Victims Deserve Sympathy Too

I read with interest an article by Dr. Savitsky in the New York Times http://well.blogs.nytimes.com/2009/12/28/when-the-doctor-gets-sued/?page=12#comments. She discusses how awful she felt about being sued for malpractice.  Missing in her article is any empathy for the family of the patient who died or for the victims of countless medical errors.  While it is troubling to be sued for any reason, whether it is for rendering substandard care or for driving a car negligently, we must keep things in perspective.  Patients often sue due to actions by physicians and hospitals to put up a wall of silence when a mistake has occurred.  Patients must turn to the legal system for answers, as well as for means to cover the crippling costs of medical care and equipment and, most importantly, to take steps to ensure that the same mistakes do not occur to other patients. Many physicians I have represented and with whom I have spoken are well aware that the medical system is terribly flawed from a patient safety perspective and that mistakes occur with alarming frequency, most of which do not result in lawsuits. The legal system can serve a valuable role in bringing attention to and remedying these mistakes. If physicians lose their sense of empathy for those whose lives have been terribly upended by medical errors, we will get no where in these efforts.

Appearance on “Fox & Friends”

I was pleased to have the opportunity to appear recently on national television on “Fox & Friends” to discuss the impact of medical errors and tort reform on health care costs.  In particular, I pointed out that, according to the National Patient Safety Foundation, approximately $29 to $38 billion is spent per year treating those who are injured through medical errors.  Furthermore, I pointed out that what is cast aside is the fact that tort reform measures may increase deaths from medical errors by anywhere from 5 to 10 percent above the nearly 100,000 per year who presently die from such errors.  (The support for this is in a report recently published by the Congressional Budget Office.)  Please feel free to contact me for authoritative articles on the costs of medical errors and tort reform.

Help End Medical Errors – Visit www.josieking.org

Please visit www.josieking.org to learn about one of the most important organizations in the country that seeks to prevent others from dying or being harmed by medical errors.   I also highly recommend that you buy Sorrel King’s book ”Josie’s Story” to read the tragic yet inspiring story of a mother who accomplished so much arising out of the death of her daughter due to a medical error.   (The proceeds from the book benefit the Foundation.)  I could not put it down.  It was not only that it was inspirational and compelling, but that it gave voice to all of those who have been afflicted so terribly by medical errors.  As a trial attorney who represents these victims, and one who considers himself first and foremost a patient advocate, I have been screaming into the wind about these problems for years.  Sorrel King has a magaphone and is getting the medical community to listen.

Defensive Medicine is a Misdiagnosis

Tort reformers claim that reducing medical malpractice lawsuits will substantially decrease healthcare costs.  That’s misdiagnosing the cause of the disease and then treating it with the wrong medication.  Before jumping to a diagnosis, consider that according to the Congressional Budget Office, malpractice costs are less than 2 percent of annual health care spending.   Also consider Texas, where tort reform substantially reduced medical malpractice lawsuits, but not healthcare costs.  Renowned patient safety advocate, Dr. Atul Gawande published an article recently in the New Yorker dismissing defensive medicine and correctly identifying the major cause as fee for service; the more tests doctors order, the more money they make.  Meanwhile, it is undisputed that preventable medical mistakes kill 98,000 Americans per year.  That’s the equivalent of two 737’s crashing every day, and doesn’t even account for the vast number who are severely injured and disabled from mistakes.  The cost of treating these victims is as much as $29 billion per year according to the Institute of Medicine.  So, rather than blaming defensive medicine, and then spending millions of dollars and countless administrative hours on “pilot projects” like health courts, lets all work toward a real cure for the sickened health care system – reducing medical errors.

Enough with the Untruths About Medical Negligence Lawsuits

September 8, 2009

Attorneys like me who advocate for many Americans injured because of avoidable medical errors and neglect withstand the onslaught of arrows from tort reformers.  We obtain fulfillment in helping severely disabled people obtain desperately needed medical care due to tragic medical mistakes.  No persistent petulant comments can strip away the privilege of being privy to the courage of families who endure such tragedies with grace. 

However, when inaccurate information about malpractice suits is widely disseminated, it does a great injustice to these injured Americans by making them victims twice over, once from malpractice and again from distortions about their claims and suffering.   Tort reformers claim that that medical malpractice lawsuits are mostly frivolous and out of control.  In truth, a comprehensive study led by David Studdert published in 2006 in the New England Journal of Medicine conducted by physicians concluded that “the malpractice system performs reasonably well” and that the concept of “frivolous litigation [is] overblown.”  The study also found that the types of reform, like caps, would have limited effect on costs in that the “vast majority” of resources go toward resolving legitimate claims that involve errors; such as those that cause the deaths of nearly 100,000 Americans yearly according to the Institute of Medicine.  Furthermore, implementing health courts, suggested by some, would abrogate patients’ constitutional right to a jury trial and is based on the faulty presumption that jurors lack sophistication to render rational verdicts.

I suggest that we spend our efforts figuring out how to eliminate the innumerable medical mistakes that happen every year to Americans, rather than denigrating the legal system upon which those who have suffered must rely in order to survive.

When Saying “I’m Sorry” Helps to Heal

Mediation in a medical negligence lawsuit we handled last year started like any other, but took an unexpected twist.
The case involved the tragic death of a young girl, whom we will call Samantha, from an undiagnosed and untreated shunt malfunction in her brain.
At the start of the mediation, we, as the attorneys for her parents, made a presentation of the case and the evidence in support of our position.

There was no attempt to demonize the doctor, but just to explain in a professional manner the mistakes he made that led to her death. Samantha’s mother then spoke about the hole in their life created by their daughter’s death.

One of the most emotional moments was when she said that the dress she had purchased for her daughter to wear at her junior high school graduation that spring ended up being the dress in which she was buried.

One of the defendants, a pediatrician whom we will call Dr. Jones, appeared at the mediation out of respect for Samantha.

He listened intently to the presentations about the mistakes he had made and the devastation they caused Samantha and her family.  He then asked to speak.

He said that he wanted the parents to know that he thought of Samantha all the time, and that he was sorry for what had happened. He made an honest evaluation of his mistakes and accepted responsibility for her death.

He expressed heartfelt sentiments of sorrow and conveyed that Samantha was more than just a patient to him. He missed her too. He stayed throughout the day-long mediation.

At the end when the case settled, he asked the parents if he could hug them, and they embraced.
None of us was sure how the parents would receive this. Would it deepen their anger? Would it add to the hurt? Would it make them feel guilty for bringing the suit?

Yet none of that happened.

At the moment, they appeared stunned. But a few days later, Samantha’s mother wept from a sense of tremendous relief.

She had lived for years wondering if her daughter’s death was somehow her fault. As parents like these know, when a child gets hurt or dies, the awful thoughts that can haunt them are, “Could I have done something more, something better, something different, to save her?”

Those thoughts vanished that day once Dr. Jones apologized. Dr. Jones did not save Samantha, but he did save her parents. Surely it also helped Dr. Jones heal, which he too deserved. The integrity and the courage he displayed was inspiring.

Unfortunately, it almost never happens that a physician acknowledges his mistakes so forthrightly.
Instead, the usual instinct is to duck and dive. This only adds to the anguish felt by those who have suffered a loss.

Surely both sides to a lawsuit find the process very unpleasant and difficult. However, this case demonstrated that lawsuits can allow for what otherwise would not happen – reconciliation.
For this to happen, everyone must come to accept that medical mistakes do occur and that people do suffer from them.

But just as importantly, we should all realize that the physician’s power to heal can be brought to bear even in the context of litigation.