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Don't settle too quickly--I know from experience


Doctors can be harder on themselves than a malpractice jury would be, the author learned.

Malpractice Briefing

Don't settle too quickly—I know from experience


Doctors can be harder on themselves than a malpractice jury would be, the author learned.

By Mark L. Mallek, MD
Gastroenterologist/Nashua, NH

It was a bright fall day in 1995—the kind that brings busloads of tourists to see our beautiful New England foliage.

As I rode the mower over our front lawn, I saw a young woman across the street. She was carrying pamphlets and moving from door to door. Our house was next on her path.

She walked confidently up the driveway, and I turned off the engine and removed my ear plugs.

"I know you, you're Dr. Mallek," she greeted me. "I was on the jury of your malpractice trial."

A flood of bad memories swept over me.

I was on call at home when the telephone rang on a gray February evening in 1990. It was the ER doctor on duty at the local Catholic hospital. A man claiming he was a patient of mine was complaining of a piece of meat stuck in his throat.

His name didn't ring a bell, but additional details from the ER doctor led me to recall him. The man worked in a factory in Nashua, although he lived in a smaller town 12 miles away. I'd last seen him four years earlier when he was an inpatient undergoing alcohol rehabilitation. He'd been complaining of stomach pains, and I was called in as a consulting gastroenterologist. I diagnosed gallstones, and referred him to a surgeon.

His present problem seemed more straightforward. Assuring the ER doctor that I was on my way, I headed to the hospital.

The patient appeared like many others I'd seen with foreign bodies stuck in the throat: He was drooling, uncomfortable, and noticeably anxious. His breathing wasn't labored, however, and he appeared to be in no immediate danger of choking. I examined him, documenting that his heart and lungs seemed normal, and agreed with the ER doctor that the problem was almost certainly the one the patient had described.

We explained the patient's options to him. We could monitor him for a while, watching for the lodged piece of meat to work itself loose and pass down into the stomach. But this was unlikely, I advised him, and doing nothing might be risky. The second and better option was a gastroscopy. If there was something lodged in his throat, chances were good it could be loosened gently and nudged into his stomach with the tip of the endoscope. He would be sedated, I assured him, and the back of his throat would be sprayed to suppress the gag reflex. Like most patients in his situation, he was eager for us to take action.

I called for an endoscopic nurse to assist with the gastroscopy. We prepped the patient and began IV sedation. But no sooner had the endoscope passed the patient's lips when he went into full respiratory arrest and lost consciousness.

Desperately, we tried to resuscitate him. When that didn't work, an anesthesiologist—with much difficulty—intubated him. Still unconscious, the patient was placed on a respirator and wheeled to the ICU.

We were stunned. What in the world had gone wrong? Had the patient's story of a piece of meat lodged in his throat set us off in the wrong direction? Was the real problem a rampant infection of some type that had caused his airway to occlude, thereby suffocating him? Plagued by questions, I expressed my sympathy to the family for the unexpected outcome.

A pulmonologist, called in the next day, confirmed what we all feared: The patient had become brain dead not long after going into respiratory arrest. The pulmonologist laid out the case for ceasing life support, and the family agreed. An autopsy was also discussed, but the family declined.

That was the last I heard of the case—until almost exactly three years later, when I received a letter from attorneys for the family. They'd reviewed the case, the letter said, and found "merit" in pursuing legal action against me, the ER doctor, and the hospital itself. Formal notification of the suit would be sent directly to my attorney, if I chose. A sad chapter of my life, one that had seemed closed, was suddenly an open book.

I notified my malpractice carrier and was assigned an attorney. For the next several months, he and I spent endless hours preparing my defense. We paid particular attention to the patient's chart and the ER record. Was there anything in these documents that would support the other side's claim that our "misdiagnosis" had led to the patient's death?

Our review convinced me that I'd acted appropriately, although there were certainly aspects of the case I'd be called upon to explain. Had my differential diagnosis been sufficiently thorough—or had I too eagerly embraced the ER physician's evaluation? Documentation was another problem. While I'd conducted a fairly detailed exam, the chart indicated only something like "heart normal, lungs clear." Would the plaintiff's attorney seize on this as evidence that due care had not been taken?

During pre-trial hearings, each side called in expert witnesses. Ours was an ENT specialist from Tufts University, who said that under the circumstances, we'd followed the proper protocol. The plaintiff's witness—an emergency medicine physician with lots of trial time under his belt—disagreed. We should have probed further, he said. Each side had locked in its position.

The stalemate continued during the one attempt to work out a pre-trial settlement. With the court-appointed arbitrator present, each side blustered and rattled its sabers. In the end, our offer, admittedly low-balled, was rejected, and the case moved to trial.

I sat in the courtroom accompanied by my attorney, the ER physician and his counsel, and officials and attorneys for the hospital. Also present was an observer from my malpractice carrier, there to assess how well or badly the trial was going.

After opening statements, the other side called in former co-workers of the deceased. They described him as a fine fellow who would be missed sorely. His widow also took the stand, describing their close relationship and the retirement plans they'd made that would never be fulfilled.

Our side had learned during pre-trial discovery that the couple's relationship had actually been so strained and uninvolved that the widow hadn't known of her husband's inpatient treatment for alcoholism. But the defense team decided against raising this at the trial, for fear of offending jurors.

When it was my turn to take the stand, I did my best not to come across as cocky before the jury.

As it turned out, I didn't have much time to consider how I'd done. During a recess, the insurer's representative talked with the defense team. "Hey, look," he said, "I don't like the way this case is going. From where I sit, the jury seems sympathetic to the widow. I think we should make an offer—some nice round sum like 600K."

My attorney turned to me. "Do you agree with the settlement?" he asked. "After all, it's your suit."

I was convinced more than ever that I'd acted appropriately. Still, it was also a relief to think the trial might soon be over. And besides, although $600,000 was a lot of money, I'd heard of jury awards that were multiples of that amount. If the experts around me feel it's best to cut our losses, I thought, who am I to argue?

The plaintiff rejected our initial offer, but accepted a second one for $850,000. My part of the settlement would be $425,000. Only the hospital representatives refused to participate. So the hospital's part of the case—which it subsequently won—would continue, the judge instructed the jury.

Now, months later, a member of that jury stood in my yard, squinting into the fall sun. From the look of the pamphlets she was handing out, she was a candidate in the school board election. But she preferred to talk about my trial.

"You know, the other jurors and I were all surprised when you agreed to settle," she said. "We all thought your case was right on."

Ouch, I said to myself, what a way to lose $425,000.

Yet the more I pondered the juror's words, the stronger their message came home: If you genuinely feel that you've acted reasonably under the circumstances, you probably have—and more often than not, others will see it that way, too.

Acting reasonably doesn't always lead to perfect outcomes, of course, as my own case sadly shows. But even when things go terribly wrong, stick to your guns. Your belief in yourself will help make believers out of others.


Carol Pincus, ed. Mark Mallek. Don't settle too quickly--I know from experience.

Medical Economics


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