A Surgeon's Post-Trial Thoughts
Yes, I was sued. Though I’m now able to compartmentalize the legal action against me, how do you brush aside the fact that someone is attacking you in a very personal and public way? It began with being served the subpoena and seeing my wife’s name listed as a co-defendant. The attack is not only directed at you, but at your family, and that stings at a very deep level.
I imagine medical liability insurance attorneys and claims managers frequently work with surgeons facing lawsuits for the first time. Some have a natural ability to adjust to the new circumstances and respond smoothly and confidently. I think my defense team members would all agree that I didn’t fall into that category! Just after trial, I decided to share some thoughts that might benefit surgeons in the future, surgeons who require more remedial coaching and instruction, as I did. Without extensive instruction and coaching, some of us are virtually “lambs to the slaughter.” I fully appreciate that now that I am sitting at the other side of the experience.
The world of litigation is quite different than what we are used to.
In our training, we are taught to be accountable for complications and missed injuries. And yet, for the most part, accepting responsibility is not equivalent to a deficiency from the standard of care. Indeed, we (as a society) would probably not want surgeons who too easily and quickly deflect accountability and responsibility for adverse outcomes. This principle is deeply ingrained in surgical culture.
With that in mind, physicians become confused when we enter the world of litigation, where we quickly begin to see that an admission of accountability easily translates to an admission of a breach of standard of care.
I’m recalling my university department of surgery mortality and morbidity session (M&M). The process is practically a hazing of surgical residents, who present complications in their medical cases in front of an auditorium of students, residents, and attending surgeons. The presenting surgical resident is berated by attending surgeons for various breaches in management. As a general rule, if the resident quickly admits accountability, then usually the berating is milder. In fact, the decision leading to the surgical complication is usually made by an attending surgeon, not the resident at the podium. All know this, and yet the presenting resident is expected to accept the blame.
The point is, we’re accustomed to being accountable for complications and unaccustomed to having to be defensive. At trial, where the stakes are higher and the setting unfamiliar, the structure of leading and closed-ended questions is unsettling. All our lives, even in unpleasant conversations, we’re used to being able to express ourselves in a certain way. The structure of the “yes/no” questioning in deposition is very strange and disorienting, as is the sequence of loaded questions that we well know will lead us in a bad direction.
The frustration that occurred in the preparation process is like a clash of cultures. My attorney showed some disappointment when I didn’t know small details in the chart. As a physician, things like “possible vs. probable” and “stellate vs. complex” are all clinically meaningless. What I didn’t fully realize is that tiny discrepancies are magnified and used tactically to discredit the witness. I now understand why any irregularity in education or training is dredged up, even if it occurred decades ago. It’s a brutal business! And of course, in mock questioning, things went so miserably. It’s like asking a slow guy to run fast or a short guy to dunk a basketball. It wasn’t that I wasn’t trying; I cannot even now explain why I constantly drew mental blanks in the office during preparation but thought clearly during trial.
Dr. Ron Hofeldt, a psychiatrist and Director of Physicians Affairs at Physicians Insurance, provided me with excellent preparation. It was vital to have a physician’s perspective. He gave useful insights and spent hours on the phone with me, providing me with an overview of the process, as well as useful and encouraging statistics. Right before trial, he spent about three hours on the phone going over what to expect. Ron’s interaction definitely complemented the work of my attorney.
This whole process, over two years since receiving my subpoena, has been challenging. My attorney indicated that many in my situation would have chosen to settle, and I’ll admit that a good part of my enthusiasm for pushing ahead was out of ignorance for the amount of work involved in defending. I had no full appreciation of what lay ahead, or that we could be expected to be fully prepared and then have the trial date moved several times. Without question, it was worth it, and I think I would have felt that way even if the verdict was not in my favor.
I will admit that this whole experience got into my head to some degree and has soured me on clinical practice. I’m sure that’s not an uncommon reaction. I know that the verdict could have gone either way, but the fact that it favored me has restored some faded enthusiasm that I’ve had for my job, which I think I do well. I’m probably going to order a few more MRIs and CT scans occasionally, but overall, I don’t think it will change my clinical practice very much. I’ve tried to be philosophical about it. We get compensated well, and part of that is taking on litigation risk.
But I’m no longer sure what it feels like to be vindicated. In retrospect, I missed an injury. For that, I could not help but feel badly for the patient. But whether it’s a missed injury or a technical or judgment error, such mistakes do not necessarily mean a breach of the standard of care. Once accused, we become so unsettled by the accusation that we don’t want to admit anything… anything!
I have been around physicians who cynically look at all patients as potential plaintiffs. Did going through my lawsuit cause me to take a similar view? For the most part, I can say it has not. I see people at terrible times in their lives, sometimes at the end of their lives, and I always try to be empathetic and understanding of their situation. Fortunately, the litigation process has not changed that for me.
How does that expression go—what doesn’t defeat us makes us stronger?
Paul Inouye is a general surgeon and trauma specialist who has been in practice thirteen years.