Not long before RSNA, we lost Marion, my mother-in-law, affectionately known as “Mar-Mar”. Her health had been deteriorating for a while, and then she fell, compressed a couple of vertebrae, and spiraled down quite rapidly. Fortunately, she had left instructions to avoid all heroic measures, and she died peacefully with Mrs. Dalai and I and her long-term care nurse by her side. I hope to go in the same manner, although not for quite a while.
In the course of working up her fractures, it was discovered that she had a mass, which turned out to be malignant. I asked her physician to review her images with us prior to biopsy, and there was indeed a truly ugly lesion. The hospital used a PACS that shows thumbnails, and we could easily see a very tiny image from a study performed last year. And that thumbnail quite clearly showed the very same lesion, although somewhat smaller. Mar-Mar’s cancer had been missed, and allowed to progress for at least 10 months.
In her particular case, this was a blessing. Rather than prolong her dying with futile and probably painful therapy, the miss prolonged her living. She had 10 months of having lunch with the ladies, playing cards, and generally doing what she wanted to do. We have no regrets, and no anger toward those who made the error.
That last one is the most important item for today’s discussion. Anger plays a huge part in the deterioration of our society, in general, and in the medical malpractice game in particular. Let me diverge a moment to tell you about something that happened to me a few days ago. Bear with me and the relationship will become clear.
I was at the neighborhood strip mall, having mailed a package at the Post Office branch. I started to pull out of the parking place with my lumbering, gas-guzzling SUV, when to my shock, I saw a beat-up little red sedan cruise right behind me. I slammed on my brakes, fortunately in time, and avoided the otherwise inevitable accident. I suppose it would have been my fault had I hit, but I had looked both ways, and I’ve got to assume the driver sped up as I started out of my parking spot. But that isn’t the important detail. The driver, a girl in her 20’s wearing a black chef’s tunic, stopped about 20 feet from me, got out of her car, and started shaking her fist and yelling, while a young bearded male in the passenger seat sat and watched the show. I waved gently, as if to say, “yeah, I know, but we’re all OK.” She kept it up, so I drove off the other way. She followed me for a mile or so, then got tired of it and went on her way.
What does this have to do with misses and malpractice? I’ve got enough friends who happen to be litigators to know that two things drive a malpractice suit: anger and greed/envy, and they go hand-in-hand. (And as an aside, the majority of cases appear to reach the attention of a lawyer because ANOTHER DOCTOR told the patient that something wasn’t done as well as HE would have done it.) As with the young lady driving the beat-up car, an accident or even an incident that approaches such is enough to promote rage in some of us, perhaps even most of us. It doesn’t matter that the act was unintentional. I did not set out yesterday to trash some kid’s little red jalopy. I think it’s also reasonable to say that no physician decides some morning to cause harm to his patient. A missed finding, like a parking-lot collision, is an accident. It is not meant to happen, and everyone would prefer that it doesn’t. This is where greed and envy can augment the madness of rage. The young lady above, at some level, realized that my truck was likely worth 8-10 times what her beater might bring, and no doubt this got her all the more riled. Why should that doofus have a nice car? Who gave him the right to almost plow into me? He must think he owns the road, having an expensive car like that. I’ll show him!
In the case of a miss or other adventure in medical errors, I think the same thing applies, although certainly with a little more justification. There is clearly a relationship between doctor and patient. If something goes wrong, the patient feels betrayed And the patient gets angry. Given the perception of docs as wealthy, the next step in the mental equation may become: he hurt me (or could have hurt me) and he’s going to pay! He can afford it!
While a financial award could put a car back together again, it may not be able to fix what was broken by the medical error. Somewhere along the way, our society has decided that money can compensate for the damage, and maybe that is true. However, juries of our “peers” are wont to award huge sums as punitive measure to “punish” the “bad” doctor. And let us not forget the fact that the litigator might receive 30-50% of the proceeds.
This is wrong. The whole scenario is horrible, and accomplishes nothing but padding the pockets of the litigating AND the defending lawyers. It leads to millions and billions of dollars spent for “cover your ass” procedures and tests. And it’s all predicated on the anger over an accident and the thought that there might be a gold-mine to be had having won the malpractice lottery. This must stop.
I want this to be Mar-Mar’s legacy: we must forgive those who make honest mistakes. We need to remove anger, greed and envy (and lawyers) from the equation, and somehow set up some entity, some body or board, that would determine actual damages and arrange for those to be made as whole as possible, but without multi-million dollar punitive, redistributive, awards . I know this is next to impossible, as there is way too much money to be made by trying “rich” doctors in front of a jury of their “peers” who would love nothing more than to sock it to them. But it is the right thing, and all but those who profit from the malpractice industry, not just the lawyers, but the plaintiff whores who sell their testimony, know that I’m spot on. Mar-Mar would approve.