Tales of justice - Cash cures all
One of my academic superiors stated that it would be far better for well-trained pathologists to offer credible medicolegal opinions that reflect a consensus among respected colleagues, than to leave the field to full-time charlatans who roam the courtrooms, spouting drivel. He has a point, in that if the American public has determined that doctors should, at every opportunity, be fought in court, then the best of us should probably be involved in the battle. I have absolutely no hesitation in recognizing that circumstances exist in which patients deserve to be compensated for certain types of harm that have come to them during the course of medical treatment. If the evidence shows that an adverse outcome derives from an event beyond standard medical practice, the matter is a subject for a fair investigation. However, the question of who should be the target of such an investigation, how it should be conducted, and by whom, needs to be asked. Much legal discourse, unfortunately, occurs on a wavelength well beyond the understanding of most people on the planet. It is therefore often impossible to connect legal reasoning with what is to the lay mind known as common sense. Since no one in this country is prohibited from suing anyone over anything, there is nothing to prevent a patient from hiring a lawyer when the merit of a complaint is, to a reasonable mind, patently feeble. When a trivial suit against a pathologist fails, or if a pathologist gets dismissed from the case, it nevertheless stands on his or her record, to be included in every application for a job or reappointment, for at least ten years. Here is an experience of my own.
I was asked to do a frozen section on a barely visible thread from the brain of an adult man. The slide was almost devoid of tissue, and I therefore made no specific diagnosis. Since, however, the case seemed complex, I sent the barely visible material in consultation to a group of national experts, all of whom agreed with my conclusion. The patient returned several months later for re-exploration, when it was discovered that other pathologists, who had participated with a different specimen from the patient, had overlooked something. The patient’s lawyer took the usual broad swipe at every physician in the chart. I regard myself as pretty well trained, but was not psycho-logically prepared for a legal document accusing me of gross, wanton and malicious negligence. The following weeks and months were harrowing. Sessions with my hospital-appointed lawyer provided no comfort as the trial approached. I reiterated that my judgment had been supported by experts in neuropathology, but was told that I should be patient, that I should not worry about the aggressive legal language, that I should allow the thing to play itself out, and that a motion would be made to have me dismissed from the suit. That eventually happened, but I was saddled for the next decade with this needless mark on my record. On behalf of that experience, I allow myself the following paragraph.
Just as death lurks constantly behind the veil of life, so does the spirit of the legal Muse hang in the air where I work. I see it in the eyes of my colleagues, in the way they sometimes express their thoughts, write their words, or think aloud. I see it in the way we record our collective decisions, as if by fusing into one, we somehow ward off the evil eye. I see it in the excessive panels of testing that we perform to protect ourselves from second guessing by Monday morning quarterbacks years hence. I see it in piles of slides commandeered by the law to be sent hither and thither. I see it in the faces of experts who slip silently into and out of view, making their notes, then vanishing into the void. I see it in course offerings designed to teach us how to foil our legal adversaries. I see it in notices from insurance companies, providing risk reduction strategies to reduce our insurance rates. I see it in the alienation from colleagues against whom we may be forced to take a stand when our competing interests clash over events involving a patient we have in common. I see it in the eyes of our residents and fellows, who must know that their scope of learning is stifled by their inability to obtain real-time, advanced responsibilities because of infantilizing medico-legal constraints. And I see it in the suspicion with which we tend to regard enquiries and approaches from the very patients whom we originally set out to help.
The work of the lawyer centers on making convincing and thoughtful arguments out of facts and opinions. There are obvious exceptions to the stereotypical medical malpractice lawyer as brash, self confident, self centered and aggressive. However, even those who are quiet-spoken and outwardly sensitive require a minimum of assertiveness to succeed in the courtroom. To accompany their assertiveness, malpractice lawyers have studied medical concepts and language. Case by case, they absorb our literature, co-opt our terminology, and come to know quite a lot about how we work. In managing a malpractice suit on behalf of a plaintiff, the lawyer seeks any and every conceivable avenue of weakness, real or imagined, in the opposing side and, for this to be done well, he or she has to be not only smart, but also cunning. Cunningness, however, was never a required rotation where I was trained.
For an honest appraisal of the situation, we must acknowledge the role of money, for lawyer, plaintiff and expert medical witness. The physician expert must surely feel a quiet, almost poetic satisfaction at being able to issue a bill at lawyer’s rates, especially if practice income has reached a plateau, is declining, or is restrained by Medicare and other third party payers. I know this feeling because I have responded to its temptation on a few occasions. Lawyers, and the insurance companies they represent hardly blink at being billed hundreds of dollars an hour for one’s opinion. A supportive pathologist is certainly worthwhile to the side that needs one, and the expense is usually a drop in the bucket by comparison to the overall costs incurred by the litigation. It is alluring to be invited into a medicolegal case. For the initial review of slides, one is paid to say whether or not something wrongful has occurred. Further consultations may be brief or long, depending on the situation. For a deposition, and the privilege of being interrogated by the opposing team, one can present an impressive bill. For an appearance in the courtroom itself, and the prospect of being publicly flayed, the sky could be the limit. To an academic pathologist on a fixed salary, all of this represents an opportunity to create a line item statement of the kind that lawyers regularly present. There is no way that one can equate a good medical expert who is honorable and neutral, with an overt crank, except that in both cases, the common fact of the money stokes the fire that keeps the beast of excessive litigation alive. I would like to see legislatures create a body that would stand between the complaint and the initiation of legal action. Such a body, empowered by law, would act like a grand jury, deciding whether there are genuine grounds for an indictment. If knowledge of errors uncovered during this process could be channeled back into everyday practice, without necessarily branding the physician-pathologist as a potential danger to society, we might then stifle the role of money and extract something useful from the exercise, while simultaneously lowering the temperature all round.
Evidence Based Medicine (EBM) stipulates that medical decisions and acts be performed in accordance with knowledge gained through statistical analysis, logic and randomized trials, rather than in accordance with intuitive concepts derived from undisciplined, empirical observations. Only the best data should drive clinical activities. In this connection, it is worth reading an article published in the journal Seminars in Diagnostic Pathology (May 2005), in which Wick et al point out that “biologic-clinical data” show that when any tumor spreads, it does so from the start in a systemic fashion (i.e. to different part of the body all at once). With regard to one type of cancer, they cite authors who have shown that distant spread frequently occurs well before initial clinical recognition of… carcinoma of the breast. In other words, once a malignant tumor has acquired the ability to metastasize, it will do so almost immediately, without having to reach a “critical mass.” If this is true for the scientific-medical community, then the corollary must apply, namely that the general public and the legal profession must be educated to recognize and accept the concept. It cannot be that science and therapy advance in one direction, while the public demands that they run in another. Translation: if a woman’s breast cancer is diagnosed later than she or her lawyer think that it should have been, a simple straightforward argument cannot be sustained to the effect that metastasis could have been prevented had it been recognized three months earlier.
I was talking to a lawyer over lunch one day, discussing a man who had been awarded $100,000 to allay his fear that something bad might happen to him because a pathologist had omitted something from the final report. In the mind of the patient, the fear may have been real, but I will not forget the words of the lawyer: “Believe me, with that money under the belt, the fear will quickly subside. After a year, when he realizes that nothing bad is actually going to happen, the fear will completely evaporate. He’ll invest the money, the money will grow, and he’ll live happily ever after. Cash cures all.”
Postscript: While writing this section (2007), I was notified that I had just been sued. The suit involves a case that never crossed my desk, in which I never saw or handled the slides, in which I had no speaking part, and where my name appears on no piece of paper connected with the diagnosis. Maybe its a case of mistaken identity, but its hard to get a name like mine wrong. See what I mean about that Muse?