Starting a Dialog between Attorneys and Surgeons about Medical Malpractice (Part 2)

This is part 2 of my talk to the American College of Surgeons about medical malpractice and how attorneys for injured patients can work together with organized medicine to make for better, safer care (and fewer lawsuits as a result). (Click here for part 1.)

I want to tell some very short stories about clients of mine where we had to bring malpractice lawsuits against their surgeons. You see the view in these kinds of symposiums from 40,000 feet. Here is the view from sea level.

Mike Wood, backhoe operator:

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Mike Wood lost the median nerve controlling his left hand when a surgeon talked him into doing a procedure to open a blocked subclavian artery (under the shoulder blade) that was causing absolutely no symptoms. Instead of the standard approach through the groin or elbow, for percutaneous balloon access, the surgeon chose his own technique through the brachial plexus, cutting down through the tissue in the armpit, retracting the nerves, putting a catheter in the brachial artery and going upstream to unblock the subclavian. Mike Wood woke up in intense pain in the hand and he couldn't use first three digits. Another surgeon six weeks later found the median nerve swollen and dead in brachial area – a few millimeters from the suture that marked where the artery had been penetrated, and the area of damage matched the width of the retractor that must have pulled too hard and too long on the nerve.

Two vascular surgeons testified in defense at trial. They could cite no literature advocating the brachial plexus cut-down for what was supposed to be a non-invasive percutaneous (through the skin) balloon procedure, and they could cite no one they knew who did it this way. Nor did they unblock subclavian arteries this way. But they told the jury it was still OK.

They also testified about the indications for surgery. Despite the lack of any symptoms, and the lack of any support in the surgical literature for doing this surgery when the patient has no symptoms of pain in the arm or dizziness from the arm trying to grab blood flow from one of the arteries going up the back of the neck to the brain, they also said surgery was absolutely okay to do because of the possibility of future symptoms.

To me, Mr. Wood's case shows hows how overwhelming the case must be to win. And how the defense even defends the indefensible.

Another case: Jaime Vargas, bus mechanic:

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Gall bladder removal: The surgeon cut off the common bile duct (the connection from the liver to the intestines), failed to recognize what he had done for two days, and worse, he did his own roux-en-Y repair and made the arm going to the liver so short the patient got a series of infections in the new bile duct, eventually destroyed the liver and he died.

The surgeon had no explanation for the initial injury: Still, the case was defended by two surgeons, who said the operator had done nothing wrong in failing to convert to open surgery or failing to do x-ray of the bile ducts to make sure he was cutting in the right place. Eventually this case settled shortly before trial, but only after Mr. Vargas had died from liver failure.

One more quick example: Billy Boone, home builder:

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An ENT did surgery to clean out a benign growth behind his ear from his mastoid cavity, called cholesteatoma. Seventeen years before, another surgeon had done the same surgery, and had left a small hole in the base of his skull, but no injury. In the new surgery, the surgeon stuck an instrument through that hole into the base of his brain's temporal lobe. The operative report was silent about this. Only evidence was a CT scan two days post-op, done after patient complained of trouble reading the newspaper and retrieving names of close friends. CT scan showed a pencil diameter tract of air going from the base of the skull into the brain parenchyma, surrounded by a pool of blood.

The defense strategy was deny and defend. They couldn’t really say what had happened, but it had nothing to do with the surgery.

We won the trial, but the case went all the way to the highest court of Maryland. [Blog readers can find the decision here.]

I'm proud to say we made new law in Maryland for patients: giving them a right to know up front if their surgeon lacks experience in the type of surgery he proposes to do.

The Wood, Vargas and Boone cases had this in common – lack of experience by the surgeons.

Dr. Goldberg was a general ENT, not a neuro-otologist, no experience in revision mastoidectomies.

Wood’s surgeon was a cardiothoracic surgeon, not vascular, and had done this procedure once or twice before.

Vargas’s surgeon had been trained in the era of open gall bladder surgeries and was doing this laparascopically, which he had done maybe half a dozen before. More important, on the bile duct repair, he had done one previous in his entire life. A forty-five minute drive from this hospital was Johns Hopkins in Baltimore, which has full-time biliary surgeons who would not have made the basic error of the too-short roux-en-y arm that killed the patient.

American medicine has financial incentives that encourage inexperienced surgeons to not refer patients to better qualified surgeons. In fee for service medicine, the surgeon loses any fee if he refers the case out.

One legal reform could go a long way toward fixing this. If surgeons were employees of their hospitals, and not independent contractors, the employer would have both the muscle and the financial incentives to better supervise individual practitioners. It’s called enterprise liability.

• Enterprise liability: make the hospital (clinic, HMO, etc.) liable for everyone practicing within their institution, even “independent contractors.” This provides an incentive for meaningful peer review, meaningful institutional guidelines and enforcement. Lowers litigation expenses – one defendant, one set of attorneys. It also allows for more equitable spreading of the costs of insurance: instead of high-risk specialists being personally on the line for insurance premiums, the hospital can decide how to fairly allocate the costs of its coverage for all members of the surgical staff.

• Enterprise liability is already the rule in military and veterans’ health care. In fact, individual surgeons are immune from lawsuit. The patient must sue the federal government as the sole defendant.

Outside the government, medical practice is becoming more corporatized. Here in Washington, D.C., Johns Hopkins now owns two of our major hospitals. George Washington University has been buying up doctors’ group practices. Enterprise liability fits into a trend that’s already happening.

• A related concept is enterprise notice. Avoid patients having to sue all providers by letting them put on notice everyone, stop the statute of limitations clock, and add defendants later if discovery shows them to be culpable.

Let me turn to some of the other legal reforms you have been talking about today.

Here is one program that trial lawyers like me have no problem with, as long as it’s done in an even-handed and fair way. That is: Early offer/apology programs, or what I call "be open and honest with the patient."

Here are the essential elements I see for fairness in an early offer/apology program:

• Mandatory participation of all hospital staff, including non-employee physicians, in any apology program. Why? If not, patient who knows this is an “early offer/apology” hospital might think that failure to be approached means whatever happened to them was not a preventable compensable error.

• Right to hire own attorney: Advise patient in writing before any meeting. Encourage lawyer presence. No signing away legal rights without consult from independent counsel. Why? This is not a “full employment for lawyers” program but simply an evening of the scales concept. The hospital will have its own legal counsel, whether present in the room with patient meetings, or just behind the scene. Patients need their own counsel. Period. Any counsel must be completely independent from the hospital, not on any ‘favored attorneys’ list. This will ultimately protect hospital from later accusations of undue influence or fraud.

• Protect apologies from use in court but not facts of what went wrong.

• Stop clock on legal deadline for filing suit till end of talks between hospital and patient.

• Offer fair compensation.

• No penalties for patients who decline early offers.

This follows my simple litmus test: what would you want for a family member hurt by another medical provider that you’re not connected to.

Bottom line on early offers: Your institutions can do all of this now. You don’t need any laws passed to be open, honest and fair with your patients.

Let me speak to a couple of other reforms you have talked about today:

First, clinical practice guidelines, which you are calling "safe harbor" provisions.

• What you may not know is: We already use these in court, and the current system works well: Practice guidelines can be admitted into evidence by either side, with a sponsoring expert to explain. This is the rule under Federal Rule of Evidence 803-18 and similar rules in all states I know of except Minnesota.

• Allowing practice guidelines as “evidence” but not conclusive lets both sides explain to the fact finder why the guideline should or should not be given weight, based on:
– Relevance to this patient.
– Bias and conflicts of interest in the formulation of the guideline.
– Scientific evidence for the guideline.
– Guidelines that are conflicting, vague or otherwise wrong for this patient.

• The proposal for "safe harbor" guidelines as a One-way street – guidelines can exonerate but never implicate a doctor’s liability – is obviously unfair. You wouldn’t want that for a family member injured by medical care.

• If medicine really requires customized attention to individual patients, then guidelines will never be conclusive. If guidelines were conclusive in actual medical practice, that would turn doctors from the thinking professionals that they are now, into mere technicians. So why would you want conclusive guidelines in law that you would not want in medical practice.

• Last point on practice guidelines: I challenge people to show me a case where a doctor proved adherence to a relevant clinical guideline and still lost the case. I would not prosecute the case against that doctor and doubt if any sane colleague would.

Finally, health courts. I’ve already mentioned that having schedules of injury payments is a bureaucratic style solution that does not fit the way we typically work in America. Other problems:

First, there is no evidence of any unfair tilt in the current system toward patients. Quite the opposite.

Why does it happen over and over that indefensible cases go all the way to trial and even appeal, as in the cases of Mr. Wood and Mr. Boone.

Are juries biased? Absolutely yes. But not the way some of you might think. I wrote a book a few years ago about how patients can get better medical care so they never need the services of lawyers like me. And towards the end of the book – after I detailed a lot of common sense ways that patients can better participate in their own health care and improve its quality – I had a short passage about jury trials that I’m going to boil down here:

Seven studies over the past three decades have compared the outcome of jury trials with the private evaluations by the insurance company of their own doctors’ performance. The studies have been remarkably consistent: Even where doctor reviewers have rated the medical care “indefensible” or “poor,” plaintiffs win at trial no more than 50 percent of the time. When the doctor reviewers have rated the care “defensible,” the juries overwhelmingly agree, and vote for the defendant doctors 80 to 90 percent of the time. When different reviewers disagree about the quality of the care, and so the case is rated “unclear” or “a tossup,” the defendants still win around 70 percent of the time. Note the logical pattern in the research: As the evidence of negligence becomes more clear, the victim win rate goes up. But it almost never gets higher than 50 percent, even in the “indefensible” cases. Juries have a very heavy thumb on the scales of justice favoring the doctor defendant.

How are “indefensible” cases defended? For starters, juries never hear about the “indefensible” evaluations. Those are tucked into a very private file back at the insurance company headquarters. A skilled lawyer is hired to defend the case and is set loose to find an expert witness willing to defend the care. … the jury never hears about the turn-downs. For all the jury can see, the plaintiff has an expert, and the defense has an expert, and they’re both pretty glib, and so the benefit of the doubt goes to the doctor, who, after all, was only trying to help his patient.


So those of you who want to do away with juries and have professional fact finders or even “health courts”– just a friendly word of advice – be careful what you wish for. Any reasonably neutral decision maker will return verdicts for patients far more often than happens in our current 50 state system. You might want to look at what happens in federal courts with life-appointed judges from both political parties, who decide malpractice cases without a jury in lawsuits against government hospitals like the Veterans hospitals and military hospitals. The plantiff’s win rate before judges is considerably higher than for malpractice cases tried to juries, according to the U.S. Bureau of Justice Statistics.


More problems with health courts:

• First: Shift from negligence to preventability as the legal standard solves no problems. Fault is embedded in the idea that the harm could have been avoided. If we compensate all harms in hospitals, even non-preventable ones, the system loses all connection to accountability for doing poor job.

• Second: Who are we trying to help? Shouldn’t it be the patients who suffered the worst harms? Why would we shift to a system that in essence reduces payments to worst injured in order to fund payments for lesser injured? Patients with minor injuries can take care of themselves. It’s the crippled, maimed, paralyzed, brain-damaged patients, and family members of those killed, who need a system that tries to bring some measure of justice to what’s happened to them.

Let me wrap up:

I started this talk with the idea that both the leadership of surgeons and patient advocate attorneys want the same thing: to improve safety, reduce medical errors and have fewer injured patients knocking on my door and other attorneys.

We know that concerted safety reform efforts can have a dramatic impact on lowering malpractice payouts. Look at this slide that shows what happened at New York Presbyterian Hospital when they had a multi-year effort to reform the safety of their baby deliveries.

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This is from a study published in 2011 in the American Journal of Obstetrics and Gynecology.

They not only dramatically cut their payouts, more important, they had a lot fewer “sentinel events,” which means many more healthy babies.

This is just one program in one hospital. Safety reform is something you can do even without the cooperation of the plaintiff’s bar. If you don’t like lawyers, that could be your best revenge, by making medicine safer and cutting down on our business.

To me and attorneys who do the kind of work I do, the statistics are stunning, but numbers themselves are not really the point. (Here are a few more pictures of my clients. There are many more.)

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The point is that these are real human beings.

There are many more patients and many more stories just like these.

Their lives were broken by preventable medical events.

They need to be treated honestly and fairly by our compensation system.

They want us to pay it forward. To help make sure the same thing doesn’t happen to other people.

That’s the challenge for your and my professions.