Better (12 page)

At first, the Franklins were told that no lawyer would take the case. The error had been made four years earlier, and this put it beyond the state's three-year statute of limitations. As in most other states at the time, one could not file a civil claim for an action long in the past--never mind that Peter didn't learn about the error until it was too late. Then they found a young Boston trial attorney named Michael Mone, who took the case all the way to the Massachusetts Supreme Court and, in 1980, won a change in the law.
Franklin v. Massachusetts General Hospital et al.
ruled that such time limits must start with the discovery of harm, and the precedent stands today. The change allowed the case to proceed.

The trial was held in 1983, in the town of Dedham, in the same courthouse where, six decades earlier, the anarchists Sacco and Vanzetti had been convicted of murder. "I don't remember much about the trial--I've blocked it out," Bev Franklin, Peter's mother, says. "But I remember the room. And I remember Michael Mone saying those words we'd been waiting so long to hear: 'Ladies and gentlemen, this young
man had a time bomb ticking in his chest. And for four years--
four years
--the doctors did nothing.'" The trial took four days. The jury found in favor of Peter and awarded him $600,000.

Bill Franklin says that he never experienced any negative repercussions at the hospital. His colleagues seemed to understand, and Peter's doctors did their very best for him. At the end of a long year, after six full cycles of chemotherapy, the lymph nodes in Peter's chest continued to harbor residual cancer. He was given a new chemotherapy regimen, which so weakened his immune system that he almost died of a viral lung infection. He was in the hospital for weeks and was finally forced to take a leave from school. The virus left him short of breath whenever he did anything more strenuous than climb half a flight of stairs, and with burning nerve pain in his feet. His marriage slowly disintegrated; a disaster can either draw people together or pull them apart, and this one pulled Peter and his wife apart.

Yet Peter survived. He eventually completed medical school and decided to go into radiology. To everyone's surprise, he was rejected by his top-choice residency programs. A dean at Boston University called the chairman of radiology at one of the programs to find out why. "This guy's a maverick! He's suing doctors!" was the reply. The dean told the chairman Peter's story and then asked, "If this was your son, what would you do?" Peter got in after that. He chose Boston University's program and, when he finished, he was asked to join the staff there. Soon, he was made a division chief. He remarried and is now a fifty-eight-year-old expert on orthopedic imaging, with a brush mustache, a graying thatch of hair, and chronic lung and liver troubles from his chemotherapy. In
2000, he started a teleradiology group that now interprets scans for 150 centers across the country. He is also a special consultant to professional sports teams, including the San Diego Chargers and the Chicago Bears.

He says that his ordeal has made him exceedingly careful in his work. He has set up a review committee to find and analyze errors. Nonetheless, the single biggest budget item for his group is malpractice insurance. As it happens, the most common kind of malpractice case in the country involves allegations that doctors have made the sort of error that Peter once faced--a missed or delayed diagnosis. I asked him how he felt about being responsible for a lawsuit that had made it easier to sue for such claims. He winced and paused to consider his answer.

"I think the malpractice system has run amok," he finally said. "I don't think that my little experience has anything to do with it--the system is just so rampant with problems. But if you're damaged, you're damaged. If we screw up, I think we should eat it." Wasn't he contradicting himself? No, he said; the system was the contradiction. Few of the people who deserve compensation actually get any. His case was unusual in that he did get compensated, and even so, it involved a seven-year struggle before all the appeals and challenges were dismissed. At the same time, too many undeserving patients sue, imposing enormous expense and misery. The system, as he sees it, is fundamentally perverse.

T
HE PARADOX AT
the heart of medical care is that it works so well, and yet never well enough. It routinely gives people years
of health that they otherwise wouldn't have had. Death rates from heart disease have plummeted by almost two-thirds since the 1950s. Risk of death from stroke has fallen more than 80 percent. The cancer survival rate is now 70 percent. But these advances have required drugs and machines and operations and, most of all, decisions that can as easily damage people as save them. It's precisely because of our enormous success that people are bound to wonder what went wrong when we fail.

As a surgeon, I will perform about 350 operations in the next year--everything from emergency repair of strangulated groin hernias to removal of thyroid cancers. For six, maybe eight patients--roughly 2 percent--things will not go well. They will develop life-threatening bleeding. Or I will damage a critical nerve. Or I will make a wrong diagnosis. Whatever Hippocrates may have said, sometimes we do harm. Studies of serious complications find that usually about half are unavoidable, and in such cases I might be able to find some solace in knowing this. But in the other half I will have done something wrong, and my mistake may change someone's life forever. Society is still searching for an adequate way to understand these instances. Are doctors who make mistakes villains? No, because then we all are. But we are tainted by the harm we cause.

I watch a lot of baseball, and I often find myself thinking about the third baseman's job. In a season, a third baseman will have about as many chances to throw a man out as I will to operate on people. The very best (players like Mike Lowell, Hank Blalock, Bill Mueller) do this perfectly almost every time. But 2 percent of the time even they drop the ball or throw it over the first baseman's head. No one playing a full
season fails to make stupid errors. When a player does, the fans hoot and jeer. If his error costs the game, the hooting will turn to yelling. Imagine, though, that if every time Mike Lowell threw and missed, the error cost or damaged the life of someone you cared about. One error leaves an old man with a tracheostomy; another puts a young woman in a wheelchair; another leaves a child brain-damaged for the rest of her days. His teammates would still commiserate, but the rest of us? Some would want to rush the field howling for Lowell's blood. Others would see all the saves he's made and forgive him his failures. Nobody, though, would see him in quite the same light again. And nobody would be happy to have the game go on as if nothing had happened. We'd want him to show sorrow, to take responsibility. We'd want the people he injured to be helped in a meaningful way.

This is our situation in medicine, and litigation has proved to be a singularly unsatisfactory solution. It is expensive, drawn out, and painfully adversarial. It helps very few people. Ninety-eight percent of American families that are hurt by medical errors don't sue. They are unable to find lawyers who think they would make good plaintiffs, or they are simply too daunted. Of those who do sue--about fifty-five thousand a year--most will lose. In the end, fewer than one in a hundred deserving families receive any money. The rest get nothing: no help, not even an apology. And only the worst is brought out in all of us.

T
HERE IS AN
alternative approach, which was developed for people who have been injured by vaccines. Vaccines protect
tens of millions of children, but every year one in ten thousand or so is harmed by side effects. Between 1980 and 1986, personal-injury lawyers filed damage claims in U.S. courts valued at more than $3.5 billion against doctors and manufacturers. When they began to win, vaccine prices jumped and some manufacturers got out of the business. Vaccine stockpiles dwindled. Shortages appeared. So Congress stepped in. American vaccines now carry a seventy-five-cent surcharge (about 15 percent of total costs), which goes into a fund for children who are injured by them. The program does not waste effort trying to sort those who are injured through negligence from those who are injured through bad luck. An expert panel has enumerated the known injuries from vaccines, and, if you have one, the fund provides compensation for medical and other expenses. If you're not satisfied, you can sue in court. But few have. Since 1988, the program has paid out a total of $1.5 billion to injured patients. Because these costs are predictable and evenly distributed, vaccine manufacturers have not only returned to the market but produced new vaccines, including ones against hepatitis, chicken pox, and cervical cancer. The program also makes the data on manufacturers public--who got sued and for what--whereas legal settlements in medical cases are virtually always sealed from view. The system has flaws, but it has helped far more people than the courts would have.

The central problem with any system remotely as fair and efficient as this one is that, applied more broadly, it would be overwhelmed with cases. Even if each doctor had just one injured and deserving patient a year (a highly optimistic assumption), complete compensation would exceed the cost of
providing universal health coverage in America. To be practical, the system would have to have firm and perhaps arbitrary-seeming limits on eligibility as well as on compensation. New Zealand has settled for a system like this. For some thirty years, it has offered compensation for medical injuries that are rare (occurring in less than 1 percent of cases) and severe (resulting in death or prolonged disability). As with America's vaccine fund, there is no attempt to sort the victims of error from the victims of bad luck. For those who qualify, the program pays for lost income, medical needs, and, if there's a permanent disability, an additional lump sum for the suffering endured. Payouts are made within nine months of filing. There are no mammoth, random windfalls, as there are in our system, but the public sees the amounts as reasonable and there's no clamor to send these cases back to the courts.

The one defense of our malpractice system is that it has civilized the passions that arise when a doctor has done a devastating wrong. It may not be a rational system, but it does give people with the most heartbreaking injuries a means to fight. Every once in a while, it extracts enough money from a doctor to provide not just compensation but the satisfaction of a resounding punishment, fair or not. And although it does nothing for most plaintiffs, people whose loved ones have suffered complications do not then riot in hospital hallways, as clans have done in some countries.

Every few years in the United States, there is a flurry of efforts to "reform" our malpractice system. More than half of American states have enacted caps on the amount of money that juries can award someone who has been injured by a doctor. But no such ceiling will make the system fairer or less
frustrating for either doctors or patients. It simply puts an arbitrary limit on payments so that doctors' insurance premiums might, at least temporarily, be more affordable.

Cap or no cap, I will pay more than half a million dollars in premiums in the next ten years. I would much rather see that money placed in a fund for my patients who suffer complications from my care, even if the fund cannot be as generous as we'd like it to be. There's no real chance of this happening right now, though. For the moment, we must make do with what we have.

I
N COURTROOM 7A
of the Edward J. Sullivan Courthouse in Cambridge, after seven years of litigation, more than twenty thousand dollars in payments to medical experts, the procurement of bailiffs, court reporters, a judge, and $250-an-hour defense attorneys, time on an overloaded court schedule, and the commandeered lives of fourteen jurors for almost two weeks, Barry Lang stood behind a lectern to make his closing argument on behalf of the estate of Barbara Stanley. For the first time during the trial, Lang stopped his constant pacing. He spoke slowly and plainly. The story he told seemed lucid and coherent. In that fateful telephone conversation, he argued, Reed failed to offer Stanley the option of a more radical skin excision that might have saved her life. "Dr. Reed is not a criminal," Lang told the jury. "But he was negligent, and his negligence was a key factor in causing Barbara Stanley's death."

Lang, however, did not have an open-and-shut case. As Reed's lawyer argued to the jury in his closing, Reed had been
faced with a difficult medical problem: pathologists who contradicted each other about whether the first biopsy showed skin cancer, a second biopsy that failed to settle the issue, and a distrusting patient who was angry with him for doing too much in the first place. It was far from certain--then or in hindsight--that doing a more radical excision would have helped. Under the microscope, the margins of the tissue Reed had excised around Stanley's tumor were clear of disease. His experts had therefore testified that the cancer had likely already spread and that taking yet more tissue would not have changed that. Furthermore, Reed steadfastly insisted that he had offered Stanley the option of a more radical excision from the beginning.

When the lawyers finished their closings, Judge Kenneth Fishman gave the jury its instructions. Stanley's son, Ernie Browe, sat in the front row of the gallery on one side, and Kenneth Reed sat a row back on the other. Both looked drained. By the time the judge finished, it was late in the afternoon, and to Browe and Reed's disappointment, he dismissed everyone for the day. Both had expected to know the outcome by the day's end.

The next morning, the jury finally began its deliberations. Just before noon, the court officer announced that a verdict had been reached: Dr. Kenneth Reed was not negligent in his care of Barbara Stanley. Stanley's son slumped in his seat, looked down at the floor, and did not move for a long while. Barry Lang promptly stood up to put away his papers. "It was a tough case," he said. Reed was not there to hear the verdict. He had been in his office all morning, seeing patients.