Saturday, November 11, 2006

Losing My Virginity; Part Two


I realized I was entering into a process the rules of which were entirely separate from normal human interaction when it hit me that news of the lawsuit was in the newspaper before anyone had had the decency to contact me. What kind of people act like that? Civilized behavior, respectfulness -- in short, all the ways in which you'd think nice people would behave -- are as out of place in the medical malpractice arena as are gardenias in a cesspool. I realize that by definition it's an adversarial process. But why must it be completely devoid of decency, let alone ethical behavior? Sure: I'm an aggrieved doctor. How could I possibly see with a clear head? Well, I think I can. And what I see is a system where anything goes, and the people pulling the levers not only feel free to cross any line, it simply doesn't occur to them that there could be any other way to do business. Maybe I just encountered the worst of the lot; I hope so. The guys I dealt with seemed to be closer to reptilian than human, and they seemed perfectly happy to occupy that stratum. Loved it, I'd say. And whereas attorneys are the lizard-pimps, they have their snake-whores in the form of a pack of willing sleazy doctors. Am I making myself clear?

One part of the saga (and only one) was actually civilized and smart, and happened as scheduled. The Oregon Board of Medical Examiners, in conjunction with the insurance company, had a policy of convening a hearing for cases involving a certain level of money. In this case, a panel of bright and independent surgeons reviewed the case in detail, and called upon me to appear before them to explain and defend myself. Their purpose was to make a recommendation to the insurer either to settle or fight, based on their assessment of me and my care. It happened early in the timeline, on the day and time scheduled (by a long shot, nothing else did!); I got a thorough grilling after a comprehensive look at the records. Their conclusion was that I'd acted properly and the case should be defended vigorously. After the session, for a very brief time I felt pretty good.

Early in the process I became aware that I was being sued for about twice the amount of my coverage. In addition to scaring me to death, raising the specter of total financial ruin and life-long indebtedness, and causing me to awaken in a cold sweat nightly, this led to the suggestion by my insurance company that it might be in my interest to engage my own attorney. (They provide one, of course; I don't fully understand the recommendation, but I gather it's standard stuff. Among other things, it has the effect of raising the tension exponentially, which is, I'm sure, exactly what the plaintiff's attorney has in mind.) My dad told me it made sense, and hooked me up with a guy. Fees, of course, were not covered by my insurance. It was at this point that I got an inkling that I was being played like a harp, everyone enjoying the music but me.

Reams of paperwork began to arrive. Among the first was the report from a physician hired by the plaintiff to review the records. He claimed to be a surgeon, somewhere in California. I've since become aware that there are virtual clearing-houses for such scumbags, advertised in legal journals: "Need a surgeon, a neurologist, a pediatrician to say whatever you want? We got 'em. Give us a call." I read what this person had written, and was literally sick to my stomach. "In all my years of case reviews," this professional testifier said, "I've never seen such wanton disregard for standards of care..." Among his more laughable (if it had been funny) statements was "the large bowel is not really larger than the small bowel." Most astounding was this: "The surgeon describes his operation as ileocolostomy (in the previous post, recall, I told you to remember that term), yet he sewed the ends together. If he doesn't even know what he did, how can we believe anything else he says?" This supposed surgeon, this idiot-for-hire, doesn't know surgical terminology; yet he's the reason the suit goes forward: with an "expert" certifying that malpractice had occurred, the judge can't toss the case out. It has to be adjudicated in some way. That's the sick complicity of plaintiff's attorneys and these docs who make a living as testifiers. We had engaged several legitimate and credible experts, including the chief of surgery at the University of Oregon to defend my care. They had only this guy. But it was enough. The case had legs.

I'll say this: the attorney provided me by the insurance company was a great guy, and it was he with whom I mostly interacted. I never actually met the one I "hired" for myself; we exchanged a few phone calls and letters. The one from the insurer was an experienced and young guy, and he always tried to make me feel ok. When I'd pointed out to him the many ways in which the plaintiff's expert had his head up his ass, he just said he could hardly wait to get him on the witness stand.

My next lesson in the way of the world was when the records arrived from the referring family doc. The last entry in his notes from the time of transfer was "Situation critical. Urgent surgery advised." WTF? It had been a couple of years, but I knew I'd remember such a statement had it been in the notes I received with the patient. Poor Doctor FP: he must not have remembered that he'd sent copies of his notes with the patient at the time of transfer and that they'd be included in the hospital records. Clear as day, the son of a bitch had altered his notes later, to cover his ass once again. What did he care? I wasn't in his area any more. If I had been, if I'd ever seen him again, I might have tried to punch him in the nose (he was an old guy: I think I could have taken him.) But a former colleague trying to slit my throat: that wasn't the half of it.

Something of which I'd not been aware until the suit was that during the wee hours, the nurse taking care of my patient had had trouble measuring his blood pressure, and had to ask for help. Another nurse had brought in a doppler apparatus to facilitate the measurement, and eventually they'd gotten a number; a low one. For some reason, they did not see fit to call me. In fact -- it was later revealed -- the man's mom had spent the night at his bedside and when the blood pressure problem had arisen, she'd asked the nurse to call me. She didn't, saying she didn't want to disturb the head nurse (at the time, calls to doctors after midnight had to be cleared through the nursing supervisor.) Amazingly enough -- and unknown to the nurses at the time -- the mom had kept a detailed diary during her watch, including her rejected request. That became important later. Particularly (this would make a ridiculously unbelievable novel) because the nurse taking care of my patient had died of cancer a couple of years later, before the lawsuit was filed.

The hospital was also being sued, and they had their own lawyer. So now there were four attorneys with their meters running, all playing their roles as if it made some sort of sense. (I have no doubt that had it been possible for the me and the man's family and the insurance companies been able to sit together in a room like people who wanted fairness, had we talked directly without fear of consequences and without lawyers, we'd have come to a proper result years sooner with the money going where it was needed, instead of being spread among the attorneys.) The hospital counsel, it turns out, was the ultimate sleaze bag. Somewhere along the line he came out from under his rock long enough to interview a bunch of nurses:

Dear departed nursie was a good nurse, wasn't she?
Oh yes, she was.
Wasn't she the sort who'd call a doctor about low blood pressure?
Well, sure, I guess she must have been.
Do you think it's possible she called Dr Schwab and just forgot to write it down?
Gee, I guess it is.
Likely? Do you think it likely she called him?
I suppose so....

Copies of the depositions were sent to me, and that's pretty close to verbatim, taking into account the passage of time, the dulling of memory, and the festering wound. And the hate; oh yeah, the hate. It took me from scared to death, to mad as hell. Don't know if that's a good thing; it didn't help me sleep any better, but it made me ready to face the prospect of testifying. I wanted to see that asshole myself, and show the world what kind of scum he was. I hoped that -- Perry Masonically -- my attorney could spring the diary on him, without prior warning, in court. Maybe have it brought in by an efficient and attractive personal assistant, entered into evidence to the murmurs of the gallery. On the other hand -- so my attorney told me -- the prospect of the two defendants (me, and the hospital) at each other's throats would be a delight for the plaintiffs. And with what little I understand about the legal rules of warfare, I'd guess that this "testimony" would have been objected to and rejected.

So the players are lined up and doing their worst: a lying doctor and an incompetent one; two attorneys on the other side, one happily hiring a whore and the other suborning perjury (so it seemed to me) from a group of innocent nurses; and me, with my two lawyers, watching helplessly as people who don't know me worked gleefully to ruin my reputation, my self-respect, my financial future, caring nothing whatever about facts or fairness, cruising above it all in their slipstream of slime, thinking that's the way it should be because that's just the way it is. How could any good come of it...?

15 comments:

Bongi said...

sometimes life seems to be a battle not to lose faith in humanity. there are so many opportunities to do just that. i think this would have really tested my resolve to maintain some vestige of hope for our species. i'm glad this hasn't happened to me....yet.

red rabbit said...

Gahhh!!!

*pause*

Nope, still panicking... Gah!!!

Anonymous said...

Your descriptive powers are equal to the task once again. Being sued is a horrible experience. The sleepless nights, long hours in the OR, days in the office post-call are all acceptable if your patient gets better and thanks you. When the result of careful and competent care is a complication and years of painful legal abuse, it is hard not to question, "Why am I doing this?"

Anonymous said...

July 1st I leave this land of Lawyer-raped healthcare system and start working in Canada...Less money, but damn worth every less cent!!

Cathy said...

OMG, your stopping here? This is as bad as when Charity Doc. does this.

I'm sorry you had to go through this.

Palmdoc said...

Thank you for sharing. I eagerly await part III.....

Anonymous said...

As a patient, I hate lawyers who make good doctors' lives miserable.

scalpel said...

I love your labels at the bottom of these posts.

jb said...

Dr Schwab, you have expressed what we all go through in a superb story. As one who has been there, I admire your ability to describe the surgeon's reaction to a baseless lawsuit by a money grubbing lawyer.

For doctors in training who read the comments above and from Part One advising you to avoid surgery altogether or at least avoid practice in the USA, I have another perspective. If you believe that a surgical career is your destiny, do not give up your aspirations. You will regret not doing what you wanted to do for the rest of your life. But, please go into it with your eyes open- do not make yourself low hanging fruit for the lawyers. You will work very hard for your money, and wait a long time to get it. Make certain that you protect it. When you finish your training, you will be in demand, courted by headhunters who will promise you the moon. Before you accept a position anywhere, talk to an attorney who can advise you on asset protection. It is easier to do in some states than others, and this should be a factor in determining where you practice. Spending a few hundred dollars for this early in your career will ensure that you never have to hear a lawyer tell you that "This is a 12 million dollar case and you only have a million in coverage." If the million in coverage is all they can go for (because your other assets are not available), they will not try as hard as they would if you had 4 million in a brokerage account in your name, unprotected. You may hear that attorneys seldom go for more that the doctor's insurance coverage, but seldom isn't never and it's becoming more common to go for more if it's available.

Make sure that you talk to a knowledgable lawyer, not just reading an article in Medical Economics magazine. Asset protection is very state specific. Do it early in your career, and it will be one thing less that you will have to worry about. If all else is equal, avoid practice in a state with "joint and several liability."

Anonymous said...

I am a surgeon still practicing in Oregon. I have also been sued in this state. Your description of the process is eloquent and accurate. Reading it, I feel intense emotions of anger, outrage, and sadness. You descibe exactly the way I feel as part of the process. In particular, I share your intense hatred and contempt for those who pose as experts, and for those who lie to protect themselves.

One point about your story that I didn't understand was how you became aware of the plaintiff's "expert" testimony before trial. As you may know, Oregon law allows "ambush testimony." That is to say, the plaintiff does not have to reveal who their experts are until trial. Defense is not permitted to depose these experts to find out what they might say at trial. Its just one of those fun facts about Oregon law. Usually you are left guessing if they have experts, and who they are and what they'll say. If you know how you came to know about this asshole's opinions during discovery, I'd love to know how it happened. As frustrating as it is to read his lies, you are better off. Maybe revealing his report was a tactic to try to scare you into settling. If so, it clearly backfired. His outrageous lies have only strenghthened your resolve to fight.

Keep your chin up. Sorry about the anonymous post (we may even know each other). I'll be watching and rooting for you.

Sid Schwab said...

anonymous: this occurred around 25 years ago. It may be that the law to which you refer was not extant at that time. In any case, I recall seeing the "expert's" review very early in the process; probably forwarded to me by my insurer's attorney. This my first and most egregious experience, and as I said in my first post I was served after having moved to Washington State. I was in Oregon for about five years, have been here about 25...

kïrstin said...

im so sorry this happned to some one who feels so intimate towards his patients, as you described you feel when doing surgery. methinks it is a parley of lawyers, surely.

how did you recover? or is that the next post to come?

it seems betrayal can come in the most unexpected and insidious manners at times when we are more suseptible than we think.

enrico said...

Anonymous 1:27:
What the hell?!!? Does Oregon procedure for discovery allow "ambush evidence" as well?! Yikes!

I posted a literary comment in the last post when it seemed like it was more of a "deflowering" of innocence. This reads more like a prison gang rape. Screw Blake--you need "Songs of Innocence, Songs of Sodomy"

I have always reviled so-called "expert" witnesses, just as much as the whore doctors that are for-hire for the insurance companies to not pay justifiable claims on a medico-legal technicality.

My dad's a lawyer (estate planning, no trial shite anymore) and gets as nauseous as anyone over the bottom-feeders in the profession. Damn, I'm still agitated having read this...

Demented M said...

I'm sorry. This sounds horrible.

But it explains why they didn't want to part with my medical records when I had emergency surgery for suspected appendicitis that was really an antibiotic resistant kidney infection.

I never wanted to sue, I'd just been very sick by myself with no family to tell me what had happened and I just wanted my records so I knew what had happened to me (plus to add to my doctor's records since I was out of county/out of network). You would've thought I was trying to kidnap their first born for a voodoo ritual.

But now I understand their motivation.

M

Anonymous said...

"What kind of people act like that? Civilized behavior, respectfulness -- in short, all the ways in which you'd think nice people would behave -- are as out of place in the medical malpractice arena as are gardenias in a cesspool."

It is unlikely that the lawyer put your case in the paper. Many newspapers have people who watch the court filings for news. There is a local paper in my area that reads the bar newsletter and writes stories every time a lawyer gets a slap on the wrist from the bar.

Your anger is likely misplaced and it's amazing how much vitriol stems from it given that you didn't really think it out.

"Among other things, it has the effect of raising the tension exponentially, which is, I'm sure, exactly what the plaintiff's attorney has in mind.) "

Your insurance company advises you to get your own attorney because if the damages are in excess of your policy limits, and they get a policy limits offer and don't settle and you subsequently get a verdict for more, you potentially have a bad faith case against them. It's the inherent conflict in insurance defense. It has nothing to do with the plaintiff's lawyer, but rather your insurance contract.

"Clear as day, the son of a bitch had altered his notes later, to cover his ass once again. What did he care? I wasn't in his area any more. If I had been, if I'd ever seen him again, I might have tried to punch him in the nose (he was an old guy: I think I could have taken him.) But a former colleague trying to slit my throat: that wasn't the half of it. "

And you wonder why people have to request medical records? Why they sue to get the answers that physicians won't give them? Right there is a prime example. You say that doctor is lying, but how does the patient know? Why is it bad for his lawyer to rely on that doctor's opinion as opposed to yours? He's never met either of you, and neither of you will even speak to him. The patient has likely been shut out as everyone clams up everytime there is a bad outcome immediately, despite the fact that multiple, multiple studies show that communication, or the lack thereof, is what leads people to go to lawyers most often.

"I have no doubt that had it been possible for the me and the man's family and the insurance companies been able to sit together in a room like people who wanted fairness, had we talked directly without fear of consequences and without lawyers, we'd have come to a proper result years sooner with the money going where it was needed, instead of being spread among the attorneys.) "

You clearly know little of insurance companies if you think this is the case. Remember, the plaintiff's attorney is only getting paid if he wins. He is not getting paid by the hour most likely. He has no incentive to delay a resolution. Who does have incentive? The insurer, because they are still enjoying the benefits of the money.