A baseless malpractice suit still cost me

February 1, 2008

Even after being dismissed from a shotgun suit, the author continued to pay the price. 2007 DOCTORS' WRITING CONTEST - HONORABLE MENTION

From 1995 to 2000, I worked as a staff gastroenterologist and associate chief of the division of gastroenterology at Maimonides Medical Center, in Brooklyn, NY.

During this period, I performed thousands of colonoscopies, including one on an elderly Russian woman who presented with rectal bleeding and moderately severe anemia. After admitting the woman and transfusing her with two units of packed erythrocytes, I performed the test on the next day. It revealed a moderately large multinodular mass in her sigmoid colon that was partly obstructing the colonic lumen. There were no other colonic lesions.

The appearance of the patient's colonic lesion indicated a malignancy, which numerous biopsies of the mass confirmed. An abdominal CT scan revealed no evidence at that time of spread of the cancer to the liver. Three days later, one of our gastrointestinal surgeons performed a segmental colon resection. Subsequent pathologic examinations of the resected mass and adjacent sigmoid colon revealed the complete picture: The mass had penetrated deeply into the colonic wall, although without entering the serosa. The resected lymph nodes did not reveal any cancer spread.

I learn about the case against me

For the next two years, this was all I knew about the case. The law firm representing me communicated with me only once during this period, by a form letter. My calls to the firm in search of additional details proved fruitless, as did my efforts to review the hospital's records of the encounter. These records, I was told, were in the firm's possession. Of course, I could have gone to the attorney's office to review them, but this would have meant arranging hospital coverage, hopping on a subway, and probably losing a day's income in the process.

Finally, my attorney contacted me. He was young, aggressive, and obviously very sharp. Breaking his two-year silence, he filled me in on the missing details of my case.

Two years before the plaintiff presented to Maimonides, she'd been seen by an office-based physician, an elderly neurologist who now practiced, not as a specialist, but as a general practitioner. The patient had complained of repeated bouts of bright red blood during bowel movements, the very thing that would later bring her to us. The doctor had performed a rectal exam and assured her that the bleeding was the result of hemorrhoids. During several subsequent office visits over the next year, he reiterated this diagnosis, despite evidence of mild anemia. Never once, according to his office notes, did he refer her for either a barium enema or colonoscopy.

One year before the patient presented to Maimonides, she'd been admitted to a hospital-not Maimonides-with similar symptoms. The admitting physician referred her to a gastroenterologist, who recommended a colonoscopy. She refused, however, and was discharged.

One year after she underwent the colonoscopy and the colon cancer surgery at Maimonides, the patient was diagnosed with unresectable hepatic metastases, which apparently prompted her lawsuit against us and the neurologist-turned-GP.

Hassles after my case is dismissed

Even after reviewing the details of the case, I had only a vague memory of the plaintiff. After all, since testing her, I had performed more than 1,500 colonoscopies. While I regretted that her initial treatment had been so badly mismanaged by the elderly physician, I was relieved to learn that my own actions had been faultless. And I was greatly relieved to learn that my attorney had negotiated a deal with the other side to dismiss me from the lawsuit, with the proviso that I agree to be deposed.

At the deposition, my attorney masterfully reiterated the basis of my testimony. Since I had minimal independent recollection of the facts, I would restrict my testimony to what appeared in the medical record. And, except for my own medical actions, I wouldn't testify at this point as a medical expert. If the plaintiff's side wanted such testimony from me at a later point, I'd happily oblige, providing I was paid the appropriate professional fees.