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The American Society of Anesthesiologists is an educational, research and scientific association of physicians organized to raise and maintain the standards of the medical practice of anesthesiology and improve the care of the patient.

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N. Martin Giesecke, M.D., Chair

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July 1, 2013 Volume 77, Number 7
A Malpractice Marathon: One Doctor’s Tale Anonymous Author


When asked to contribute to this feature, this author was hesitant to share his story. He wrote an informative and worthwhile account of his experiences, so we honored his request for anonymity.
– Mary Ann Vann, M.D. Task Force on Wellness

“Nobody likes a show off, but that fact doesn’t seem to deter anyone!”

We all know “that guy.” The one who brags about his kid’s game-winning home run, his profitable stock trade or the deal he got on his new car. “That guy” never mentions the bad stuff – the strikeout, the losing stock trade or the details of being “ripped off” by the used car salesman. Those stories are quickly buried, existing only as skeletons in his closet. The skeleton in my closet is a malpractice case. I have not attached my name to this article because part of me is “that guy,” the one who hides the bad stuff.

My story begins on a Friday in 2003. I was in my fifth year of private practice, and I made a mistake. I promptly recognized it, disclosed the mistake to the patient’s family, apologized and did everything in my power to fix it. Ultimately, the patient made a full recovery from the mistake. Nevertheless, what mattered was the fact that I made a mistake. Several months later, I was served with a subpoena indicating a malpractice lawsuit. Events proceeded in a typical fashion from there. Expert witnesses were obtained, and a discovery phase of the trial went on for more than a year. My deposition was an all-night affair having little to do with gathering facts. Instead, it was a test of mental endurance, with the plaintiff’s attorney attempting to exploit moments of mental fatigue, hoping to capture a careless phrase that could be used against me.

In 2006, it was time for the trial – a big moment. This was destined to be a tough day. I knew that I would be humiliated by the public discussion of my flawed care. There was no plan to defend my mistake – it was indefensible. However, like many medical errors, my mistake didn’t occur in a vacuum. There were circumstances that led to it, and the trial represented an opportunity to outline the misleading yet reasonable assumptions that led to the mistake. We sought to highlight the fact that, once the mistake was recognized, proper steps were initiated to facilitate the patient’s full recovery.

In formulating our defense, we planned to display what I believe to be the truth – the patient’s family was financially stressed, and the error represented an opportunity to obtain a financial windfall. From the perspective of the plaintiff, the patient’s clinical outcome was irrelevant. I had faith that a jury would see the truth and would come to a fair decision for both sides.

The first day of the trial involved jury selection and a last-minute debate to clarify three legal motions defining fair topic for discussion for the trial. I thought our preparation for the trial was sufficient, and to this day, I do not know why these procedural issues were left to the last minute. To our dismay, the judge ruled against the defense on all three motions. My big moment never arrived. I received a phone call that evening informing me that the case had been settled. The decision was made exclusively by the hospital, pushed by the unfavorable rulings from earlier in the day. No day in court. No chance to tell my story. Just a phone call stating the trial was done, and there was a bill to pay.

Following this, based strictly on the financial cost of the settlement, the state initiated an independent investigation into the case, and specifically, my capabilities as a physician. My medical license was in jeopardy. I worked with yet another attorney and endured several more years of concern. Multiple appearances in front of licensing boards were required until 2012, when the state’s review was complete. Nine years had passed since the event.

I look forward to 2017, when I will finally be able to fill out credentialing applications without having to mention this case. Only then I will to be able to say that the lawsuit is completely behind me. But this will never be behind me. The mistake has become a part of me – a scar that may fade, but will never disappear. Ultimately, I was the last line of defense in protecting the patient from harm, and I failed. That fact will always haunt me. Ten years later, my professional reputation remains stained by this mistake – a scarlet letter sewn into my scrubs.

Google my name and guess what comes up first? A history of litigation and a red exclamation point, highlighting the reprimand applied to my medical license.

I wish to give some advice based on my experience. When malpractice litigation is directed toward you, do not underestimate the opponent. Do not brush off the complaints as “frivolous.” It is going to be more than a mere inconvenience. Assemble a dedicated defense team, and play to win. Recognize that your opponents are vicious, and are working on a full-time basis trying to get all they can. They are organized and are fighting with nothing to lose.

It is likely the plaintiffs will utilize theater, emotion and histrionics to make their case. Although these tactics may not be convincing to a community of data-driven physicians, they can be convincing to participants of a jury. Prepare for this.

Win, lose or settle, the malpractice experience is horrible. Litigation can preoccupy a physician for years, and the psychological sequelae can extend far beyond the actual litigation. It’s a scene that is best avoided. Patient safety initiatives may offer some protection, but there is no guarantee. Practice safe medicine, and do not take chances. Society clearly has little tolerance for medical errors.

The legal arena is a tough place. There is no formula that ensures a favorable outcome. Assemble the best legal team possible. Give trial preparation your best effort. When the trial is done, irrespective of the outcome, at least you will know you gave it your best shot. And then ... move on. It’s done.






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