Sunday, September 22, 2013

The Real Malpractice Problem

Had an occasion recently to talk to a bright young doctor about malpractice. He didn't know, for one thing, that it's harder to sue doctors than most anyone else. You have to hire your own expert witnesses, as though you are going to trial, who will testify in your favor, and have a mediation session where they will lay out your case. Local doctors aren't eager to do this, so you may have to go out-of-state. All told, the cost estimate for pre-suit activity was around $50,000, and that was twenty years ago.

That's when CJ fell and broke his hip. When he got to the emergency room they whisked him away for X-rays, told us nothing was broken and we should take him home. Well, this was a problem because he couldn't stand up, much less walk. They reluctantly admitted him, put him in a room on the stroke patients' hall. Well, yes he had had a stroke 15 years before that kept him from talking much, but he had been walking with just a bit of a limp. He walked the dogs until they were exhausted, morning and evening. Well, the doctor thought that some physical therapy would help.

After a couple of days I went in during his therapy session, and they were trying to get him to walk between parallel bars. He couldn't take a step. As I watched, the therapist poked him with a stick, and his leg twitched. CJ was crying, so I told them to put him back to bed. I asked the therapist about the stick, and was told it was an electric stimulator. A cattle prod!

I found the doctor in charge and told him that this was cruel and unacceptable. He replied that they had run out of options, that CJ was not cooperative, and we should just take him home or to a nursing home. Our daughter, June, suggested they call a meeting with the doctors, nurses, and staff who had been working with him, and they did. She asked where the orthopedic doctor was, and they replied that he hadn't needed one because no bones were broken. Well, they did call one, who found that his hip was snapped in two. The only X-rays taken in the emergency room were of the chest.

After getting a new hip and months of physical therapy, CJ was walking slowly, now with a cane. I worked part-time for months, son Jason took a semester off from college, but things would never be the same. We visited several lawyers we knew who were specialists in medical malpractice. Each of them declined to take the case. The reason? Negligence was clear, but it was "garden variety negligence," meaning that it happens so often as to be predictable. Also, he was already disabled, so we couldn't sue for lost income. My lost income, our son's lost semester, CJ's lost ability to do things like walking the dogs, all fell under the "too bad" rule. Even if a jury felt especially generous, it was unlikely that an award would reach the $50,000 it would cost to file suit, much less the costs to go to trial.

So the next time you hear that medical costs are soaring because of greedy lawyers, put on your skeptical hat. The next time you see glossy ads for doctors or medicines, do not get sucked in. The next time you hear that doctors are leaving their practice for fear of lawsuits, get the facts. Just don't depend on your insurance salesman to give you the straight stuff. He makes a living off scaring doctors.