Avoiding frivolous medical lawsuits

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Avoiding frivolous medical lawsuits

As anyone who was not in a coma was aware, one of the big talking points of the recent American presidential election was frivolous medical lawsuits which drive up the cost of medical insurance.

Frivolous medical law suits fall into two categories.

The first category is lawsuits that have no foundation in fact or law. These are not much of a concern, as they virtually never make it to court.

The second category is lawsuits that end up in a substantial penalty. These lawsuits generally revolve around iatrogenic injury – doctor induced injury. Since iatrogenic injury is responsible for something on the order of 180,000 to 210,000 deaths a year, our goal is to give you some hints on avoiding being a participant in a “frivolous” lawsuit.

Now, keep in mind that medicine, while much advanced over where it was during the American Civil War, is still largely in its infancy. There are many conditions under which someone may die even if there is no error. As an example, this editor’s father went in for surgery at age 90. He was a very high-risk candidate, and there was a high probability that the outcome would be death, balanced by the sure knowledge that without surgery he would be a quadriplegic. At first the surgery seemed successful, and the day after the operation we were told he would be discharged the next day. Sadly, the next day he suffered an embolism, and was dead the day after. While unfortunate for us, this was clearly no one’s fault.

On the other hand, a young woman of our acquaintance – roughly half the age of our father – went in for the same procedure, a cervical laminectomy, and, due to scandalously bad aftercare, died. A lawsuit – which would have been doubtless termed frivolous – would seem to have been appropriate. In this case, however, fairly direct threats from representatives of the medical facility induced the family not to sue.

As an example of a “frivolous” lawsuit avoided, largely by luck, another of our acquaintance was going in for eye surgery, in this case on his RIGHT eye. Due to a delay in the conclusion of the operation preceding his, he was left to wait in the hallway. To kill time, he looked through his chart and discovered that he was scheduled to have his LEFT eye operated on. He brought this to the attention of his nearby aide, every nurse who walked by, the janitor, and, finally, his doctor. Had he not caught this, he would have been functionally blind, and involved in a “frivolous” lawsuit.

With iatrogenic injury being considered by some to be the third leading cause of death in this country, a lot needs to be done before you put yourself, or those for whom you are responsible, into the care of a well-meaning, but not necessarily sober or competent, practitioner of medicine.

For a start, try to find a medical practitioner who at least seems competent (keeping in mind that just because a doctor is your kid brother doesn’t automatically make him an idiot, no matter what your childhood experience leads you to believe). It is neither inappropriate nor foolish to get and check on references, and to ask about failures, as well as successes. When we check on medical backgrounds for those few hospitals prudent enough to actually check the credentials of those they hire, roughly one out of seven is immediately disqualified!

Second, get second and third and fourth opinions until you are satisfied that you have some feeling regarding what might be right for you. When we were studying for our Masters in developmental psychology, we heard a lot of horror stories about misdiagnoses. In one case, a girl complained of stomach pains and withdrew from most school activities. She was sent to the best specialist in New Jersey, who found nothing, and was finally diagnosed as being school-phobic. This may not sound like much, but is, in fact, about two steps away from being locked in a dark closet forever. The third opinion sent her to Mass General, who found the physical problem, which was easily cured. In another case, a boy on a US air force base mentioned to his mother that he had been hearing voices. He was diagnosed as having childhood schizophrenia – another lock’em-in-a-closet problem. The third opinion discovered it was treatable epilepsy.

Third, do a lot of research. Nobody is going to have more interest in you and those under your care than you, and little medical literature is beyond your comprehension. Keep in mind that diseases like porphyria that are rarely seen are not generally thought of as being the problem, and if your doctor has not kept up with the literature you may end up with the correct diagnosis. Obviously some doctors are competent, current, and innovative, and do think outside the box. But, even so, don’t rule yourself out as a researcher and diagnostician.

Finally, try to minimize possible bad consequences. We recall being told that roughly one in three hospitalizations comes from unfortunate – and preventable – drug interactions. Make sure the pharmacist knows everything that is being taken, and is checking to make sure that the combination won’t kill you. We knew one woman who had an allergy to some medicine who would query the nurse about what she was being given, and, if she had any questions whatsoever, refused to take the pills without her doctor checking them first.

By the same token, if you go in for surgery, make sure that it is clear, no matter how drunk your surgeon might be, what is being operated on. When a friend of ours went in for knee surgery – we had an acquaintance who came out of minor arthroscopic knee surgery dead – we recommended that she write “operate on right knee” on her stomach, and “operate on other knee” on her left knee. She said that this was silly and insulting to the medical

staff. She was astonished when, just before her operation, the nurse wrote “operate on other knee” on her left knee. Since many frivolous lawsuits involve operations on areas other than what was specified, making sure the busy surgeon knows what needs to be done is neither insulting nor silly.

Equally, if something seems radically wrong – like the doctor appears obviously drunk or incompetent, consider delaying surgery until conditions are better.

With some luck, you, and those under your care, will go through life with no serious contact with the world of modern medicine. And, if you do, the likelihood is very, very, very high that the interaction will be uneventful and satisfying. But the exercise of due diligence in this arena can help assure a happy outcome in those rare cases where you face needless risk.

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