Section G
e-mail to martin@lightstream.net --
Survival Guide Table of Contents --
Disclaimer --
Physicians tend to view the legal system as a hostile, foreign environment. Of course, if you enter the legal arena as a paid expert you may find the system intriguing, and possibly financially rewarding; after all, you will be paid to tell what you know. On the other hand, if you are a defendant or a plaintiff, you will in all likelihood find the experience incredibly frustrating. You will be dismayed over the extreme adversarial nature of America's legal system, and over the fact (yes, fact) that lawyers often twist the truth or tell white lies in order to argue a case.
Whereas in medicine there is an accepted free flow of information, all to the benefit of the patient, in the area of litigation much information is hidden, inadmissable, or simply left out. In litigation three d's seem to rule: deception, delay and denial.
When a lawyer becomes involved in a contested issue his or her job is "to win" against someone else. The doctor's job is at once more difficult and more prosaic: to win against disease. In medicine everyone is on the same side: doctor, patient, family. But for every legal issue there are inevitably two sides, and lawyers can only win by hurting or depriving someone else, of money, of time, of justice. As a direct result of this adversarial process the truth often takes second stage to legal posturing and maneuvering.
Lawyers also work on a different time frame than most other professionals. Decisions that could be made in a minute take a week, those that could be handled in a week take months. It can take years for some trials to start, and weeks or months to complete. Then there are appeals, which can easily double the length (and expense) of a case.
Why all the rigmarole? Why the hidden information, the delays, the endless arguments and motions, the arcane procedures? The answer is fairly simple. The legal system is designed from the top down to serve one group and one group only -- lawyers. Lawyers make the laws (as legislators), and lawyers (as judges) determine if the laws apply. Lawyers set the rules and then determine if the rules are being followed. And lawyers who argue cases are able to capitalize on the inherent inefficiencies of the legal system by billing by the hour (or, in damage-award cases, by taking a fat percentage).
When you hear from lawyers that "the system works," they are usually referring only to criminal cases, where (they believe) the guilty are convicted and the innocent go free, but even lawyers will agree that this is not always the case.
And in non-criminal (i.e., civil) cases? Does "the system" work? Yes, but in one respect only. Lawyers make a lot of money arguing cases, no matter what happens. In fact, the system does not work for the substantial majority of citizens who are penalized in lost time and money while lawyers work to transfer wealth from American business and professional groups into their own pockets.
To get a reasoned view of what's wrong with the legal profession, both in civil and criminal matters, read: Lawyers and Thieves, by Roy Grutman and Bill Thomas (Simon and Schuster, 1990); A Feast for Lawyers, by Sol Stein (M. Evans and Co., New York, 1989); and With Justice for None, by Gerry Spence (Times Books, New York, 1989).
Now on to medical malpractice.
1. The major thrust of medical malpractice litigation is to transfer a portion of the wealth of physicians to a select group of lawyers -- lawyers for the plaintiff (patients's counsel) and for the defense (doctors' counsel). The driving force behind malpractice litigation is not, and never has been, to compensate injured patients. That some patients get justly compensated is a fortuitous byproduct of the malpractice industry, but not its purpose.
2. There is medical negligence, but most injured patients never file a lawsuit. (Localio, et. al.: Relation between malpractice claims and adverse effects due to negligence. NEJM 1991;325: 245-251.) There are some bad doctors but it appears that most of them are never held accountable by malpractice lawsuits.
3. Most people who consult a lawyer seeking to sue a doctor are actually turned away, either because they have no case or because there is not enough money in it for the lawyer. In one study malpractice law firms received an average of 12 calls per day concerning malpractice complaints; one in thirty calls lead to the filing of a lawsuit. (Huycke LI, Huycke MM. Characteristics of Potential Plaintiffs in Malpractice Litigation, Annals of Internal Medicine, 1994;120:792-798.)
4. The plaintiff's lawyer who finds the "right case" has won the lottery. A plaintiff's lawyer can (and often does) make more money from the patient's injury than the doctor who inadvertently caused the injury can make in many years of practice, working 50-60 hours a week. Medical malpractice will never be seriously reformed until this golden opportunity is abolished. It is called the contingency fee.
5. For lawyers, there is no penalty for filing a worthless, meritless lawsuit. People who cite some obscure case where the lawyer was "countersued" or "censured" are citing an extreme exception to the rule. There is no penalty for filing a worthless, meritless lawsuit.
6. Your chances of avoiding malpractice litigation are much improved if you a) take care of the patient without worrying about the lawyers, and b) establish honest and forthright communication with the patient and/or the patient's family. Your chances of winning a malpractice action are definitely improved if you document everything you do at the time you do it. You should never go back and change anything already written in a chart, but you can certainly add anything you wish, as long as it is dated and timed when you write it. In most malpractice cases, physicians provide care that is defensible (Taragin MI. Willett LR, Wilcez AP, et. al. The Influence of Standard of Care and Severity of Injury on the Resolution of Medical Malpractice Claims. Annals of Internal Medicine 1992;117:780-784.)
7. Only the dumb or hopelessly arrogant doctor does not know
when he/she has angered the patient or the patient's family. An
angry patient/family is more apt to be litigious if there is a bad
outcome. Although an untoward result is certainly one reason
for malpractice litigation; another reason is, all too often, bad
communication with the patient and patient's family.
1. A deposition is a question-and-answer session outside the courtroom, during which a lawyer may ask the defendant, plaintiff, or expert witness questions under oath; it is only used in civil (as opposed to criminal) cases, preparatory to a trial. It is part of the discovery process that takes place before any civil trial.
3. During your career you may be asked to give a deposition for one of several reasons: you are being sued; you are a material witness in a case; you are an expert witness for the defense or the plaintiff; or, you are suing someone or some organization.
4. The purpose of a deposition is so the lawyer can follow the cardinal rule of trial law: Never ask a question to which he or she doesn't already know the answer.
5. You will be represented at any deposition by a lawyer on your side (whatever your side may be). Your lawyer may object to anything you are asked. Then you usually answer the question anyway. It is up to the judge to decide if the question will be admissible in court.
6. The five rules of any deposition are: a) understand the question before you answer; b) if you don't know the answer say so; c) always tell the truth; d) don't volunteer information; e) don't purposely try to anger the opposing lawyer, no matter how upset you are; he/she has a job to do.
7. Many lawyers use "tricks" to get people confused or to say foolish things, or to trap them into answers that can be used against them in court. Here are some common tricks a wily lawyer may try during deposition. Be wary.
a) The "complicated question" trick. Only the lawyer understands the question, and your answer may not be what you think it is. The lawyer hopes to use your unintended answer against you in court. Example: "Doctor, is it not true that you didn't check the lab value when you did not see the patient?" Huh? HOW TO AVOID: Ask that any complicated question, particularly one with a double or triple negative, be rephrased. State: "Your question is confusing. Could you please re-state it without the double negatives." This request also serves notice to the attorney that you are "on" to his double- speak.
b) The "general category" trick. The lawyer may try to get you to agree to a general statement which seems true enough, then hang you later by transferring your answer to a different situation. Example: Doctor, do you accept the PDR as authoritative? Yes, it is authoritative, you agree. Later in the deposition (or worse, at trial), he asks, "Doctor, don't you agree that the 75 mgm of Demerol you gave the patient could have suppressed her breathing?" Well, no, you don't. "But doctor, earlier you affirmed that the PDR is authoritative," and then he reads a long list of potential reactions to Demerol listed in the PDR, which include suppression of breathing. By the time you have explained "no, not this dose of demerol in this patient in this setting" you may seem to be eating your words. HOW TO AVOID: Watch carefully for all questions of a "general" nature; chances are, the lawyer is trying to set you up by applying your answer to a much more specific situation later on.
c) The authoritative textbook trick. A variation of the "general category" trick is when the lawyer asks what textbook(s) you find authoritative on any given issue. You innocently reply "Harrison's Textbook of Medicine" or some comparable multi-authored text in your specialty. Nothing more comes of this question during the deposition. But in court you find a chart containing a blow up of a paragraph from the book you cited in deposition. And guess what? The selected paragraph seems to argue against your position. You try to explain how you don't agree with this part of the textbook in the context of your patient, but the lawyer quickly retorts: "But doctor, didn't you tell me, under sworn testimony, that this is an authoritative text?" HOW TO AVOID. Don't offer as authoritative any text (or author, for that matter) without stating that everything in a textbook is general and can only be interpreted in light of the specific patient being cared for. Emphasize this point repeatedly and you will likely not be greeted in court with a blowup of any textbook.
d) The "hypothetical patient" trick. Early in the deposition the lawyer poses a clinical situation about a hypothetical patient, which is close but not exactly like the situation you are testifying about. Example: "Doctor, if a patient comes to the emergency department with chest pain and dyspnea, would you think of pulmonary embolism as a possible cause?" You answer 'yes, you might.' Later in the deposition, he points out that your patient had chest pain and dyspnea, so why didn't you think of pulmonary embolism? Easy. At the time you thought your patient had pneumonia as an explanation for the symptoms, not PE, particularly since the chest x-ray and white cell count strongly suggested infection. But given your previous answer, you may seem to be eating your words. HOW TO AVOID: Whenever a question is not about your specific patient, but about some "hypothetical patient," respond: "Excuse me, are you speaking about this patient (the one in the lawsuit) or some other patient?" The lawyer will say, "For the moment, doctor, let's assume another patient." You say, "I'm sorry, I don't know about the other patient, only about the one I cared for. Could you tell me more about your other patient? What was that patient's white blood cell count, differential, arterial blood gases, sputum gram stain?" Alternatively, you could answer: "Medical diagnosis is complex and incorporates history, examination and testing. Could you please give me some more information about your hypothetical patient?" Either way, the lawyer will quickly back off from his "hypothetical case" and take another tack.
The medical system is inherently wasteful and, to a large extent, dishonest with the general public. Although most doctors are ethical and practice good quality medicine, the profit motive has distorted the system to a degree that has all but ruined the medical profession. That is why, collectively, doctors and hospitals, so vital a part of society, are also so distrusted by the general public.
One problem is simply incompetent doctors. The medical profession has too long accommodated incompetent doctors by looking the other way. Doctors give lip service to policing their ranks, but in fact there is very little done about irresponsible physicians. It is really the lawyers, and the threat of malpractice litigation, that has compelled doctors to "clean up their act."
Compounding the problem is the arrogance of many physicians. The entire medical system seems designed from the top down to serve one group only doctors. Patients take second place to doctors' arrogance, power, and efforts to preserve income. When you hear doctors gloat that America has the best medical system in the world, they really mean it has the only system that allows doctors to become rich at the expense of patients.
A physician can bill hundreds of dollars for only 10-15 minutes work. By contrast, lawyers have to work long, arduous hours, and be paid only by the hour (except for a small percentage of lawyers who work on contingency), while everything they do is scrutinized by others.
Compared to lawyers, doctors have it easy. They don't have to know everything about their patient's case to practice medicine, and most don't. By contrast, if a lawyer went into court not knowing everything about his or her client's case, he could be cited for incompetence by the judge. No one ever cites doctors for incompetence, except juries in malpractice cases.
Every legal client is a new study, which often takes hundreds of hours. Every patient is not a new study, and the doctor merely uses already-gained knowledge to make money.
There are numerous other problems that afflict the medical profession. To get a reasoned view of what's wrong with hospitals and the medical profession, read: The Great White Lie, by Walt Bogdanich (Simon & Schuster, New York, 1991). To view a layman's perspective of what's wrong with residency training programs, read: Residents: The Perils and Promise of Educating Young Doctors, by David Ewing Duncan (Scribner, New York, 1996).
1. The raison d'etre of medical malpractice litigation is to compensate injured patients; if there was no negligence resulting in injured patients, there would be no medical malpractice litigation. Physicians who raise the specter of a "malpractice crisis" and bemoan the premiums they pay, simply ignore the basis of the problem -- medical negligence. In fact there is much more medical negligence than ever gets to court. (See Localio, et. al.: Relation between malpractice claims and adverse effects due to negligence. NEJM 1991; 325: 245-251.) There are plenty of bad doctors but most of them are never held accountable by malpractice lawsuits.
2. Most doctors would never admit it, but the specter of medical malpractice is a plus for American medicine. The threat of litigation is one reason why medicine in the U.S. is far superior to that of most other countries, particularly places where malpractice lawsuits are rare (probably most countries on the planet). In truth most physicians and hospitals practice with one eye on the lawyers, and while some would call this defensive medicine, in reality it is "more careful" medicine. The physician knows full well that a blatant mistake or oversight runs the risk of landing him or her in court. Hospital administrators know that improper credentialing or incomplete charting may make their institution vulnerable in a lawsuit. Overall, this heightened attention to detail has improved the practice of medicine, notwithstanding all the whining heard from doctors and hospitals.
3. Most people who consult a lawyer seeking to sue a doctor are actually turned away, because their case has no real merit. (See Huycke LI, Huycke MM. Characteristics of Potential Plaintiffs in Malpractice Litigation, Annals of Internal Medicine, 1994; 120:792-798.) The cost of litigation, in both time and money, is so great that competent lawyers aren't going to file a lawsuit without very good cause.
4. The large fees plaintiff lawyers receive when they win a case are fully justified by the enormous costs involved in suing doctors and hospitals. Those expenses are totally uncompensated if the case is lost. Lawyers are willing to make an investment for cases they believe in; indeed, without the risk assumed by plaintiff's lawyers, the vast majority of injured patients would have no hope of redress.
5. Most doctors can certainly avoid malpractice litigation if they apply accepted standards of care, and establish honest and forth-right communication with the patient and/or the patient's family. One recurring problem in malpractice litigation is the often sloppy, difficult-to-read notes doctors tend to write. Certainly doctors who document what they do, clearly and honestly, have a much better chance of prevailing in any litigation than those who don't. In fact, some huge punitive awards have been won against doctors who changed the medical record after a patient was injured. Doctors should know that such changes are easy to discover.
6. Patients would not seek out attorneys so often if doctors simply communicated better with them. Unfortunately, many doctors are arrogant to a fault, with a "holier than thou" attitude; this tends to make the patient or family angry and frustrated. If there is a less than optimal medical outcome, an angry and frustrated patient (or family) is far more apt to be litigious.
1. A deposition is a question and answer session outside the courtroom, during which a lawyer may ask questions and the answers are given under oath; it is only used in civil (as opposed to criminal) cases, preparatory to a trial. It is part of the discovery process that takes place before any civil trial.
2. Doctors are often asked to give depositions, for one of several reasons: as defendant; as a material witness in a case (e.g. a treating physician who is not being sued); as a paid expert; or as a plaintiff. Physicians are always represented at any deposition by a lawyer on their side (whatever their side may be).
3. The purpose of a deposition is so lawyers can learn about the case and not waste time in the courtroom. Depositions allow lawyers to learn what they need to know quickly and efficiently, so they can provide a succinct and straightforward presentation in the courtroom if the case goes to trial. Often, a deposition will reveal weaknesses or strengths of a case and help both parties settle, thus avoiding the courtroom altogether.
4. Doctors may think lawyers are out to trick them but that is almost never the case. Lawyers simply want to obtain a full account of what happened in any given case, and the doctor's perspective of the case. Also, the deposition helps prevent the doctor from misleading the lawyers and jury in court; it puts the doctor on record, so he or she can't change an opinion when testifying before a jury.
5. The biggest mistake doctors make in depositions occurs when
they try to show how much smarter they are than the lawyer
asking questions. Without verbalizing it, physicians sometimes
display an arrogant, angry attitude: 'How can you, a mere
lawyer, dare to ask me questions about medical judgment?' This
attitude only hurts the doctor's case, particularly if it shows up
in the courtroom. Juries and judges don't like that attitude in
anyone, especially in doctors.
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You may never have heard of the Libby Zion case, but it has probably influenced your career as a house officer more than any other litigation. Libby Zion was an 18-year-old woman admitted to Cornell Medical Center's famed New York Hospital the evening of March 4, 1984. She was brought there by her parents, manifestly ill, with high fever (41C), signs of dehydration and "uncontrollable shaking." She had a clear chest x-ray and a WBC of 18,200/cu. mm. Libby was admitted to a four-patient room, with a tentative diagnosis of "viral syndrome." The admitting orders specified "routine vital signs." The Zions left their daughter's bedside in the early hours of March 5, 1984, assured by the house officers that she would be OK.
A few hours later, at 7:45 a.m. March 5, the parents received a call that Libby Zion was dead. From the beginning, medical negligence was assumed by the family. Sued were three hospital residents, the attending physician, and New York Hospital. Investigation revealed that, prior to admission, she had been taking Nardil (phenelzine), an antidepressant prescribed by her psychiatrist, and that one of the house officers gave 25 mg. Demerol to control her shaking spells. The drugs are not supposed to be used together.
The intern in charge was off on another ward between 3:30 a.m. and 6:30 a.m., when Libby Zion went into cardiac arrest, and during that period she never checked on her patient. Also, the nurses reported calling this house officer two or three times because of the patient's agitation, and the intern had ordered "a posey jacket."
At the trial there was conflicting evidence about cocaine being present in Libby Zion's blood (one test showed it was, one test showed it wasn't). The medical examiner officially ruled her death as due to "bilateral bronchopneumonia" and that she died of a very high fever and "sudden collapse" soon after receiving injections of Demerol and Haldol "while in restraints for toxic agitation." Libby had not been started on any antibiotics while in the hospital.
This would be just another tragic case of medical negligence were it not for the crusade undertaken by Libby's father, Sidney Zion, a well connected reporter for The New York Times, as well as a lawyer and former prosecutor. He turned the loss of his daughter into a crusade for reforming the training conditions of interns and residents. He hired a private investigator, plus physician-experts to examine her medical records. They confirmed his worst suspicion, that Libby's care had been "slipshod, and that errors, not disease, had killed her." In addition to filing a civil malpractice suit against the doctors and hospital, Zion convinced the Manhattan District Attorney to convene a grand jury for possible criminal indictments.
The grand jury report, issued December 1986, did not find cause for a criminal indictment of the physicians, but it did indict the way medical residents were trained at New York Hospital and elsewhere in New York. The report claimed that the "medically deficient care and treatment in this case" which included lack of supervision and overworked residents was "systemic" and posed a grave potential danger to patients. It specifically cited:
The result of the grand jury report was a series of reforms that reverberate to this day. Initiated in New York State directly because of the Libby Zion case, they have been adopted by most training programs across the nation: a maximum 80-hour work week (down from 100); a mandatory day off during a 7-day period; closer attending supervision of residents, particularly in the ER; night float coverage to relieve busy house officers; and fewer numbers of patients under the care of single resident.
And the result of the malpractice suit? Because of legal delays the civil trial did not take place until late 1994. New York Hospital was exonerated, despite the earlier findings of the grand jury. Negligence was assigned to the intern for not responding to the nurse's calls on March 5, 1984, and to the attending physician for allowing his patient to receive Demerol when it was a contraindicated medication. (The attending was also sued for not coming in to see his patient, but this charge was not upheld by the jury.)
The jury also believed that Libby Zion had ingested cocaine, and so assigned "blame" for her death 50-50, to the doctors and to the patient. Since the total awarded was $750,000, the family stood to receive just one-half, or $375,000. In one of those legal twists common to litigation, the judge threw out the 50% blame assigned to Libby Zion, but also lowered the total amount awarded to $375,000, so that the net amount to the family remained the same. He also granted Sidney Zion 30 days to opt for a new trial on the specific issue of cocaine use raised at trial. Sidney Zion did not re-file.
In the end, therefore, negligence was assigned to the doctors, and not the hospital. Sidney Zion won an almost pyrrhic victory, monetarily receiving far less than asked for, and failing to get from the jury the stinging rebuke of the house staff training system. (Zion later stated that the $375,000 was less than had been spent on legal fees.)
Nonetheless, the Zion case was in large measure responsible for several reforms of the resident training system. Realistically, though, these reforms do not target what killed Libby Zion. In fact, her intern at the time was not overworked (she was not caring for other critically ill patients that night), was not incapacitated by lack of sleep, and was under the same type of supervision as is typical of today's training programs. The intern was in the hospital, on another floor, and could have responded, could have transferred Libby to intensive care, could have asked for help from any number of physicians. In truth, Libby Zion's intern at the time was simply too inexperienced to properly care for the patient, to recognize when someone needs more than a posey and Demerol.
In her defense, the supervision of junior house officers at the time was inadequate, and also typical of big teaching hospitals. However, this defense only spreads the blame and does not exonerate any involved doctor. As stated in a New England Journal of Medicine review published in 1988 (long before the malpractice trial), "the grand jury confused professional incom-petence with long working hours."
Libby Zion would most probably have lived had she been in an intensive care unit, monitored closely for pulse, blood pressure, blood gases and other critical parameters, by a physician who could make changes in therapy as necessary. That type of care was available in every teaching hospital in the land in 1984. The tragedy occurred because Libby Zion was simply in the wrong part of a teaching hospital, under the care of inexperienced house officers.
This type of mistake continues right along. Sick patients
sometimes flounder because they are on the wrong service, or
under the care of an inexperienced intern or resident. Often, just
transferring a sick patient from Service A to Service B, or from
the regular ward to the ICU, or from Dr. X's to Dr. Y's care,
makes all the difference in the world. The Libby Zion tragedy,
minus the powerful and crusading relative, continues to happen
more often than we care to admit.
References
Asch DA, Parker RM. The Libby Zion case: One step forward or two steps backward? Sounding Board, NEJM, 1988; 318: 771-75.
Block AJ. Revisiting the Libby Zion case. Chest 1994;105:977-78.
"The Public Gains From the Zion Case." The New York Times, editorial, February 8, 1995.
Duncan, David Ewing. Residents: The Perils and Promise of Educating Young Doctors, Scribner, New York, 1996.
END OF SECTION G