A surgeon's loose talk put me in court

October 24, 2003

Dragged into a malpractice case by a colleague's comment, this doctor finally won the case. But he's still angry.

 

A surgeon's loose talk put me in court

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Dragged into a malpractice case by a colleague's comment, this doctor finally won the case. But he's still angry.

By Meyer B. Hodes, MD
Family Physician/Oceanside, NY

I couldn't believe it when the "summons and complaint" arrived: a family I hadn't seen for several years was suing me for malpractice. Me, several other doctors, two hospitals, and an ED. The charge against me was "failure to diagnose" Hirschsprung's disease.

Brenda Carson (not her real name) had become my patient in 1987, at the age of 7. She had first seen my colleague some time before, with complaints of abdominal pain and chronic constipation. Her mother stated that several specialists, including child psychologists and gastroenterologists, had previously treated Brenda. Among the tests she'd undergone at a large metropolitan hospital was a rectal biopsy, which showed no evidence of Hirschsprung's disease.

My colleague recorded these facts on Brenda's chart, and treated her for apparent gastroenteritis. He later referred her to a local gastroenterologist who prescribed a bland diet and medications for her constipation. When my colleague left our practice, I became Brenda's family physician. At one visit, I found that her colon was distended, and noted that on her chart. At her following visit, the distension had increased, and I sent her to another gastroenterologist. He reviewed her history, and prescribed similar standard medications.

Some years later, when I was away on vacation, Brenda (then a teenager) saw another family physician for abdominal pain. He found a large bowel obstruction and called in a surgeon who admitted her to the local community hospital. There, after a stormy course of treatment, she underwent a colectomy. Upon my return home, I was surprised to learn of Brenda's condition, and when I visited her in the ICU she appeared pleased to see me.

Later, before Brenda went back to the original metropolitan hospital to have the stoma closed, her mother brought her to me first for the necessary medical clearance. I therefore assumed that I was on good terms with the family. That's why I was shocked to receive the notice of their malpractice claim.

Chills and pains, and under medication

I called my insurer immediately and its agents appointed an attorney to represent me. She was everything a defense lawyer should be: calming, reassuring, thorough, analytical, and perceptive.

When the case finally came to trial, I attended as much of it as possible, because it was the first time I'd been sued. I was troubled to find that the plaintiff's attorney was dynamic, articulate, and totally conversant with the case. I was also surprised to learn from the opening statements that Brenda had been forcibly toilet-trained before she was a year old. She and her mother had later spent long periods with child psychiatrists who tried to treat Brenda's psychological trauma and resultant fecal soiling.

When I testified, I was functioning under several challenges: Just before the trial I'd been very ill, with fever, chills, joint pains, anemia, and fatigue, and I was still taking long-term steroids. Then, in my steroid-induced state, I had come down with severe laryngotracheitis, so my voice in court was almost inaudible, and I coughed throughout my testimony. On top of all my physical woes, my daughter's wedding was scheduled for mid-way through the trial, which added to my stress.

The plaintiff's attorney belittled my brief notes in the chart, and asked me to explain them as well as those of the other attending physicians. I took the opportunity to expound on them, addressing the jurors as though they were a patient's family who wanted to know what had happened to their loved one. I was careful to avoid any hint of criticism of the other doctors' treatment.

Later, I listened to the opposing statements from the expert witnesses on both sides, none of whom had ever treated Brenda. I wondered how the jurors would interpret their conflicting testimony.

Brenda's mother's testimony was inconsistent and evasive. At one point, she said that the surgeon who performed the colectomy had told her, in effect, that if I and the other family physician had looked after her daughter better, she would not have needed surgery. When I heard that, I was incensed: He'd had no right to say that.

The jury finally received their instructions, and filed out for deliberation. Here I was, a family physician, having my fate decided by six people with no training in medicine, let alone Hirschsprung's disease.

Absolved at trial, but still troubled

When the jury totally absolved me, I was relieved, but not elated. It was a hollow victory. Why did I win? I'd like to think it was because the case against me had no merit. But maybe the jurors found the plaintiff's attorney too overbearing. Or perhaps they felt sorry for me in my obviously weakened condition. Or maybe they looked at the buxom Brenda (now an adult) sitting in the front row in apparently good health, and realized that her mother was largely to blame for her chronic bowel problems.

I was appreciative that the trial had proven my "innocence." Yet I was troubled by the huge amount of time, effort, and money it took. I was also angry because the entire case might never have come to court if the surgeon hadn't made that incriminating comment about me.

A malpractice trial—even if you're found not liable—is a demoralizing and time-wasting experience, especially if it's triggered by another physician's ill-considered remark. I wonder how often these cases are instigated by our own unguarded comments?

In this litigious era, with rising malpractice premiums and huge awards out of proportion to the alleged damages, we need to be very careful of making critical remarks to our patients about treatment by our colleagues—unless, of course, it is clearly egregious. How often have I overheard doctors tell patients, "Oh, I wouldn't have done that," or "That's an unusual way to treat this condition," or "What did that doctor think he was doing?"

As physicians, we belong to an ancient and honorable profession. We have sworn an oath to be supportive of each other. I'm certainly not suggesting that we cover up the mistakes of others. But we should always remember the admonition, "There, but for the grace of God, go I."

 

Meyer Hodes. A surgeon's loose talk put me in court. Medical Economics Oct. 24, 2003;80:32.