Tuesday, July 14, 2009

Even Doctors Make Mistakes Occasionally

I'm not a proponent of rampant medical malpractice claims. I think attorneys get a bad rap for being 'sue happy' when it comes to suing doctors. The fact is, most attorneys I know who handle medmal cases are far from sue happy. In fact, they tend to be just the opposite. Frankly, there's a lot of self-interest in attorneys minimizing bringing medical malpractice lawsuits. This is because:
  • a) they are very expensive to bring;

  • b) they are extremely time-consuming for the attorney and office staff;

  • c) the doctor's insurance companies have huge financial resources to fight the claims; &

  • d) the doctors, themselves, can reject a reasonable settlement -- even if the doctor's attorney and insurer believe settlement is appropriate.

And since almost all such cases are handled by the injured person's attorney on a contingency fee basis (i.e., the attorney only gets paid based on a % of any settlement or recovery), it is in the attorney's best interest not to take a 'loser' case. I'm a big believer in taking good cases; and leaving the 'dreck' behind.

But sometimes, there are good cases. And unfortunately, a doctor's pride can sometimes get in the way of a reasonable, responsible, and timely resolution. Such was the case in a situation in which my client came to me complaining of a goof by her hand surgeon. I won't get into the specific medical details. Suffice it to say that she went into her doctor for a surgical procedure to correct a condition in which one of the bones in her hand had been damaged. As you might know, the hand has many bones. They all work together to give us the ability to manipulate items with great dexterity. In this case, the doctor was supposed to remove the small damaged bone and replace it with a filler. Unfortunately, the doctor messed up. He removed the wrong bone -- the healthy bone immediately adjacent to the damaged bone.

For months, my client was in pain. The surgery didn't seem to have worked. She complained to her surgeon, who merely accused her of being a whiner and chastised her for refusing to actively participate in her prescribed post-surgery physical therapy. She finally sought a second opinion from another surgeon who, without difficulty, discovered the operating surgeon's error.

As an attorney, this was one of the easier medical malpractice cases to prove. After all, we had x-rays from just before the surgery, and x-rays from shortly after the surgery. We had the surgical report from the errant surgeon, and the surgical report from the subsequent surgeon who had to try to fix the unfixable goof. (It was almost as straightforward as a case in which a surgeon amputates the wrong limb!) Yet, when faced with this clear cut evidence, the initial surgeon refused to admit his error. So we were forced to commence a lawsuit.

The lawsuit didn't last too long. The handwriting was on the wall. The doctor attempted to come up with explanations for the problem; but none made sense. Finally, during his deposition, I asked him what could explain the fact that the damaged bone was present both before and after his surgery; but that a previously healthy bone was missing following his surgery. And although he admitted these facts; he admitted no explanation for how that could have occurred. The only thing he was sure of was that he didn't do it. It sounded like a 9-year old boy trying to explain who broke the vase; while standing among the broken glass with a hammer in his hand.

Fortunately -- finally -- his attorney and insurer were able to convince the doctor to authorize a settlement (undoubtedly explaining to him that he would look pretty foolish on the record in front of a jury).

Doctor's make mistakes. So do lawyers. So do plumbers, electricians, builders, teachers, drivers, policemen ... you name it. Let's face it. EVERYONE makes mistakes. It doesn't make them bad people. In fact, it makes them human! When people make mistakes, it's always better to just admit them and move on. When people make legal mistakes, the answer is really the same (although, perhaps, after consultation with an attorney).

With the overwhelming evidence against this doctor, he should have admitted the mistake, and allowed his insurance company to handle it on his behalf. It's unfortunate that he put up a silly -- non-existent -- fight. As a practical matter, it cost him more. He needed to spend substantial time away from his practice dealing with the litigation process -- and frankly, my client might have been willing to settle for less had the doctor not forced her to sue in the first place.

There's a lot to be learned from basic kindergarten rules --- like admit your mistakes and move on.