I wish I'd fought my malpractice suit

January 10, 2000

When he settled the case, this doctor had no idea that it would leave a permanent stain on his license--and his reputation.

I wish I'd fought my malpractice suit

When he settled the case, this doctor had no idea thatit would leave a permanent stain on his license—and his reputation.

By Michael A. Polacek, MD
General Surgeon / Wellington, FL

After 32 years of enjoying medicine's golden age as a general surgeonin Milwaukee, I decided to quit while I was ahead. I thought I could escapethe profession's modern ills by accepting a position as chief of surgeryat a small Veterans Administration hospital in rural Missouri.

But there's no escape. A few months after taking the position, my malpracticeinsurer notified me that a claim had been filed against me—just as thestatute of limitations was about to expire—by a patient I'd treated threeyears earlier.

I had performed hand surgery on the patient; that was my subspecialty.Milwaukee's heavy industrial base resulted in frequent referrals for acutehand injuries, and I participated in more than 5,000 hand cases over mycareer. Still, I remembered this case.

The hospital had called me in to examine a 19-year-old factory worker.A cabinet had fallen on his arm, resulting in a deep laceration of the medial-dorsalaspect of the upper right forearm involving the muscle bellies of the extensortendons to the fourth and fifth fingers of the hand and the extensor carpiulnaris.

Using a local anesthetic with preoperative parenteral antibiotics, Irepaired the lacerated muscles and closed the fascia. Then I applied a heavyKerlix dressing. When the metal splint ordered from central supply didn'tfit adequately because of the bulky dressing, I sent it back. This actionturned out to be crucial to the malpractice suit.

I walked across the hall to the orthopedic treatment room and took several4-inch plaster strips from a cast cart. I molded them to the injured forearmfrom the elbow to the dorsum of the hand. Then I reinforced the dressingswith an elastic bandage and immobilized the arm in a full muslin sling.Finally, I prescribed oral antibiotics and analgesics and discharged thepatient.

When he returned 10 days later, I removed the plaster splint and dressings.The patient had 80 percent measured passive extension of the injured fourthand fifth digits. I reapplied the dressing and sling and instructed thepatient to return in one week for follow-up, when he'd be scheduled to beginphysical therapy.

But the patient didn't show up for his appointment. When my office contactedhim, he said that he'd consulted an attorney and was being referred to anotherphysician. Three years later, when he filed suit, I learned from my malpracticecarrier that the patient had undergone two other procedures; his final disabilitywas 60 percent return of extensor function.

I'd been sued only once before in my career, and that case had been dismissedquickly. This time, things were different. My insurance agent, whom I'dknown for 30 years, and the attorney assigned by my carrier, for whom I'dtestified in numerous cases as a defense expert witness, both suggestedthat I authorize them to settle the case. I strenuously objected that therehad been no malpractice.

They countered that because I'd returned the metal splint to centralsupply, there was no charge for a splint in the hospital records. AlthoughI'd improvised a plaster splint, I hadn't documented it. My operative reportstated only that the arm was immobilized in a sling. Therefore, defendingthe case could prove difficult, the agent and attorney told me.

I still resisted, but went along with their decision to settle, sinceI would be retiring from the VA job in two or three years and didn't wantto subject myself to the 500 miles I'd have to travel for depositions andthe eventual trial. "You don't need this hassle in the twilight ofyour career," the lawyer said. The patient accepted our offer of $165,000.

About a year later, I received a letter from the National PractitionerData Bank, asking whether I'd like to add any comment to my listing in theregistry. The summary of the malpractice claim stated that I had failedto apply a splint. I added the word "allegedly" and noted thatthe patient left my office with 80 percent of his function salvaged.

In 1996, I retired from the VA job and the active practice of surgery.I voluntarily gave up my Arizona and Florida medical licenses. I kept myWisconsin license, though, since I planned to do some consulting and medicalwriting, serve on community and hospital committees, and perhaps do somemissionary work.

Then last year, from out of the blue, came a letter from the WisconsinDepartment of Regulation & Licensing. It was reviewing my license becauseof the data bank's record. Eventually, the department gave me this choice:I could give up my license, receive a limited license with no hand surgeryprivileges, or take 60 hours of postgraduate hand surgery education andseek to be reinstated. If I wished to contest this decision, I would berequired to hire an attorney and to pay the expenses of the reconvened boardmeeting.

How ridiculous! Especially since I felt I'd done nothing wrong, exceptfor not being more thorough in my documentation. But by this time, I'd beenretired for two years. Litigation seemed costly and superfluous. So I acceptedthe option of a "limited" license, shook my head, and forgot aboutit.

About two months later, the department asked me to forward my currentWisconsin license to have a "limited" stamp affixed. I inquiredwhether the stamp would carry an explanation that it applied to hand surgeryonly. The answer was No. If the license was challenged, it would be my responsibilityto provide the necessary explanation and documents.

So presumably, if I went to a drugstore and wanted to write a prescription,I'd have to explain myself and document my standing to any clerk who questionedme. I couldn't accept that. I told the state that I'd take the 60 hoursof postgraduate education to have the limited status lifted, even thoughI had no intention of performing any surgery. Sorry; too late, the statesaid. I'd have to request a formal hearing.

The final blow came three weeks later when I received another letterfrom the friendly folks at the data bank, informing me that I was now listedin their registry as having a "license probation: unprofessional conduct."

I immediately contacted the Wisconsin board to see whether some mistakehad been made. How could accepting a limited license not to do hand surgeryturn into a permanent stain of unprofessional conduct? The state repliedthat the data bank didn't have a separate category for limited licenses,and the only code that came close was the one for unprofessional conduct.

Yet when I received a copy of adverse action classification codes fromthe data bank, there was clearly a listing for an action taken for "otherreason—not classified." But the Wisconsin board wouldn't budge. Soafter 32 years of practicing without a blemish, I'm now officially classifiedin the same category as drug abusers, thieves, and incompetents.

In hindsight, what would I have done differently? I'd certainly havespent more time documenting my care of patients. And I would have arguedmore vigorously for taking the suit to trial.

I'm left wondering how the medical profession, supposedly composed ofhighly intelligent and well-motivated individuals, has allowed itself tobe completely engulfed in such a mindless bureaucratic nightmare.

Michael Polacek. I wish I’d fought my malpractice suit.

Medical Economics