A better way in malpractice cases

July 10, 2011

Medical malpractice cases would be better managed with a mediation system that includes both parties being involved, not just the lawyers.

Sued twice. That's right, twice. And why? For not doing the impossible. First, for not diagnosing Rocky Mountain Spotted Fever (RMSF) when the patient had no history of tick exposure or rash and presented with aching all over, temperature 99°F, and normal white blood count. My assessment was probable viral illness. The patient's condition got worse, and she went to her daughter's physician, who admitted her to the hospital and started her on cephalexin. She developed a rash and was transferred to a larger hospital, where she died 3 days later. Still later, her RMSF IgM titer was reported elevated. I was sued for not diagnosing RMSF and for wrongful death.

What should I have done? Placed all my patients who presented in the warm months with achiness and low-grade fever on doxycycline? Some may answer "yes" because I practice in the southeastern United States and this is a tick-infested area, but this course of action is not what I was taught to do. If the patient developed an adverse drug reaction, I then would be sued for improperly prescribing antibiotics. At least in that case I would agree with the lawsuit and in that respect I would feel better about it.

The second lawsuit involved my not diagnosing a cervical fracture when the radiologist reported there was no cervical fracture. Again, what should I have done? Told the patient I would refer him to a neurosurgeon anyway? The patient wanted to see his local physician and do what he recommended. This seemed reasonable to me. His physician ordered a CT scan of the patient's spine, and again the radiologist read "no cervical fracture," but he did find a lumbar fracture. The patient was referred to a neurosurgeon, who allowed the patient to remove the cervical collar that I had told the patient to keep on at all times as long as his neck was sore. After removing the collar, the patient developed weakness in his left arm, and a repeat CT scan and MRI revealed a cervical fracture. After two surgical procedures involving the cervical spine, the patient died with hemorrhagic complications at the surgical site. I was then sued for not diagnosing a cervical fracture.

LIKE ROBBING A BANK

The two cases ended with monies being given to the families filing the suits because it would have been more costly to continue defending the cases than it would to pay the settlements. I was told these were "economic" decisions.

This seems criminal to me, like robbing a bank. We hear a lot about the medical system needing reforming, changing, and revamping, but it seems to me our legal system needs it. What about wrongful lawyering?

Everybody involved in these cases goes on with their lives as if this is how things should be. Everybody except me. I was devastated by the accusations. In each case, had I done anything differently, I would have done it "wrongfully." I cared for both patients as I have been taught and trained to do.

Still, as a friend of mine once said, "In biblical times, everybody thought sacrificing the sacrificial lamb was an OK thing to do-that is everybody except the lamb." We look back and think, "How archaic," but how many "lambs" have to be sacrificed now before we see how archaic this legal system is? If we are waiting for the lawyers to make the needed changes, that will be a long time coming-think never-because they are all profiting greatly with the present system as well as the people doing the suing. The only ones suffering are the physicians who are being sued.

Medical malpractice cases would be better managed with a mediation system that includes both parties being involved, not just the lawyers. A system is needed whereby both parties are in attendance to present their cases before a mediator, a physician in the same specialty as the defendant, a peer of the plaintiff, and possibly a person trained in ethics-someone who knows right from wrong. This would be so much better than the present settle-out-of-court or go-to-trial legal system we now have in place.