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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
My Experience With ‘The Lawsuit Diet’ and Eventual Vindication Harold S. Minkowitz M.D.

I left the operating room after a scheduled two-and-a-half-hour case that turned into an eight-hour nightmare. I arrived home and told my wife: “I kept the patient alive, but I am going to get sued.”

Almost two years later, I received a knock at my door late one winter’s night, and a stone-faced man handed me a notification that I had been served. When I first saw the charges, I flippantly thought they were so ridiculous and not well-founded that I would be dropped from the case. However, as time went on, I realized that this was serious and that my policy limits were the target.

Having been in practice for about 18 years at the time, I had seen many colleagues going through the litigation process. While in an academic department I saw an excellent physician become nervous and unsure in her practice, doubting every decision she made, after she lost a lawsuit. I had been an expert witness for two former colleagues when they were sued. One had said to me that it was the worst time of his life, leaving him feeling like he had been “gang raped.” One of my ex-partners in private practice retired after a lawsuit. He said he did not want to go through the process again. Had I been assigned to the cases in which they had been sued, I am sure I, too, would have been sued. It’s often just a case of being in the wrong place at the wrong time.

I always said that by being involved as an expert witness, I would be prepared should I ever be sued. How wrong I was.As I got further into the case, I would feel my heart race every time my lawyer called or emailed me. A feeling of uncertainty and anxiety was always with me. Whatever I did, the case was in the back of my mind, and I lay awake many a night thinking of the lawsuit.

I prepared for the deposition and it was not too stressful, as I had been deposed as an expert witness previously. The difference was this time I felt my name and reputation were on the line.

At mediation, I got my first taste of what was to come. The plaintiff’s team was smart and well prepared. They presented an excellent case against me. It was at that time I realized they were a formidable force. I would have been happy to settle the case at that time, as I did not know what the outcome of a jury trial would be when up against them. My insurance carrier refused to settle, stating that “You have done nothing wrong – we will keep fighting this.” Although comforting, it was still stressful.

On the morning of trial, the codefendant settled, leaving me as the sole defendant, and the entire defense strategy changed. The stress I felt increased exponentially. I noted the massive team the plaintiff had assembled – four lawyers, a paralegal, an audiovisual person and a number of interns, against my lawyer and his assistant (who had no audiovisual aids).

The comforting words of the judge, who before the case said “Justice will prevail,” were rapidly lost on me after the plaintiff team had the jury and the bailiff in tears after their opening arguments.

In the following two-and-a-half weeks of trial, I did not have one good night’s sleep, and I thought I should write a book titled “The Lawsuit Diet,” as I had lost so much weight. I sat in disbelief as I watched everything from my signature to my character and my entire medical management of the case being repeatedly criticized.

The process is brutal. People who were called as witnesses, who had nothing to lose in the case, told me they were so traumatized by the experience they lost sleep following their cross examination on the stand.

When the verdict was read, and was in my favor, I was so broken and demoralized that I was not excited, happy or able to display any emotion. I sat for a few moments and then left the courtroom.

I was extremely fortunate to have an intelligent, attentive jury. Speaking with them after the case reinforced my faith in the jury system. They comprehended the issues and saw through the case against me. I felt vindicated.

I was very lucky to have a supportive wife, family and friends, with whom I spoke on a daily basis during the trial. Additionally, I had supportive colleagues at work who reinforced that I had done nothing wrong. In addition, they all wanted me to report the plaintiff’s expert witness to ASA.

The legal process is not personal. The intent is to discredit the defendant in order to collect as much money as possible for the plaintiff. Unfortunately for defendants, it is personal. As much as I tried to rationalize the process, it remained a personal attack against me. The process leaves scars – one example is the many months it took before I could drive near the courthouse and not have an overwhelming sense of anxiety.

Consider that I am one of the lucky ones – the verdict was “for the defense.” When people come to hear that I have been sued in a medical malpractice case that went to trial, they always ask me if I had won. I tell them the verdict was in my favor, but I did not win. There are no winners going through that ordeal!

Harold S. Minkowitz, M.D. is Staff Anesthesiologist, Memorial Hermann Memorial City Medical Center, Houston.

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