Losing My Virginity; Part Three

The aspect of malpractice suits that lawyers seem congenitally unable to understand is how devastating it is. "Ho hum," says a lawyer who read my first two posts in this series. "Get out the violins." It's as if, because I make my living operating on diseases, I were to say to my patients crying in my office about their cancer diagnoses, "yada, yada, get a life..." That such a thing is devastating is not, from my point of view, a reason for derision. If you make a living suing doctors, fine. It's what you do. But why laugh it off?

From the moment I found out about the suit, I felt branded. It was in the papers. People were saying awful things, in writing. In my mind, there was a visible stain on me, surely evident to every patient I faced. In no small measure, of course, it was because no matter what the facts were, I felt awful about the outcome of the case. "The case." How tidy a term... I'm absolutely certain that if I'd operated six hours earlier the outcome would have been the same -- and so were all the experts and colleagues I consulted afterward. But whenever I remind myself about it -- and this series of posts is a hell of a reminder -- I wish to God I'd operated at midnight. (Nor do I doubt that if I had, there'd be a lawyer/doctor team claiming that by going in before fully rehydrating, I set the stage for the clot to form...)

After the first few months, during which the afore-described papers trickled in (each arriving in a large envelope marked "Personal and Confidential," handed to me with trepidation by my nurse, and having been through the hands [so it seemed to me] of half the employees in the clinic before it got to me), there began a long period of chess-playing, carefully (I'm sure) crafted to provoke the greatest possible anxiety and disruption, aiming to make my life as miserable and uncertain as possible. The better, naturally, to till the soil of capitulation.

Trial dates were announced, my schedule was cleared for that week, and then within a few days of the date, it was canceled and rescheduled. Once again my schedule would be cleared, once again the day would approach, and be canceled once again. It wreaks havoc with a practice, in obvious ways. Lawyers, conceivably, are no more stupid than the rest of us (well, there's a bell-curve); I'm sure it was a game well-played. With each cancellation, there came notification that the amount of money being sought was lowered. Sometime after the prayer (that's the official term for the amount of money in play: "prayer." Hmm.) was lowered to well within the limits of my coverage, I heard from the "personal" attorney I'd hired. He wanted me to request settlement. Hey, wait a damn minute!! Much as the idea of being hammered on a witness stand frightened me, I'd long since gotten to the point of anger-fueled certainty that I'd prevail (well, that's too strong a word: not certainty, but resolution to proceed), and settlement was the last thing on my mind. 

The reason, he told me, was that since I'd originally been sued for more than my coverage, if it were to go to trial and I were to lose, and if the judgment were for more than my coverage, then, having requested settlement, I'd be able to demand full payment by the insurer. Well, I told him, I'm not sure. I don't want to settle this thing. This is about your self-interest, he told me. It's what you should do. He sent me a letter, and, feeling sick at it, I signed and sent it.

More trial dates. Couple of trips to Oregon to meet with the main attorney. "Stick to the facts, don't let him bait you, let me handle it...." sort of stuff. It dragged on for over a year, more setups and cancellations, more envelopes with flashing neon identifiers. Then, a call from the attorney. "I've got great news," he said. Unbelievable, I thought. They tossed it, finally. "We settled," is what he said. Thud. Stunned. Not relieved: pissed. The amount of settlement was paltry, particularly compared to the original "prayer." And given the amount the attorney would carve out, the family would get a pittance. To what end? What had been the point? The point, it's clear, is that everyone made out but me. The system was gamed perfectly: find a case, pay an opinion-for-price "expert," sue for more than the doctor's coverage, play a master baiting game for a year or so, make a few bucks. Pretty much guaranteed. Every lawyer, and that street-walking doctor got paid.

I suppose, after the set-up of the first two posts here, it's a let-down. I got off easy, except for the feeling I'd been played like a fish, by people who made the rules for their own benefit, who have seen to it that they'll get theirs.

And here's the point: there IS such a thing as malpractice. When it happens, the patient is, without question, entitled to compensation. But the system does not distinguish between bad outcomes -- which are inevitable, given that in complex situations there is NO decision we make whereby the result is guaranteed -- and bad care. In my mind, malpractice means sloppy care, decisions made with obvious ignorance of the situation; refusing to respond; failing to follow accepted practice in the evaluation or treatment of a condition; clearly making the wrong surgical move: there are many items on the list. Approaching a difficult situation with well-reasoned choices, conducting the care properly and carefully, yet ending up with a bad result -- whatever that is, it's not malpractice. And there needs to be a distinction. Not just for the doctors' sake; for the patients'. As is, it's an all-or nothing lottery jackpot, with the lawyers -- over the long haul -- the ones most likely to cash in.

People who suffer harm from proper care are, I'd say, usually deserving of or in need of some sort of help. Surely it's possible to design a system in which help can happen. You are offered collision damage coverage when you rent a car; extra flight insurance; title insurance (ok, that last one is a ripoff). Ought it not be imaginable that some sort of parallel coverage to augment health insurance could be designed? Paid for in part, perhaps, by malpractice insurers? Ought it not be conceivable that there'd be a way to track such situations into a non-adversarial process, leaving true malpractice to be dealt with as it should?

I'm not blind. I'd be the seventeenth to say that the era of widespread malpractice litigation has accomplished some good: there are now in place universally (or nearly) controls and committees and processes by which doctors and their product are scrutinized much more effectively than when I first toe-dipped into the pool. That's a good thing. And I'm told most cases are decided in favor of doctors. Whoopee. But I'd say that's just an indicator of how broken is the system: surely when actual malpractice occurs, the odds ought to favor the patient. So if most cases result in verdicts for doctors, to me it means that most cases that go to court aren't actual malpractice. Trial lawyers, I'm sure, will say it's because of the conspiracy among doctors: cover up each other's mistakes. I never saw the contract. I haven't signed on to such a thing. Were I to see an instance of malpractice, I'd say so.

In the thirty-six years since I began surgical training, I've had two more cases in which money changed hands, while doing literally two and a half times as many operations yearly as the national average (national average: 250 [I'm pretty sure]. Me: 700). In one, I'd saved the life of a six-month-old with the right operation at the right time, and ordered the right dose and delivery of narcotic for post-op pain. When the nurse saw redness in the vein after injection, she called the pediatrician instead of me, and the order was changed to a different drug but at the wrong dose. Unaware of the change, when I got a call in the wee hours that the baby seemed painful between doses, I asked how long it had been and was told "three hours." The pediatrician had properly switched drugs, but improperly ordered IV dosing as if it were IM (in the muscle instead of the vein, which needs a higher dose at longer intervals.) Unknowing, I said it could be given hourly. After a couple of doses, the baby stopped breathing.

He was revived quickly, and had no injury; yet I was sued over giving the order, and despite the fact that the insurer's team admitted it was not I that had erred (the hospital had, as well, in not informing me of the change nor of reviewing the dosing) I was asked to "take one for the team," rather than get into a finger-pointing session, since the parents were willing to settle for five grand. I wish I hadn't, because it's on my record, but I did.

The other was a man with an extremely rare anatomic problem with his esophagus, which I fixed. He developed swallowing difficulties later, ultimately seeing another surgeon who was sure I must have screwed something up and reoperated, finding nothing. Around that time the patient was diagnosed with Parkinson's Disease, and neurologists and gastroenterologists who saw him agreed the swallowing disorder was most likely due to Parkinson's. Yet I was sued, and because the man was by now in a wheelchair and miserable from his disease, making a sympathetic witness, and since the original problem had been so unusual that there was no uniform literature on how to address it, the insurer recommended settlement, and that's what happened.

I've never been on a witness stand. Like going to Vietnam -- which I didn't enjoy but which I've always been glad I did because it was the seminal event of my generation -- I sort of wish I'd had the experience. From my brushes with the law, I'm left with an extremely discouraged view of it: patients who are deserving get less than they need from a system designed by and for lawyers, who get plenty, abetted by whoring "doctors" who become professional testifiers because they can't make a living practicing medicine. Good doctors are aggrieved -- to put it mildly -- by a process that as part of the gameplan seeks to destroy them mentally in order to create a result, making no distinction between care well-rendered (which is usually the case) and incompetence.

I simply don't accept that even with trial lawyers having much to lose it's impossible to find a way to help those in need without harassing doctors: patients are doubly screwed, as they fail to get what they often deserve, and as they suffer the effects of doctors bailing out of their careers, or choosing less litigious arenas in which to practice. But I ain't holding my breath for the solution.

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...?

Losing My Virginity; Part One

In all my years of practice, my dad called me at the office only twice. The second was to inform me of a horrible family tragedy. The first -- well, I guess in a small way you could say it was the same.

"I hear you joined the club," he said.
"What?"
I had no idea what he was talking about. I'd recently moved from Oregon and was early in my new practice. I thought maybe he was talking about the local country club -- I'd left my first job in part because I'd not gotten as busy as I'd hoped. I was in a very small clinic, and when I'd suggested they needed to hire more primary care docs (Note to self: this aspect of clinic practice might be fertile ground for future posts), they'd told me if I wasn't busy enough I should join the country club. ("Nice golf swing, doc!! How 'bout taking out my gallbladder?") First problem: not only do I not golf, I'm definitely not the country club type. Second problem: same goes for my wife. Third problem: what an idiotic idea of how a surgeon gets referrals.) So, I thought, maybe my dad had wrongly heard I'd sunk to a new low to shill for work in my new job.

"I hear you joined the club," he repeated. "I read in the paper today you're being sued." I nearly dropped the phone and fell over. It was a local paper in Oregon to which he referred, no longer part of my world. I'd heard not a damn thing about it; didn't know by whom or over what. But it hit me like... well, it hit me like a lawsuit. And it was only the first blow in a series that lasted over a couple of years, wrenching me back and forth, up and down, tearing me apart in every possible way. Robbing my sleep, souring my outlook, breaking my cherry in the most bloody of ways. At the time my dad was Chief Judge of the Oregon Court of Appeals. My brother was (and is) a very big-time lawyer. Neither of them ever understood how or why it was so deeply painful. "Why are you taking it so personally," they'd ask, completely seriously. "It's just the way the system works."

I forget how long it was between the phone call and the time when a county sheriff strode into my office and, in front of the patients in the waiting room, asked my receptionist where I was. "Sorry, doc," he said as he handed me a subpoena. I absolutely do remember how my hands shook as I opened it. "Wanton... willful... malicious... gross negligence...," I read, my heart both racing and sinking (where we now live there are hydroplane races every year. I'm aware it's possible both to race and to sink.)

So now I knew: it was a horrible case, the worst case ever, one which gave me and will always give me nightmares, whether I'd been sued or not. I'd been called one evening by a family doc in a nearby town, asking to transfer a patient he'd been caring for for a couple of days. A man in his forties, he'd been admitted with vomiting, some diarrhea, minimal pain, and treated for presumed gastroenteritis. After a two or three days with no improvement, he was transferred to me late one night. I first saw him after midnight, at which time his vital signs were OK except for a slightly rapid pulse, consistent with his obvious dehydration. His belly was distended but not remarkably tender; lab work not scary other than signs of dehydration; and his Xray looked like an early bowel obstruction. I decided he needed an NG tube (yep, that's the one time when it's really indicated!) and vigorous rehydration, and a recheck in a few hours. When I saw him at six a.m. he hadn't decompressed his belly in any way, and his vital signs were worse (pulse up, blood pressure down.) I called the OR and got him there as fast as possible.

Having had another abdominal operation only a couple of months earlier, somewhere else, it had been a reasonable assumption that his obstruction was due to adhesions therefrom (in fact, his doc hadn't mentioned the recent surgery when he'd called me, perhaps to justify his diagnosis of stomach-flu.) So it was a big surprise to find volvulus of the right colon (cecum); shocking in fact. Cecal volvulus has a quite characteristic appearance on XRay, and there had been no sign of it on his. Dusky and congested, the colon nevertheless looked viable: the options are to untwist it and see if it is OK after re-perfusion, or to remove it. "How's he doing?" I asked the anesthesiologist: I didn't want to resect and reattach if the man was shocky -- more chance of healing problems. "He's OK," I was told. "Making lots of urine, good oxygenation." As is the case with volvulus, the right colon was nice and floppy, meaning a piece of cake to remove it. Also, avoiding untwisting it meant preventing accumulated bad stuff from being washed back into the circulation -- and it also would guarantee against recurrence. I clamped off the twisted blood supply, snipped out the right colon quickly and easily, and sewed the end of the small bowel (ileum) to the transverse colon beyond the point of resection. Sewing ileum to colon is called "ileocolostomy." (Keep that word in mind, would you?)

"Nice work," my partner said. "He's going to thank you for it. He should do great." He didn't. His blood pressure had, it turned out, been low during the whole operation: the anesthesiologist hadn't mentioned it because every other parameter had been fine (not that it would have changed much in the long run had I known.) And it remained low for the rest of his life, which was about five days. From the recovery room I transferred him to ICU; got consults from every specialty imaginable. Remaining profoundly hypotensive, he required massive amounts of fluids which ultimately ended up in his tissues, swelling him beyond recognition as a human being. All supportive measures -- ventilation, antibiotics, blood-pressure drugs -- failed to bring a response. His family was dumb-struck, as was I. His degree of sepsis didn't make sense under the circumstances, until an Xray a day or two later showed air in his portal vein. The portal vein drains blood from the gut and into the liver. Very rarely, in the face of infection in the belly, the vein can become clotted and infected, essentially a universally fatal condition called "suppurative pyelephlebitis." It's the only case I've seen, despite caring for people with massive intra-abdominal infections, large portions of dead bowel, conditions way worse than this man's.

Every hour of the day and night when I wasn't required elsewhere, I was at his side in the ICU or at his family's. It was agonizing for everyone, and it was soon clear there was no chance of survival. When he died, I felt drained for weeks.

The main issue in my mind was whether I should have operated immediately when I saw him: did I miss the volvulus on the Xrays? Would those few hours have made the difference? I went over the Xrays with every radiologist in town; I discussed every aspect of the case with every surgeon. The films, they agreed, didn't show it. And they all felt the seeds had been sewn during his hospitalization before the transfer. Undoubtedly the portal vein was developing clot even then: it was one of those rare and awful things for which there'd been no solution by the time I first saw him. Small comfort, even if true.

It was and remains the worst case of my career: a death in a previously healthy person (he was probably an undiagnosed diabetic, according to labs during his hospitalization -- it might have increased his susceptibility) from an initial condition that shouldn't have been fatal, for which the operation itself was smooth as could be, and about which there will always be questions in my mind. I've lost other patients; but never so unexpectedly, so frustratingly, so hauntingly. It would have been on my mind forever, no matter what. But with the lawsuit, I found myself in a battle against people I thought were my allies: the referring doc, the hospital, a battery of lawyers, nurses. It opened my eyes, I suppose, to the realities of the world of medical malpractice. Knowing reality is good, so they say. But it also shut my heart part way to the love I'd had for what I do. In the next couple of posts, I'll try to tell you how....