It's been a year since my trial, and five years since the elderly man came into the ED in shock. The trial came much later, of course, after years of depositions, most of which I insisted on attending. The trial itself is best described as life-changing: six days of humiliation and accusations, all the while being told that it was nothing “personal.”
It felt very personal when they questioned my honesty, morals, and intelligence. It felt personal when they didn't miss a chance to accuse me of recklessness, stupidity, arrogance, and laziness. It felt very personal when they asked for an award far more than my policy limits, and I, as the sole defendant, had to imagine the possibility of losing my house, retirement savings, and kids' college fund. Through a stroke of luck, the jury returned a decision for the defense. No one will convince me that on another day, a different group of 12 people could not have found me guilty, and awarded my future to the plaintiff.
It was simply luck that saved me. I sincerely believe that. It is of little significance that I felt and still feel that I cared for the patient as well as any good emergency physician, but the patient died, and his death demanded that someone pay. With a lottery mentality, the plaintiff's attorney put expectations in the plaintiff's minds of a “fair” compensation. That “fair” compensation was totally removed from the real world finances in which we all live.
The medical facts of the case mattered very little. We all live in a sort of ignorant bliss, and want to believe that if we practice good medicine, we will not end up in the defendant's seat. When it happens to you, you come to the shocking understanding that the medical facts matter very, very little. All the medicolegal lectures, articles, and courses base their teaching on the premise that good medicine will prevail. I believe we are delusional to think that way.
I recall this experience with pain. There is no way the term “winner” can be applied to me. With luck, “survivor” is all I hope to realize. Thus I embark, with colleagues of similar experience, to transform this warped culture in medicine.
“Malpractice” is a term that strikes dread in physicians. It carries a stigma so strong that most hide the very accusations of it from their coworkers, physician friends, and sometimes even families. One hears, almost flippantly, that “all doctors get sued. It's just part of doing business.” When I sought out physician friends who had actually gone to trial, I could find only one who would admit it. Surely some of the dozens of physicians I knew as friends must have been through trials. The hard fact is that a malpractice accusation feels like the scarlet letter on the breast of Hester Prynne. Unless one has had intimate experience with the issue, there is still the perception that one would not have been accused unless he had done at least something wrong. Physicians do not advertise the fact that they are being or have been sued because they know that it is a slur on one's reputation. The secrecy with which we treat the issue serves to underscore that point.
The whole matter of secrecy is an important one. Ask most anyone about a malpractice case in which he is involved, and he will reiterate the lawyer's directive to “not talk to anyone about the case.” That might serve lawyer's interests, but it ignores ours. Silence contradicts all we know about stress management. Stress causes anxiety, isolation, and helplessness, and has led some to suicide. Enlightenment through exposure would go a long way in removing the stigma associated with its very name. For far too long, we have robotically accepted the lawyers' directions. That needs to change.
Call it blasphemy, but I say we should all talk about it. A lot. The more we talk about it, the less the shame. Every opportunity to discuss our predicament should be an opportunity to expose it for what it is. We might find, and I predict we will, that most of us have been the target of meritless, painful accusations that have cost us energy, time, and self-esteem. Not a “few bad apples,” but the majority of our conscientious, diligent, committed colleagues. I'm sick as hell of it, and I don't think we should take it anymore.
The public has been told that malpractice occurs to those “few bad doctors,” and that the rest of us have no experience with it. It's hard for them to have much sympathy when that's the case. What an epiphany it will be to find that their doctor, in fact, all of their doctors have experience with being sued! Now that's a horse of a different color! Exposure will lighten the shame, disgrace, and dishonor that we have falsely granted it. Exposure may create a groundswell of disgusted colleagues who are going to demand change.
But our lawyers will all be very unhappy. So what are they going to do about it? I can't wait for my next deposition (and there always seems to be a next one), to be asked if I have discussed the case with anyone. I plan to tell them, “Yes, with a lot of people. Wouldn't it have been unnatural not to?” I'll give them a list if they want. A long list. I plan on calling everyone on that list to let them know what is coming, and what I suggest they do about it. Let them subpoena everyone. We can have a deposition party! At their expense and at our convenience, they can take scores of depositions where we relate mind-numbing nonsense or simply reply that we don't remember.
My hope is that with a few brave voices loudly raised, others will follow. We will be physicians who question the secrecy and the stigma. This can be the beginning of change. We will surely find that there are many of us who have been battered by a broken medicolegal system. We should talk to our colleagues, families, friends, and patients. Let them know that if it can happen to a good doctor like you, then it can happen to anybody.
Just talking about it is a start but not enough to force the changes we need and we deserve. We have worked hard to earn our positions as physicians. We are masters of self-denial, having put aside our personal comforts, pleasures, and way too often, even our health to become physicians. We have served residencies with hours and duties more like military recruits than professionals.
With the many long years of training behind us, we have proved ourselves. No one should have the right to judge our performance except ourselves. As the ultimate self-motivated, self-disciplined professionals, we detest failure. We don't need others to tell us when we have failed any more than a baseball player, having swung and missed at strike three, needs to return to the dugout to have others remind him. When our patients don't do well, we know it, and we despise it. We examine, investigate, research, and discuss with colleagues. We agonize about it, take it home with us, and lie awake at night thinking about it.
To be made the subject of a malpractice trial, not by our peers but by peers of the plaintiff, is criminal. With few exceptions, to be chosen as a juror for a medical professional liability trial, you must know nothing at all about medicine. Does that sound like a jury of our peers?
That's just the start of a system overhaul that needs to occur. This won't be quick, and it won't be easy. After all, it's a whole culture that needs changing. We toiled too long to earn the respect that has been taken from us. We can start today by breaking the silence.
Thanks to Bernie Hossfeld, RN, my compassionate wife, for helping me survive this. Thanks to John Williams, MD; Ed Ward, MD; and Joe Mueller, MD, fellow emergency physicians of similar beliefs whose ideas, support, and encouragement contributed to this essay.
© 2009 Lippincott Williams & Wilkins, Inc.