Better (11 page)

Some callers have received negligent care but suffered little harm. In a typical scenario, a woman sees her doctor about a lump in her breast and is told not to worry about it. Still concerned, she sees another doctor, gets a biopsy, and learns that
she has cancer. "So she calls me up, and she wants to sue the first doctor," Lang said. "Well, the first doctor was negligent. But what are the damages?" She got a timely diagnosis and treatment. "The damages are nothing."

I asked him how great the prospective damages had to be to make the effort worth his while. "It's a gut thing," he said. His expenses on a case are typically forty to fifty thousand dollars. So he would almost never take, say, a dental case. "Is a jury going to give me fifty thousand dollars for the loss of a tooth? The answer is no." The bigger the damages, the better. As another attorney told me, "I'm looking for a phone number"--damages worth seven figures.

Another consideration is how the plaintiff will come across to jurors. Someone may have a great case on paper, but Lang listens with a jury in mind. Is this person articulate enough? Will he or she seem unreasonable or strange to others? Indeed, a number of malpractice attorneys I spoke to confirmed that the nature of the plaintiff, not just of the injury, was a key factor in the awarding of damages. Vernon Glenn, a highly successful trial attorney from Charleston, South Carolina, told me, "The ideal client is someone who matches the social, political, and cultural template of where you are." He told me about a case he had in Lexington County, South Carolina--a socially conservative, devoutly Christian county that went 72 percent for George W. Bush in the 2004 election and produces juries unsympathetic to malpractice lawyers. But his plaintiff was a white, Christian female in her thirties with three young children who had lost her husband--a hardworking, thirty-nine-year-old truck mechanic who loved NASCAR, had voted Republican for the past twenty years, and
had built the addition to their country home himself--to a medical error. During routine gallbladder surgery, doctors caused a bowel injury that they failed to detect (his wife called several times about his worsening pain after he was discharged home from the hospital, but she was told to just give him more pain medication) until he collapsed and died. The woman was articulate and attractive but not so good-looking as to put off a jury. She wasn't angry or vengeful but was visibly grieving and in need of help. If the family hadn't spoken English, if the husband had a long history of mental illness or alcoholism or cigarette smoking, if they'd been involved in previous lawsuits or had a criminal record, Glenn might not have taken the case. As it was, "she was darn close to the perfect client," he said. The day before trial, the defendants settled for $2.4 million.

Out of sixty callers a week, Barry Lang might take the next step with two and start reviewing the medical records for hard evidence of negligent care. Many law firms have a nurse or a nurse practitioner on staff to do the initial review. But Lang himself gathers all the records, arranges them chronologically, and goes through them page by page.

There is a legal definition of negligence ("when a doctor has breached his or her duty of care"), but I wanted to know his practical definition of the term. Lang said that if he finds an error that resulted in harm and the doctor could have avoided it, then, as far as he is concerned, the doctor was negligent.

To most doctors, this is an alarming definition. Given the difficulty of many cases--unclear diagnoses, delicate operations--we all cause serious complications that might have been avoided. I told Lang about a few patients of mine: a
man with severe bleeding after laparoscopic liver surgery, a patient who was left permanently hoarse after thyroid surgery, a woman whose breast cancer I failed to diagnose for months. All were difficult cases. But in looking back on them, I also now see ways in which I could have done better. Would he sue me? If he could show a jury how I might have avoided harm and if the damages were substantial, "I would sue you in a flash," he said. But what if I have a good record among surgeons, with generally excellent outcomes and conscientious care? That wouldn't matter, he said. The only thing that matters is what I did in the case in question. It's like driving a car, he explained--I could have a perfect driving record, but if one day I run a red light and hit a child, then I am negligent, he said.

Lang insists that he is not on a crusade against doctors. He faced three malpractice lawsuits himself when he was a surgeon. One involved an arthroscopy that he performed on a young woman with torn cartilage in her knee from a sports injury. Several years later, he said, she sued because she developed arthritis in the knee--a known, often unavoidable outcome. Against his wishes, the insurer settled with the patient for what Lang called "nuisance money"--five thousand dollars or so--because it was cheaper than fighting the suit in court.

In another case, a manual laborer with a wrist injury that caused numbness in three fingers sued because Lang's attempted repair made the numbness worse and left him unable to work. Lang said that he'd warned the patient that this was a high-risk surgery. When he got in, he found the key nerves encased in a thick scar. Freeing them was exceedingly difficult--"like trying to peel Scotch tape off wallpaper," he said--and
some nerve fibers were unavoidably pulled off. But the insurer wasn't certain that the argument would prevail at trial and settled for $300,000. Both cases seemed unmerited, and Lang found them as exasperating as any other doctor would.

The third case, however, was the result of a clear error, and although it took place two decades ago, it still bothers him. "I could have done more," he told me. The patient was a man in his sixties whom Lang had scheduled for a knee replacement. A few days before the surgery, the man came to Lang's office complaining of pain in his calf. Lang considered the possibility of a deep-vein thrombosis--a blood clot in the leg--but dismissed it as unlikely and ordered no further testing. The patient did have a D.V.T., though, and when the clot dislodged two days later, it traveled to his lungs and killed him. Lang's insurer settled the case for about $400,000.

"If I had been on the plaintiff's side, would I have taken that case against me?" he said. "Yes."

Being sued was "devastating," Lang recalled. "It's an awful feeling. No physician purposely harms his patient." Yet he insists that, even at the time, he was philosophical about the cases. "Being sued, although it sort of sucks the bottom out of you, you have to understand that it's also the cost of doing business. I mean, everybody at some time in his life is negligent, whether he's a physician, an auto mechanic, or an accountant. Negligence occurs, and that's why you have insurance. If you leave the oven on at home and your house catches fire, you're negligent. It doesn't mean you're a criminal." In his view, the public has a reasonable expectation: if a physician causes someone serious harm from substandard
care or an outright mistake, he or she should be held accountable for the consequences.

The three cases that Lang faced as a doctor seemed to me to epitomize the malpractice debate. Two of the three lawsuits against him appeared unfounded, and, whatever Lang says now, the cost to our system in money and confidence is nothing to dismiss. Yet one of them concerned a genuine error that cost a man his life. In such cases, don't doctors owe something to patients and their families?

B
ILL
F
RANKLIN IS
a physician I know who has practiced at Massachusetts General Hospital, in Boston, for more than four decades. He is an expert in the treatment of severe, life-threatening allergies. He is also a father. Years ago, his son Peter, who was then a second-year student at Boston University School of Medicine, called to say that he was feeling sick. He had sweats and a cough and felt exhausted. Franklin had him come to his office and looked him over. He didn't find any obvious explanation for his son's symptoms, so he had him get a chest X-ray. Later that day, the radiologist called. "We've got big trouble," he told Franklin. The X-ray showed a tumor filling Peter's chest, compressing his lungs from the middle and pushing outward. It was among the largest the radiologist had encountered.

After he had pulled himself together, Franklin called Peter at home to give him and his young wife the frightening news. They had two children and a small house, with a kitchen that they were in the midst of renovating. Their lives
came to a halt. Peter was admitted to the hospital and a biopsy showed that he had Hodgkin's lymphoma. He was put on high-dose radiation therapy, with a beam widened to encompass his chest and neck. Still, Peter was determined to return to school. He scheduled his radiation sessions around his coursework, even after they paralyzed his left diaphragm and damaged his left lung, leaving him unable to breathe normally.

The tumor proved too large and extensive for a radiation cure. Portions of it continued to grow, and it spread to two lymph nodes in Peter's lower abdomen. The doctors told his father that it was one of the worst cases they had seen. Peter was going to need several months of chemotherapy. It would make him sick and leave him infertile, but, they said, it should work.

Franklin couldn't understand how the tumor had got so large under everyone's eyes. Thinking back on Peter's care over the years, he remembered that four years earlier Peter's wisdom teeth had been removed. The surgery had been performed under general anesthesia, with an overnight stay at MGH, and a chest X-ray would have been taken. Franklin had one of the radiologists pull the old X-ray and take a second look. The mass was there, the radiologist told him. What's more, the original radiologist who had reviewed Peter's chest X-ray had seen it. "Further evaluation of this is recommended," the four-year-old report said. But the Franklins had never been told. The oral surgeon and the surgical resident had both written in Peter's chart that the X-ray was normal.

If the tumor had been treated then, Peter would almost certainly have been cured with radiation alone, and with considerably less-toxic doses. Now it seemed unlikely that he'd
finish medical school, if he survived at all. Bill Franklin was beside himself. How could this have happened--to one of MGH's own, no less? How would Peter's wife and children be supported?

Thousands of people in similar circumstances file malpractice lawsuits to get answers to such questions. That's not what Bill Franklin wanted to do. The doctors involved in his son's case were colleagues and friends, and he was no fan of the malpractice system. He had himself been sued. He'd had a longtime patient with severe asthma whom he had put on steroids to ease her breathing during a bad spell. Her asthma had improved, but the high steroid doses produced a prolonged psychosis, and she had to be hospitalized. The lawsuit alleged that Franklin had been negligent in putting her on steroids, given the risks of the medication, and that he was therefore financially responsible for the aftermath. Franklin was outraged. She'd had a life-threatening problem, and he'd given her the best care he could.

Now, for Peter's sake, he decided to see the hospital director. He asked for a small investigation into how the mistake had been made and how it might be prevented in the future; he also wanted to secure financial support for Peter's family. The director told him that he couldn't talk to him about the matter. He should get a lawyer, he said. Was there no other way? Franklin wanted to know. There wasn't.

This is where we in medicine have failed. When something bad happens in the course of care and a patient and family want to know whether it was unavoidable or due to a terrible mistake, where are they to turn? Most people turn first to the doctors involved. Doctors have an ethical responsibility
to tell patients when an error has harmed them. But what if they aren't responsive--what if they seem to be worrying more about a lawsuit than about the patient--or what if their explanations don't sound quite right? People often call an attorney just to get help in finding out what happened.

"Most people aren't sure what they're coming to me for," Vernon Glenn, the South Carolina trial attorney, told me. "The tipoff is often from nurses saying, 'This was just wrong. This should never have happened.'" The families ask him to have a look at the medical files. If the loss or injury is serious, he has an expert review the files. "More often than you would think, we'll say, 'Here's what happened. We don't think it's a case.' And they'll say, 'At least we know what happened now.'"

Malpractice attorneys are hardly the most impartial assessors of care, but medicine has offered no genuine alternative--because we physicians are generally unwilling to be held financially responsible for the consequences of our mistakes. Indeed, the one argument that has persuaded many doctors to be more forthright about mistakes is that doing so might make patients less likely to sue.

Yet, when the tables are turned and someone close to a doctor is hurt by a medical mistake, our views seem to shift. In a recent national survey, physicians and nonphysicians were given the following case: A surgeon orders an antibiotic for a sixty-seven-year-old man undergoing surgery, failing to notice that the patient's chart says that he is allergic to the drug. The mistake is not caught until after the antibiotic is given, and, despite every effort, the patient dies as a result. What should be done? Unlike 50 percent of the lay public, almost none of the physicians believed the surgeon should lose his license. But 55
percent of the physicians said that they would sue the surgeon for malpractice.

That's what Bill Franklin, with some trepidation, decided to do. Lawyer friends warned him that he might have to leave his position on staff if things didn't go well. He loved the hospital and his practice; Peter's oral surgeon was a friend. But his son had been harmed, and he felt that Peter and his young family were entitled to compensation for all that they had lost and suffered. Peter himself was against suing. He was afraid that a lawsuit might so antagonize his doctors that they would not treat him properly. But he was persuaded to go along with it.