Some Musings on Malpractice
by Lewis Rose '74
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I do not want to use this piece as a soapbox for tort reform or as an indictment of the litigious society in which we find ourselves. I simply want to describe what I experienced and how it affected me. Hopefully, it will make you think about the consequences of the present environment, which may drive seasoned and caring physicians out of clinical practice earlier than they might have wished -- and at a time in their lives when they still have so much to give. This will certainly be a loss to the patients who need such expertise.
Malpractice may be defined by the dictionary as an abandonment of professional duty or a failure to exercise skill or learning resulting in injury to a client. Yet this definition does scant justice to the incredible mental anguish I felt on being served with a civil suit alleging such behavior -- just the beginning of a painfully slow and agonizingly disruptive life experience. In my case, the plaintiff alleged the performance of unnecessary diagnostic procedures to establish the definitive diagnosis of an extremely rare tumor. However, the successful treatment of this tumor was predicated on the absolute accuracy of such a diagnosis. The allegations, in my view, dealt with a difference of opinion in this patient's management that would have been best relegated to a multidisciplinary medical conference and not the courtroom.
My initial response to the charges was repetitive self-interrogation, particularly in view of the fact that there was no fatal result or unexpected complication. (Over five-and-a-half years after the incident, the patient is alive and well and, hopefully, cured.) Internally, I was very proud of the care that I had rendered to a patient with a diagnosis that statistically I would likely never see again in my professional career. But I expressed cynicism over my patient's motives: did he just want to be wealthy now that he was healthy? Did he see my coverage as an easy target, or did he genuinely feel injured by something that I had done? Such self-torment led to depression and sleeplessness. This was the most devastating thing to happen to me in my life.
Knowing that more and more doctors are likely to be sued in the present climate in this country was of little solace. Nor did I take comfort in the fact that six out of ten physicians in practice have been sued for malpractice at least once. My carrier informed me that nearly 60 percent of all such cases are dropped and one-third settled; of the 9 percent that do go to court, 80 percent receive a verdict in favor of the defense. This did little to diminish the tension that it placed on my family and me.
My first defense mechanism was to acquire knowledge in the uncharted territory of the judicial system. I quickly learned that a malpractice suit is merely business for the multitude of lawyers, paralegals, and judges who deal with many such cases; they do not experience the same intensity of emotion that I did about my case. I also observed that the legal mind works in a way totally alien to the medical one. In medicine, I always attempt to seek the correct and true answer on the basis of evidence grounded in the scientific method and peer-reviewed literature. The legal system works on the basis of an adversarial relationship between a plaintiff and a defendant where there is no right answer and no truth, only different interpretations of the facts of the case.
During the case, I traveled the entire path from being served a suit to going to trial. Along the way, there were uninvited and unwelcome visitors, including the plaintiff's attorney and expert witnesses. After I was served with the suit, the next step was a rather perfunctory interrogatory -- basically a litany of questions presented by the plaintiff's attorney. These questions must be answered with extreme care, completely yet succinctly, as they may be used at trial to correlate with what is said under oath.
Next came the deposition, which took place in the unfriendly environment of the plaintiff's attorney's office. As a physician, I have always felt that I have at least some control over a situation. In this setting in "enemy territory," where the entire interaction was unpleasantly confrontational, I was asked a series of questions, many of which were trivial details that had little to do with the substance of the allegations. The plaintiff's lawyer asked them in an effort to get me to falter, and I was fully aware that he attempted to get me to say something that might be used to crucify me at trial. All of this occurred over the drawn out period of many months.
The most distressing and agonizing part of the whole process was the trial. It was delayed twice. Again, the lack of the control and the feeling that I was merely a pawn in a process which has little logic dominated. The delays caused major havoc for my practice in terms of scheduling patients and also in scheduling events with my family. My understanding was that I was to be judged by a jury of my peers; yet how could the twelve members, most of whom have no medical knowledge or experience, still be my peers? How could they understand the complexities of the case to render a fair judgment? I also questioned the ability of the judge to understand or care about the case. And the parade of expert witnesses reconfirmed my feelings that these "hired gun" physicians testifying on behalf of the plaintiff were primarily in it for the money. In my mind, they would be willing to testify to anything that the plaintiff's attorney required in his prosecution of the case.
The cross-examination was particularly difficult. The plaintiff's attorney questioned me on minutia in an attempt to get me to make a mistake. Thankfully, I held my ground, and did not give him one inch of wiggle room. Ultimately, his inability to fully comprehend the medicine and his being in over his head was his undoing. The inherent appropriateness of the care which I rendered my former patient and my sincere appeal won the jury over. After what seemed an eternity, they rendered a verdict in my favor.
Yet my victory was Pyrrhic. I wasted eight full days of my life in court as well as countless hours in preparation and meetings when I could have been doing what I do best -- caring for my patients. I experienced a whole gamut of emotions -- anger, incredulity, and fear for my professional reputation and financial situation. Yet I was able to survive by living life fully and remaining involved professionally and personally over the more than five-year ordeal. I also found the process, in a detached way, to be interesting. My wife, Faina, who was my main confidant, was my bulwark of support throughout. Still, the unpleasantness still will always linger for me.
My malpractice experience has made me more aware of the good times that life has to offer. I have not changed the way I approach my patients, as I have always been compulsive and compassionate in my delivery of care. I still question the entire system of tort, the incredible waste of time and money, and wonder how anyone could want to earn his or her living exclusively doing the work of a personal injury attorney. In addition, I thought about the stress that was placed upon me. At 45, it was bearable, but I do not think that I would want to go through it at 65. In the desire to live life to the fullest and to appreciate all that its short duration has to offer, I have for the first time truly thought about life after full-time practice, certainly at an earlier age. In that respect, perhaps my encounter with the legal system has had the most influence.
Lew Rose is a 1978 graduate of Harvard Medical School. He completed his residency in internal medicine at Thomas Jefferson University Hospital in 1981 and his fellowship in medical oncology and hematology at the Hospital of the University of Pennsylvania in 1984. He has been in full-time clinical practice since then at Jefferson, Methodist, and Nazareth Hospitals in Philadelphia.
