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IN DEPTH: Inside the Medical Malpractice System Comments on “The Malpractice Mess” and “Bad Medicine”
Atul Gawande
The New Yorker, November 14, 2005
A recent article in The New Yorker by Atul Gawande, “The Malpractice Mess,” and an accompanying web interview investigate the shortfalls of our current malpractice system, particularly the high financial and emotional tolls it exacts on both patients and providers. In an attempt to “[get] beyond the vitriol of the doctors on one side and the lawyers on the other,” Gawande examines two cases in which doctors figure on both sides of the debate.
In the first case, he writes of Barry Lang, an ex-orthopedic surgeon turned plaintiffs’ attorney who represented the estate of Barbara Stanley, which sued dermatologist Kenneth Reed for failing to properly treat a cancerous mole. The case went to trial six years after Mrs. Stanley’s death and ended, as 70 percent of all malpractice cases do, with terms favorable to the defendant. Illustrating the inherent inefficiency and costliness of our current system, this case involved “seven years of litigation; more than twenty thousand dollars in payments to medical experts; the procurement of bailiffs, court reporters, a judge and two-hundred-and-fifty-dollar-an-hour defense attorneys; time on an overloaded court schedule; and the commandeered lives of fourteen jurors for almost two weeks” – not to mention great torment and financial expense to Mrs. Stanley’s son, Ernie.
Dr. Lang’s case demonstrates how our current system does a poor job of identifying and compensating actual victims. When he was a surgeon, Lang faced three malpractice suits himself. In two of these cases, the patients had suffered “known, often unavoidable outcomes.” Lang’s insurance company settled anyway because, in the first case, it was deemed cheaper than fighting the case in court, and, in the second case, because the company was not sure who would prevail at trial. In the third case, Lang readily admits that he was in error – but in this instance, where a man died, the settlement was only for $400,000, just $100,000 less than the settlement amount of the second case. On this, Gawande writes, “The cases that Lang faced as a doctor … seemed to … epitomize the malpractice debate. Two of the three lawsuits against him appeared unfounded, and, whatever Lang says now, the cost in money and confidence to our system is nothing to dismiss. Yet one of them concerned a genuine error that cost a man his life. In such cases, what do doctors believe should be done for patients and their families?”
On a related note, Gawande notes how our current system limits most victims’ access to medical justice. Because Lang’s expenses usually range from $40,000 to $50,000, he would rarely take a case – a dental case, for example – which would garner an award less than that. Also important to attorneys like Lang are the plaintiffs themselves. Gawande writes, “Someone might have a great case on paper, but Lang listens with a jury in mind. Is this person articulate enough? Would he or she seem unreasonable or strange to others?” Vernon Glenn, a successful trial attorney from South Carolina argues that “[t]he ideal client is someone who matches the social, political, and cultural template of where you are.” A recent plaintiff, for example, whose husband had died as the result of medical error, and for whom Glenn successfully secured a $2.4 million settlement, “was articulate and attractive, but not too good-looking as to put off a jury. She wasn’t angry or vengeful, but was visibly grieving and in need of help.” Of her case, Gawande continues, “If the family hadn’t spoken English, if the husband had a long history of mental illness of alcoholism or cigarette smoking, if they’d been involved in previous lawsuits or had a criminal record, Glenn might not have taken the case.”
Many people, Gawande argues, file claims simply to get answers. An example is the case of Dr. Bill Franklin, a physician at Massachusetts General Hospital, whose son suffers from numerous lifetime injuries because a chest tumor was not properly treated by Mass General upon first diagnosis. Having been sued himself, and because the error occurred in his own hospital, and involved his colleagues whom he liked and respected, Dr. Franklin wanted to find another method – outside of suing – to figure out how this happened. But when he spoke with the hospital director about conducting “a small investigation into how the mistake had been made and how it might be prevented in the future,” and also to broker a settlement for his son’s family, “[t]he director told him that he couldn’t talk to him about the matter. He should get a lawyer, he said.” Gawande continues, “Was there no other way, Franklin wanted to know. There wasn’t.”
The problem, as Gawande sees it, is that “[m]alpractice attorneys are hardly the most impartial assessors of care, but medicine has offered no genuine alternative – because physicians are generally unwilling to take financial responsibility for the consequences of their mistakes.” Ultimately, Gawande argues, a system of medical justice should encourage doctors to take responsibility for their mistakes, and should compensate those injured by error – but “litigation has proved to be a singularly unsatisfactory solution” toward these ends. “It is expensive, drawn out, and painfully adversarial. It also helps very few people. … In the end, fewer than one in a hundred deserving families receive any money. The rest get nothing: no help, not even an apology.”
Special health courts, with their reliance on judges and neutral experts, would make our malpractice system more efficient and fair – for both patients and providers. More victims would be compensated, and the rulings of judges would provide more clearly defined acceptable standards of care for doctors. Moreover, by allowing doctors to candidly discuss their mistakes, doctor-patient relationships and the overall quality of care will improve.
Read the web discussion
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