst: a lying doctor and an incompetent one; two attorneys on the other side, one happily hiring a whore and the other suborning perjury (so it seemed to me) from a group of innocent nurses; and me, with my two lawyers, watching helplessly as people who don’t know me worked gleefully to ruin my reputation, my self-respect, my financial future, caring nothing whatever about facts or fairness, cruising above it all in their slipstream of slime, thinking that’s the way it should be because that’s just the way it is.

How could any good come of it?

Sid Schwab is a retired surgeon who blogs at Surgeonsblog and is the author of Cutting Remarks: Insights and Recollections of a Surgeon.

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