A Patient Dies, and Then the Anguish of Litigation
By JOAN SAVITSKY, M.D.
Published: December 28, 2009
It was just an average busy, stressful day at work, in May 2004, when the deputy sheriff arrived with a summons. I sucked in my breath, signed the receipt and returned to my desk piled high with charts, messages, lab results and forms. I was being sued for medical malpractice.
That was how it started. Eventually I peeked at the text of the complaint, which was riddled with accusations. Apparently, my conduct was “malicious, willful, wanton or reckless,” and I had “negligently, carelessly and without regard” for my patient’s health treated her in such a manner that she had died the previous year.
At night I lay awake going over and over what happened. My patient was a relatively young woman who had developed an aggressive colon cancer; her illness was unexpected, and her course was tragic. I felt that I had treated her as I would wish to be treated.
But now her children, whom I barely knew, were coping with their own complex emotions, which I imagined to be grief, very likely anger and frustration, and perhaps misunderstanding. Filing a malpractice suit somehow addressed this. And now it would hang over all of us for years. It was as if a noxious subtle film had settled all around, making everything vaguely unfamiliar and unpleasant. I had become a little unfamiliar to myself.
The film settled on everything at home and at work. I loved my patients and my practice, but this made me wary and mistrustful of them ― and of myself.
Medicine can be a minefield of uncertainties; no matter how thoughtful and careful we are, physiology is infinitely complex and fate is capricious, and occasionally something blows up in your face. If this happens, you have to integrate the experience, but for a while you lose your bearings. It is discombobulating. When this is followed by litigation, the effect can be paralyzing. And the lawsuit felt like an assault. Being sued, even with assurances that “it’s nothing personal” and that my insurance would most likely cover any settlement, was in fact deeply personal. The experience was devastating.
Still, I coped well enough. I was able to see patients and almost lose myself in their stories. One day I went in to see a delightful 95-year-old woman for a blood pressure check. In the middle of the visit, she gave me a piercing look. “You’ve got something on your mind,” she told me. “You take care of yourself.”
A few months later, my lawyer, Amy, arrived, a brisk, no-nonsense woman hauling a suitcase full of records. We spent an exhausting and inconclusive morning reviewing the case and the questions it raised. I couldn’t tell if she thought I might win or lose the suit. This was the first of many such marathons.
I had been cautioned not to discuss the details of the case with anyone except my defense team. At one point, I told Amy that I had decided to keep a journal of the experience. Apparently, this was a bad idea. A journal could be subpoenaed, and even if it contained no evidence of wrongdoing, the plaintiff’s lawyer could very likely find something that would be used against me. So talk only to Amy and my claims representative; other than that, suck it up.
After the initial flurry of activity, things subsided, and more than a year elapsed before I was deposed. For a grueling four hours, the plaintiff’s lawyer asked a lot of questions, but he did not hold my feet to the fire, and then that was that. It is often the case that these suits drag on for years, so I was taken by surprise when, in fall 2007, a trial date was scheduled for Oct. 27, 2008, in Middlesex Superior Court. In January 2008, I left my primary care practice after almost 30 years. I can’t say it was because of being sued, but I can’t say it was irrelevant either.
In September 2008, Amy and I resumed the process of reviewing records and discussing strategy. In early October, I was coached on how to testify: keep your feet on the floor, do not cross your legs or fold your arms. Don’t put your fingers together and pontificate. For heaven’s sake, don’t slump. Answers should be crisp and cogent, but do not hesitate more than three seconds before responding. Look at the jury. Don’t lose your cool during the cross-examination. And above all, relax and be yourself.
On Oct. 16, 11 days before trial, I got an urgent e-mail message from Amy. It turned out that the plaintiffs and their law firm had “irreconcilable differences.” These differences weren’t spelled out, but it appeared that the lawyers had decided they were not going to win the case. They couldn’t have figured this out four and a half years earlier? Before all this wasted time, the emotional anguish, and the more than $150,000 spent by my insurance company in the run-up to trial?
The plaintiffs, my patient’s children, refused to let their lawyers drop the case. I could imagine that they didn’t feel well served by this process. They met with their lawyers to resolve this, but neither side gave in. As this slowly unfolded, my mood turned from stoic resignation to a toxic muck of apathy and irritation.
On Oct. 23 everyone except me went in front of the judge. The plaintiffs’ lawyers asked to withdraw from the case, and the family requested a continuance, which would allow the case to be tried at a later time with a new set of lawyers. Amy opposed the continuance. The judge denied the continuance and ordered everyone to proceed with the trial as scheduled.
Just before Amy left, the children and their lawyers conferred again. The lawyers told them that they were unlikely to win and that they would have to pay for the expert witnesses if the case went forward. Finally, the family agreed to drop it, and they all went before the judge to seal the deal.
Amy called me. All in all, I thought I was pretty cool about the whole thing by now. The initial turbulent emotions had been squeezed out or tamped down, and I was ready for whatever happened. But when she told me the news, I started to cry.
Dr. Joan Savitsky is an internist in the Boston area.
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