Make It Right – More Thoughts on Medical Litigation

Thanks to all who dropped by over the past few days. My latest post about apologizing in medicine caused a more than 300% increase in hits to the blog. That particular post was listed at #24 on the WordPress Blog of the Day list as well. The coolest part about that was seeing my wave avatar – the greatest avatar of all time – in line between some guy’s face and a picture of handcuffs! Anyway, I seem to have hit a nerve.

Although not the only thing I think about in my job, I will continue this line of thought with a little (true) story:

2keets.jpgI had a friend in high school who had two pet parakeets. They seemed like they were pretty close pals in their cage – snuggling together at night, chirping at each other…you know, parakeet stuff. When my friend (let’s call her “Beth”) woke up to find one of the parakeets droopy and sick-looking, she quickly put him/her into a little shoe box and whisked it to the nearest veternarian to get checked out.

The vet, who no doubt had many years of education behind him, probably didn’t see many vaguely ill parakeets. Be that as it may, his “physical exam” didn’t go so well. In the course of pushing on one part of the bird, my friend hear a distant *snump*, and suddenly the bird’s head pointed in an acute angle from the body. In short order, the bird went completely limp. The sweet little parakeet – singer of songs, snuggler of partner parakeets – now dead at the hands of the medical professional entrusted to it. The vet looked up to what I’m sure qualified as highly uncomfortable stares of reproach and surprise. Beth was too shocked to much more than mutter, “Oh my god, you just killed my bird.”

“Uh..,” He searched around the exam room. Reaching into a drawer, he pulled out a brown paper lunch sack, dropped the corpse into it, rolled up the top and handed it to Beth’s mom. “That’ll be no charge,” He said, subdued. “Sorry about that.”

So my friend went home with her bird that may very well have died anyway, but now was dead for certain. And from a broken neck, not some mysterious infection. She showed the carcass to her other bird, who let out a warble of what any human raised on a steady diet of Disney anthropomorphisms for a decade could only interpret as the parakeet version of rending garments and gnashing teeth (or beak) in abject sorrow. Furthermore, she thenceforth enjoyed her surviving bird very little at all. It quit singing and became rather “pecky”. It also began masturbating an average of 5 times a day, which altogether made for a rather dispiriting pet, especially when there was company (they had to hide the hapless, undersexed avian in the closet).

So, the vet messed up. But imagine if after dropping the bird unceremoniously into the paper bag, he had unabashedly walked out to his front desk and filled out a bill for a typical visit. “Sorry about killing your bird. That’ll be 80 bucks. Cash or credit?”

In my mind, if you make a mistake in good faith, you should apologize and then try to make things right between you and the person who has been harmed. This entirely justified premise, I think, led to the birth of medical litigation. But this perceived need for litigation came about because of hospitals themselves. Just a few days ago, it was announced with some fanfare, that hospitals here in the Pacific Northwest, would “tear up” bills to patients who endured medical mistakes. They just decided to employ this policy? After 30 years of catastrophic, irrational and flagrantly craven medical litigation, they’re just starting to do this? Can you imagine going to the hospital and leaving with the wrong leg amputated…and then getting a $26,000 bill for the procedure? Until recently, this was actually pretty common. No wonder people got the courts involved!

Hospitals provide free care to homeless and destitute – largely through their ER where they can’t turn people away – on a regular basis. My hospital gives away over a million dollars in care every year. They write it off as charity care and the government gives them a break on their taxes for it. They have a budget for this already. There is absolutely no reason why they can’t designate some patients as qualified for free care for certain problems caused by the hospital staff. No, some guy can’t have monthly chest CT’s because a hangnail got infected while walking across the parking lot to pick up 80 cartons of Virginia Slims. But any continuing care associated with a medical mistake should be free.

Imagine a patient and family being seated in a nice conference room. In attendance are the top administrators of the hospital, the lead doctors and nurses and anyone else heavily involved in his/her case. The doctor then verbally apologizes for a serious mistake that was made even though the entire team had the best intentions. S/he can describe what led up to the mistake and explain how it actually occurred. Then there is an explanation of what is being done to try to protect others from a similar situation. After the doctor is done, the hospital C.E.O. can then tell the patient that all care related to that mistake will be covered by the hospital. Forever. It’s taken care of. Then, the patient and family gets to say talk. They can say anything they want – to the doctor, the nurses and staff on their case, or the administration. This is their chance to rant, to bitch, to tell off the medical team if they want to. They can get everything off their chest and ask any questions they have. They can make recommendations and requests.

I believe that a hospital (and individual clinic) process like this would nearly eliminate high-payout medical litigation. With one other major additional change: Cases should NEVER result in financial independence for the plaintiff. Courts should be used help find blame when the patient and the hospital/doctor disagree. If it is found that the doctor is to blame, then the doc and the institution should be required to provide any related care for as long as necessary. Multi-million dollar payouts, by contrast, provide too much incentive to win the case for Machiavellian reasons. Suddenly, instead of just trying to figure out who is to blame, people are trying to prove incompetence, denigrating character and reputations and flat-out excoriating one another. This system is why I’ll never trust John Edwards, who lives in 26 THOUSAND square feet of house, but professes to care so much for poor people.

It’s easy to say this whole tort system is about the patients harmed, about justice. But as the system is set up, it’s mostly about the money. Lawyers and too many patients get involved with medical litigation to make themselves rich. They should be getting involved to make things right. There’s a big difference.

5 thoughts on “Make It Right – More Thoughts on Medical Litigation

  1. secretwave101

    Nope. I think he was so embarrassed that he just wanted them to leave ASAP. He just dropped the bird into a bag and that was it.

    This was in a different time, mind you. I guess it would have been late ’70’s early 1980’s. Things were tougher back then. It was like, “Sorry lady. Bird’s dead. My bad. Next!”

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  2. one who knows

    Another great post!

    There’s a whole discussion about medical error here, with lots of links to other articles (if you’re interested in reading more):

    http://www.webmm.ahrq.gov/case.aspx?caseID=167

    Money isn’t everything, but when a patient is unexpectedly harmed by their care, apologies can often seem inadequate when the health organization won’t put its money where its mouth is. In our society, after all, money talks.

    Hit a nerve? I would say so. 😉 In fact your original post dredged up a lot of emotional crap that I have been working very hard to suppress for many years. I don’t doubt that physicians remember their errors and misjudgments just as acutely as patients often do. Maybe it’s less painful if we could all gain some sense that something has been done to try to make it right. Confession, atonement and forgiveness, if you will.

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  3. EEJ

    Unfortunately, my friend is dealing with $28,000 in medical debt because of a mis-diagnosis.

    I’m not a doctor, so please forgive the general statements of what happened.

    Friend went to ER with severe stomach pain. They ran some tests and decided he had appendicitis, and that his appendix needed to be removed.

    Wham-blam, next thing he knows he’s missing his appendix and the doctors are telling him that he didnt really need his appendix removed. The problem turned out to be something different that is currently being treated with medication.

    So, problem wasn’t fixed by the surgery, he didn’t request an appendectomy, and he now has a $28,000 debt looming over his head because he was between jobs and didn’t have insurance.

    He’s talked to several lawyers who won’t take the case, because there is no contingency money to be made, and in their words “the doctor was acting in your best interest”.

    I realize it’s not necessarily the doctor’s fault that he was misdiagnosed, but should he still have to pay $28,000 for surgery that wasn’t needed?

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