My very weird lawsuit

I wasn't named in the malpractice suit, but I wasn't off the hook.

By Gary A. Fletcher, MD
Anesthesiologist/Medford, OR

Doctors being sued? I thought I'd heard it all. You probably think you have, too. Well, listen to this!

For some 30 years, I've been an anesthesiologist in a small Northwestern town. Early in 1998, an athletic 19-year-old was scheduled for an elective video thoracotomy to staple blebs so he could take up scuba diving. His history was negative except for two pneumothoraces.

On the day of the procedure, the surgeon decided that a pleural poudrage with talcum powder would benefit the patient. I felt that this would increase postoperative pain, so I recommended a narcotic epidural. The surgeon agreed.

The PAR discussion, epidural, and surgery were uneventful. The patient was alert in the recovery room and was soon transferred to the general surgery ward for post-op care. About eight hours later, the floor nurse called to request additional medication for nausea caused by the epidural narcotics.

The phone rang again at 4 a.m. The patient was unresponsive with an oxygen saturation of 34 percent, the nurse reported. When I arrived minutes later, oxygen and naloxone had been administered, but the patient was rigid and hyperventilating with an O₂ saturation in the 90s. He would remain unconscious for five months.

Wrestling the legal system, one move at a time

About six months after the surgery, the patient's family filed suit against the hospital. I wasn't named as a defendant, but my insurance carrier made it clear that I could be added at any time.

Then the hostile depositions began. At one point, the hospital's medical director and attorney threatened to have my hospital privileges withdrawn. Always in my mind were the patient—who had suffered permanent brain damage—and his family. I was tortured by this—the worst result of my medical career.

Ultimately, a multimillion-dollar settlement was reached out of court. I was relieved that at least the family would have enough money to care for their son. (Although some of his capabilities have returned—he can converse and feed himself—he cannot live independently.) At the same time, I was comforted to know that my care had been reviewed by experts on both sides and hadn't been faulted.

Then, the second bite!

About a year after the settlement, my insurance carrier's attorney told me I was being sued and that papers were being served in his office to spare me the embarrassment of having papers served in surgery. How was this possible? The case was settled, wasn't it?

Well, this wasn't a malpractice suit. It was a civil suit—for five times the amount of my malpractice coverage—filed in federal court by the hospital's insurance company to recoup the entire amount of their out-of-court settlement.

It all started again: depositions, meetings with lawyers, and almost daily mail chronicling the case. I developed hypertension and experienced frequent PVCs. One night I awoke with an anxiety attack—hyperventilating, sweating, heart pounding. I was sure I was having a coronary. I began filing the mail unopened. My insurance company sent me to a litigation "retreat," where a psychiatrist, attorney, and litigation consultant told participants how to cope with the stress of being sued and how to weather the legal process.*

At the retreat lunch, I shared the circumstances of my case with other participants. None had ever heard of such a suit. As far as anyone knew, mine was the first of its type in Oregon.

Looking for an exit from the maze

As my case moved forward, I found that I could count on the hospital's medical staff but not on its executives. Despite pleas from my colleagues, the hospital administrator refused to intervene on my behalf. "Sorry," he said, "but this insurance company saves us millions of dollars and is vital to our survival." Months later, that symbiotic relationship ended when the insurer withdrew from the malpractice market.

Finally, as befits such an unusual lawsuit, a surprising twist led to the denouement.

At the start of this suit, my "team" had requested that the district court judge make a summary judgment as to whether I was covered by the hospital's insurance carrier for certain orders and protocols regarding patients receiving narcotic epidurals. I had been asked this question more than once in deposition, and replied that I didn't think that I was covered. When I had long forgotten this minor point of law, the judge ruled that for some of the suit's allegations I was covered—by the company bringing the suit!

Within weeks of this ruling, the suit was settled out of court for less than 1 percent of the original figure.

During my ordeal, I learned a lot and had old maxims reinforced:

• In any lawsuit, be up-front, honest, and supportive of the injured.

• Accurate and complete records can be your salvation.

• Hire your own attorney and ask whether a settlement within your policy limits is advisable.

• Keep in mind that the hospital where you practice and your own insurance carrier are separate business entities that have their own agendas and may not put your agenda first.

• When attending staff meetings regarding your case, bring an attorney. I went to many of these unaccompanied. Later, I was told that the meetings were protected from discovery although the hospital attorney had been present at every one.

• Writing this has helped me recover from years of frustration and anxiety. I hope it has been a warning for you. While we wait for tort reform, the legal profession has expanded its horizons to unlimited "recovery" suits. Watch out for this second bite.

*See "You've been sued. There's help," Feb. 7, 2003.

 

Gary Fletcher. My very weird lawsuit. Medical Economics May 9, 2003;80:51.