January 1, 2013
Volume 77, Number 1
Observations: A Frightening Letter
N. Martin Giesecke, M.D. Editor, ASA NEWSLETTER
When first viewed, the certified letter did not have much to bring itself to my attention, other than the fact that someone in my office had signed for it at delivery. Not until it was opened and I read the first page did I realize that I had just been served – I was being sued for medical malpractice. I still recall the shock that struck me then. When the significance of the summons sank in, I became anxious
and the acid started to burn in my stomach. Despite practicing evidence-based medicine, I had become one of the 20 percent of Texas physicians who were involved in a medical liability suit.
The timing of this suit was interesting, in that I was named a defendant only after Texas votes passed tort reform. In the 2003 state legislature, Texas lawmakers passed a bill that would add Proposition 12, tort reform, to the Texas constitution. Voters approved of this proposition at an election in September 2003. The new law capped non-economic damages at $250,000; this action made less meritorious suits a higher-stakes game for the plaintiffs and their legal teams.
What partially shocked me was the specified damage request of $5 million. Having kept myself informed of the specifics of Proposition 12, it wasn’t until later that I understood how a suit that I found out about after passage of tort reform could be requesting damages greatly in excess of those approved by the voters of Texas. In my case, the issue was that I was not part of the original suit. That suit was filed well before tort reform in Texas. However, since the case involved a pediatric patient, the liability continued to the age of majority (21 years old in Texas), plus two years. Only after the initial procedures of the suit had occurred, including depositions with the surgeon and the hospital as defendants, was my name added to the litigation. But I did not learn about this legal issue until later.
After reading the summons, I sought counsel from my boss, Arthur Keats. The first thing he did was contact our medical liability insurance carrier to start my defense. He then asked me if I recalled the case. According to the documents, it had occurred many years earlier and I had no specific recall of the incidents surrounding the case. To my mind, the supposed claims of misconduct were unwarranted and I felt as if I was under personal attack.
Arthur suggested that I begin the process of reviewing the medical record to become familiar with the complaints against me. Doing so was not the easiest task. Even though I was still on the medical staff of the hospital, I apparently had no right to review the chart. That review would have to wait until my legal team could gain a copy of the record as part of the discovery process for my defense.
When I was finally able to see a copy of the chart, I found a note I had written when transferring the patient from the O.R. to the post-op ICU. Luckily for me, the note was very detailed and described several issues that had arisen during the care of the patient that were out of my control. It is interesting that writing such a meticulous note was an action learned in my residency training at UT Medical Branch in Galveston. My chief at the time, James Arens, used to tell us that in the event we had a bad outcome, or suspected that one would develop after our care, we should write ourselves a note. That note would spell out the situation as it occurred and document the treatment we gave and the reasoning behind those treatment choices. We were to put that note in a safe place, so that in the event of a lawsuit, it could be given to the defense legal team and be used to refresh our memory of the incident.
As my career evolved, I kept a handful of those notes. But mostly this evolution resulted in my practice of writing a thorough transfer-of-care note. These notes essentially outlined all the issues that had arisen during a case and explained what I had done to treat those situations. It was this latter note that I found in this patient’s chart. It did serve to refresh my memory, as even more salient points critical to my defense were able to be raised. Without such a note, my situation would have been much more worrisome, from my point of view.
The litigation process dragged on and depositions were taken. Again, I considered myself in a good spot for my own deposition, as I had participated in several medical liability cases as an expert witness. Sitting in front of a group of lawyers, half of whom were hostile (and they called me a hostile witness, at times), prepared me to testify during my own deposition at the hands of the plaintiff’s lawyers. Even the videotaping was interesting. Of course, I was in a suit and tie. Since the plaintiff’s lawyers were not on the video, they were there in blue jeans and knit, short-sleeved shirts. Talk about a way to make a person feel uncomfortable.
Agonizing months passed with little or no apparent movement. Finally, a court date was set. The judge, in an attempt to lessen the strain on the court system, requested both parties participate in mediation. The case was settled in that mediation and now I am a statistic in the NPI database. I have been fortunate not to be served again since. Maybe the tort reform in Texas has played a part in that. But I’ll never forget that frightening letter I opened that day in my office many years ago.