Why Your Doctor Is Afraid of You
How fear of lawsuits and “defensive medicine” are changing your healthcare.
To err is human, the saying goes, and it’s par for the course in our workdays. But what if your on-the-job slip-up cost a woman her breast or a man his perfectly good limb? What if the wrong call during a patient’s difficult labor consigned a newborn to a lifetime of suffering? These nightmare scenarios all have happened to doctors in Westchester, where mistakes can incur million-dollar fines.
Last July, Dr. Keith Edwards, an internist in Mount Vernon, was found liable for $27.3 million in medical expenses, rehabilitation, and pain and suffering for failing to diagnose a spinal tumor until after his patient suffered irreversible paralysis. Shania-Gay Ffrench, 30, of Mount Vernon, visited Dr. Edwards a decade ago complaining of severe pain that radiated down both legs. The doctor did not order the scan that would have revealed the spinal tumor, nor did his records note that she had visited the emergency room between appointments. Calls placed from the ER to Dr. Edwards to discuss the urgency of her condition were not reflected in the medical records.
“We never argued that Dr. Edwards was anything less than a fine gentleman and a fine doctor,” says Ffrench’s lawyer, Christopher Meagher of Meagher & Meagher, P.C. in White Plains. “However, he made a grave mistake in this circumstance.”
Total damages against the defendants pushed the verdict to nearly $48 million, a record high at one time. In December, Meagher helped secure a new record, a $61 million verdict against Dr. Carla Eng-Kohn, an OB/GYN in Mount Kisco and Northern Westchester Hospital. Meagher’s clients allege that their son sustained brain damage during his delivery, leading to severe health problems that will plague him for life. These suits were two of some 85,000 medical malpractice cases filed each year in New York State.
With about 2,000 practicing doctors in Westchester County—covered by $2 billion worth of insurance—medical malpractice suits amount to big business. The experience, and even the prospect, of getting sued for bungled patient care deters medical students from becoming doctors, drives some physicians away from the field, makes doctors shudder when passing a courthouse, and forces doctors to order unnecessary tests in a “cover-your-tail” failsafe called defensive medicine. For many physicians, malpractice premiums are their biggest expense—trumping overhead, salary, and continuing education. According to Jon Schandler, president and CEO of White Plains Hospital Center, many neurosurgeons say they work half a year before breaking even with the cost of their premiums.
“An allegation of malpractice is like getting sued for molesting a child,” says Dr. Robert Ciardullo, a plastic surgeon in White Plains. One doctor who requested anonymity likened his deposition to “getting raped” by the plaintiff attorney. In December, the New York Times ran a piece by a Boston internist, Dr. Joan Savitsky, who received a summons in 2004 after the death of a cancer patient. “It was as if a noxious subtle film had settled all around,” she wrote of the experience. “I loved my patients and my practice, but this made me wary and mistrustful of them—and of myself...the lawsuit felt like an assault. Being sued, even with assurances that ‘it’s nothing personal’...was in fact deeply personal. The experience was devastating.”
Amid the fractious debate over healthcare reform, certain members of Congress seek to cap damages in malpractice suits to curb healthcare costs. The Congressional Budget Office estimates such tort reform would save $5.5 billion dollars per year—a considerable amount but just 0.2 percent of the trillions spent on healthcare. At February’s healthcare summit in Washington, Senator Richard Durbin of Illinois told of a woman whose face had been burned and disfigured by oxygen that ignited during routine mole-removal surgery. In the same week, Michael Jackson’s physician was charged with manslaughter for prescribing as a sleep aid a dangerous anesthetic, propofol, which was ruled a key factor in the singer’s death. Meagher recounts a Westchester case in which a breast-cancer patient developed E. coli after a lumpectomy, largely because her surgeon and her doctor failed to coordinate treatment. “The surgeon didn’t bother to call for the results of her cultures, and the doctor didn’t prescribe medicine for her infection,” he says. “The failure to simply pick up a telephone strikes me as pure arrogance.”
Doctors counter that every procedure or diagnosis carries the potential for complications; even Bill Clinton, in the best of hands, experienced bleeding after his heart surgery. Lawyers crying “negligence” can spook doctors into turning away high-risk patients in serious danger. “I used to take the greatest pleasure in removing melanomas,” says Dr. Ciardullo. “But now my practice is limited to cosmetic surgeries and reconstruction after cancer; it’s just too risky to treat and take on patients with melanomas.”
In hindsight, a malpractice suit often starts in the doctor’s office as a routine and random doctor-patient encounter. “I’m always mindful that anybody on my operating table can drag me to court,” says Dr. Lee, a neurosurgeon in Southern Westchester who declined to give his first name. Dr. Lee pays an average of $250,000 annual premium and says he gets sued about once a year.
“An attorney once told me that we doctors should be grateful to the tort system; otherwise, we’d get shot by our patients,” says Dr. Kira Geraci, an allergist in Mamaroneck and past president of the Westchester County Medical Society, which includes physicians in such “high-risk” disciplines as obstetrics, emergency medicine, heart surgery, and anesthesiology—all hotbeds of litigation. Although her specialty ranks as low-risk for liability suits, Dr. Geraci says she is mindful that “any of my patients might sue for any reason, especially a severe allergic reaction from a shot.” She adds, “If a patient has a bad outcome, we get dragged to court.”
The joke about doctors’ chicken-scratch turns to black humor in malpractice cases, when evidence often takes the form of medical records. Plaintiff attorneys work with experts to build their case from these records, linking a doctor’s deviation from a standard of care with the patient’s injury or adverse outcome. “The plaintiff has the burden of proof to show there was a deviation from accepted medical practice that caused him injury,” says Christopher Terzian of Bartlett McDonough Bastone & Monaghan, LLP, in White Plains, who defended Dr. Edwards.
Plaintiffs typically sue many doctors and hospitals in the same lawsuit, to yoke multiple insurance companies into sharing the burden of damage. “I often get sued every time we deliver a baby at twenty-five, twenty-six weeks,” says Schandler. “The issue might relate to prenatal care and have nothing to do with our NICU or doctors. But the lawsuits are inevitable.”
Doctors who dispute charges of malpractice may find themselves between a rock and a hard place: too proud to settle and appear to concede wrongdoing, but terrified by the courtroom—and the scourge on their reputation. Beyond a trial’s media coverage, a verdict of malpractice becomes a black mark on a physician’s public record, annotated on such sites as nydoctorprofile.com.
“A doctor may decide he wants to settle because of liability, or because he’s had nightmares about going through trial—can’t eat, can’t sleep,” says one lawyer. “But to the insurance company, it’s just a horse-track bet that weighs the odds of winning versus losing.” Hospitals, if and when they settle, do so quietly. “If we settled regularly, the plaintiff attorneys would go trolling for cases at our hospital,” Schandler says. “You can’t come across as an easy mark.”
Many doctors admit to hiring private attorneys to pressure carriers into settling cases, not always successfully. “If the insurer’s on the hook for damages, they sort of have to call the shots on the defense,” says David Hyman, professor of law and medicine at the University of Illinois.
The Medical Liability Mutual Insurance Company, a major carrier for New York physicians, is owned by its physician policy holders, with typical coverage limits of $1.3 million per doctor. Its vice president, Ed Amsler, says the company closes more than two-thirds of its cases without payment to the plaintiff. “Our philosophy is to defend actions not meriting a malpractice suit, while compensating those who have actually been injured as a result of negligence,” he says. “Any approach that involves settling cases for financial reasons, rather than defending them on merit, conflicts with our core values.”
Once a case advances to the courthouse, doctors say they must prepare mentally for an ugly confrontation, an attack on character and credentials. But are plaintiff attorneys truly mortal enemies of doctors? Or can they respect a physician as a “gentleman” who also happens to be guilty as sin?
“People associate malpractice with the intent to do harm, but that’s seldom the case,” Meagher says. He chalks up most mistakes to the exigencies of a busy practice: doctors can get distracted when called away, lose their train of thought, or misplace notes that might have guided decision-making or jog memory when 100 patients report to the exam room each week.
Nonetheless, mistakes can rise to the level of malpractice, defined by the court as “a departure from accepted standards of medical practice: action (or inaction) by a doctor that a reasonable practitioner would have taken, or refrained from taking.” According to Meagher, “The best analogy is a driver distracted at a red light or stop sign. Running the light might not matter. But sometimes you cause an accident.”
Defense attorneys argue that juries are ill-equipped to distinguish between a human error and an act of malpractice—and that knee-jerk reactions of pity or horror at the adverse outcome can garble their reasoning even further. That’s why trials are fraught with peril for the doctor, negligence or no.
“Juries may see an empathetic, little old lady wronged by an arrogant, wealthy doctor,” Dr. Ciardullo says. He adds that plaintiff lawyers have no scruples about misleading the jury with “junk science” and so-called “expert witnesses” on the dole. “They’ll grandstand for jurors, put on a show,” he says. “These cases don’t hinge on facts.” A Scarsdale doctor who prefers to remain anonymous describs how a chatty, shapely plaintiff who had suffered a stroke was told to stay away from court, invisible to jurors; her appearance was giving the lie to her lawyer’s description of a crippled, helpless, and tongue-tied woman.
Defense attorneys will drill doctors on how to keep their cool on the stand, where the plaintiff’s attorney will hurtle questions like grenades. Another doctor, speaking anonymously, recalls how his attorney advised him to keep his answers brief and relevant, not to embellish. To drive home the point, he asked his client: “Do you have a watch?”
“Oh,” the doctor replied. “It’s noon.” The attorney shook his head. “That’s not what I asked.”
“Cases can percolate in the system for up to five years,” says Dr. Michael I. Weintraub, professor of neurology and internal medicine at New York Medical College and an expert in medical legal issues. “Memories fade, details get fuzzy, and most of the specifics are gone for a doctor. But the plaintiff and families develop sharper memories of what happened, and lawyers seize upon that.”
When the plaintiff attorney reaches the climax of his morality play—often pitting rich bastard against hapless victim—juries can feel compelled to render “runaway verdicts” of seven or eight figures. “Juries assume they’re giving away an amorphous insurance company’s money—funds that won’t make a dent in the doctor’s deep pockets,” Amsler says. “But a verdict awarded isn’t always collectible.” Insurance providers and appellate courts each impose ceilings on the plaintiff’s ability to collect, although plaintiffs do have the option of going after a doctor’s personal assets. “In my office, we don’t resort to that measure unless the doctor refused to consent to settle,” Meagher says.
“In an above limits case, the jury is mainly there to determine liability,” Hyman says.
The culture of malpractice has driven up insurance premiums for Westchester physicians to $226,000 for neurosurgeons and $138,000 for OBs, according to Amsler. “It’s a staggering expense,” he says—one that forces doctors to practice “defensive medicine,” ordering a full battery of tests for even minor issues to cover their tails. “Many doctors don’t want a lawyer wagging his finger in their faces for not ordering that one test,” Dr. Ciardullo says. The tremors of defensive medicine may even spread to medical school, where future doctors shy away from such minefields of litigation as obstetrics. “Our tort system has destroyed the OB field by suing for millions for a baby who’s less than perfect,” Dr. Geraci says.
Dr. Lee says defensive medicine tacks 10 percent onto his fees. “If I don’t order every MRI and CAT scan under the sun, I’m screwed,” he says. “I can’t take that one-in-ten-thousand chance I’ve missed something. And even in the best of care, a perfect outcome is impossible.”
Hospitals also play defense, often by giving the riskiest cases—ones that demand the expertise of a seasoned doctor—to physicians fresh out of residency. Last fall, a study from New York Medical College in Valhalla found a link between the density of attorneys in a given area of the country and the prevalence of medicine-resistant bacteria. The reason? Physicians, dogged by the threat of malpractice, tend to prescribe antibiotics in excess, nurturing colonies of new bacteria in hospitals.
“Doctors are practicing in fear, and their emotions frequently prevail over reason,” says Dr. George Sakoulas, infectious disease specialist at NYMC and lead author of the study. “Out of risk aversion, doctors defensively prescribe unnecessary antibiotics, which lead to more resistant bacteria in the hospital.”
Between the crippling cost of healthcare and the erosion of trust between doctors and patients, it’s possible that no one truly “wins” a malpractice suit—even a plaintiff who’s collected damages. Victims of negligence, a physician error, or a glitch in the system have no recourse to urge doctors and hospitals toward improvement, or to provide a so-called teachable moment. “There’s no peace of mind that we’ve learned from our mistakes or patched the glitches,” says Dr. Geraci, whose practice maintains an open-door policy for patients to register complaints, concerns, and grievances. “Patients should be able to talk to someone within our office. Why should we bring in tort attorneys to rile up patients and set off the blame game?” Doctors and hospital need to self-correct, she says; but it won’t happen as long as owning up to one’s mistakes is tantamount to scrawling “SUE ME” on her forehead.
Adapting a customer-service approach, hospitals such as White Plains aim to assuage disgruntled patients themselves. “Each time there’s an incident—which is rare—we have the medical director and doctor meet with the patient and family for a discussion,” Schandler says. “If we think it deserves compensation, we’ll offer it. Many patients insist on getting a lawyer, but that’s their choice.”
And doctors’ victories scarcely feel jubilant. “I fight these cases tooth and nail, but even if I ‘win’ on merit, I’ve lost two weeks and I’ve walked away with nothing,” Dr. Lee says. “Still, I’d rather bring it to the mat and waste two weeks than pay off someone else’s blackmail.”
Melissa Pheterson has spoken with Westchester doctors about such topics as their most challenging cases and advanced medical breakthroughs. She lives in Rochester and covers health, fitness, and nutrition for iVillage/NBC and Gannett News—while filing up-to-the-minute reports on her newest passion, baby Samuel.