I look at patients differently now

January 6, 2006

An accusation of "elder abuse" took the author by surprise.

The morning had been going well until my receptionist handed me a thick envelope that had been delivered by registered mail. A quick look at the return address sent a chill down my spine: The correspondence was from a lawyer. It was a notice of intent to sue. I shoved the papers into a drawer, composed myself, and went back to seeing patients.

I had started a solo primary care practice two years earlier. It was hard work, much harder than I had expected, but it was rewarding and satisfying. While trying to build my practice, I saw patients in nursing homes and hospitals. Many physicians avoid nursing home work because of the time commitment, low reimbursement, and liability risks, but I enjoyed it. I felt a kinship with the residents, most of whom were lonely and depressed. Faces would light up when patients spotted me entering their facility.

During my lunch break, I read the material from the lawyer more carefully. The plaintiff was the father of one of my nursing home patients, an 18-year-old who had run away from home at 16 and crashed a car into a wall, leaving him a quadriplegic. After spending several months at a rehabilitation hospital, John (not his real name) was placed in a nursing home.

The lawyer's letter indicated that I was being sued for negligence and "elder abuse," based on an incident that happened shortly after John had been admitted. One night, he had fallen off his bed. The suit, which was filed after John's father had moved him to another nursing home, alleged that John's fall and subsequent "long-term problems" were the result of a broken bedrail that hadn't been fixed despite the father's repeated complaints to me and the nursing home staff.

The next morning, after contacting my malpractice carrier, I visited the nursing home and reviewed John's chart. I was relieved to find that everything was as I had remembered: After being informed about the fall, I ordered a thorough check, which hadn't shown any visible injuries. I then ordered X-rays to be taken in the morning. The X-rays were negative for fractures and dislocations, and John appeared fine on my next visit. There was no mention in the chart of his father's complaints regarding a broken bedrail.

I was sure this was a meritless lawsuit that would be quickly dismissed. To my dismay, however, my lawyer said that although I had apparently done nothing wrong, allegations of abuse and neglect in nursing homes were taken very seriously, and he wasn't certain that I would prevail if the case went to trial. He also pointed out that, in California, malpractice caps don't apply to elder abuse cases, and juries tended to favor "poor patients" over "rich doctors and nursing home owners."

I was shocked. After working 12-hour days, through weekends and holidays, always trying to do my best for my patients, I'd been accused of negligence without any basis-and yet I might be found culpable! I still felt bad for John, but thinking about his father filled me with bitterness. What kind of parent tries to make money from his child's misfortune? What kind of warped system could allow something this unjust to happen? I also felt angry with myself for not seeing the red flags-the long arguments that the father had had with the nurses, his constant criticism, and the fact that John had been shuttled from one nursing home to another.

The suit was ultimately dropped, but not before I had spent considerable time with lawyers and lost countless hours of sleep. The damage to my personal life and self-esteem has been incalculable; the scars may never heal. And, unfortunately, my attitude toward patients has changed. I've become more selective about which nursing home patients I see, and I now view every patient as a potential litigant.

Meritless lawsuits have changed the way we practice medicine in this country. If the current system continues there will be no caring healers anymore, and in the end we'll all lose.