When Good Doctors Make Bad Decisions—The View from the Jury Box

3/26/10Follow @wroush

On March 2, I reported to Suffolk County Superior Court for jury duty, certain that I’d be let go after my day of service or excused, just like every other time. So it was a bit of a shock to find myself seated, by the end of the day, as Juror No. 14 on a medical malpractice trial that, according to the judge’s prediction, would take until March 23. (She was exactly right, as it turned out.)

I won’t dwell here on the irony of being forced to spend most of Mass Mobile Month immobile in the jury box, separated from my laptop and unable to use my cell phone. Being part of the 14-member jury on a three-week civil trial was no more of a hardship for me than it was for the other jurors, so I’m not going to complain. But I do want to share a few observations from the experience—some encouraging, some not. I’ll try to restrict myself mainly to talking about subjects related to technology and medicine, which were the big themes in the case.

The trial, in a nutshell, was about a health emergency that went undiagnosed far too long. The plaintiffs were an elderly church pastor from a Boston suburb and his wife. (I’m not going to use their names.) The pastor had a history of back trouble, but nothing incapacitating. The weekend before Thanksgiving in 2003, he began to experience unbearable back pain, and was taken to the ER of a local hospital (which I also will not name—if you want to go dig up the details, I’m sure there are public records).

Doctors there quickly determined that the pastor had a streptococcal infection in his bloodstream and started him on the appropriate antibiotics. They began a series of tests intended to locate the source of the infection and the pain. But the agony continued, and it wasn’t until five days later, after the pastor had been transferred to a prominent Boston hospital, that its true source was discovered.

An imaging study showed that the infection had taken root in the pastor’s spine in the form of a large epidural abscess, a pocket of pus inside the spinal canal between the bone and the dura, the outer lining of the spinal cord. As soon as the abscess was detected, surgeons operated to drain the pus. But by then it was too late. The abscess had pinched off the pastor’s spinal cord, causing permanent nerve damage. The pastor, now 75 years old, can’t walk on his own and suffers from a range of other disabilities.

The plaintiffs’ attorney was an outstanding Boston trial lawyer and medical malpractice specialist named Gregg Pasquale, of Keches Law Group. I’ve since learned that in the 1980s Pasquale was an assistant district attorney in Middlesex County, where he prosecuted murder cases. His fiery zeal was evident every day in our courtroom. Pasquale argued that the defendants in the case—a radiologist from the suburban hospital and two doctors from the Boston hospital—should have done more to diagnose the pastor’s problem.

One of the many difficulties in the pastor’s case was that the abscess didn’t appear on the standard MRI exam ordered by the ER doctor at the suburban hospital. But Pasquale argued that … Next Page »

Wade Roush is a contributing editor at Xconomy. Follow @wroush

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  • Dan G

    Great article, Wade! The perspective on “no fault” malpractice is, I think, especially relevant as we look at what the HC bill is, and is not. Malpractice law seems to have evolved out of a failure by doctors to police themselves… to out the bad doctors… in the Post-War era, as well as by a failure of state boards to take away licenses in a timely (and cross state lines) way. Thus, the civil law seems directed at the individual doctors even though, as you rightly discussed, some poor outcomes are failures of the system, not negligence of the physician. The right answer then is to have _both_ no-fault and better policing/licensing of physicians. For the latter, perhaps technology provides the answer: transparency in doctors’ records of outcomes (moderated of course to ensure correctness) would enable the market to penalize poor performance in ways regulation could not. What if you could get a report on prospective physicians as easily as you can get a Carfax or your credit report?

  • http://www.xconomy.com/author/wroush/ Wade Roush

    @Dan G: Thanks so much for your comment. I don’t know much about the evolution of malpractice law, but if it was originally intended to improve medical care through the threat of punishment for individual doctors, I think it has utterly failed. Instead we’ve ended up with a healthcare system in which doctors often order unnecessary tests defensively, leading to false positives (as well as false negatives) and driving up costs for everyone. I think you are completely right that the system for compensating victims of iatrogenic injuries needs to be separated from the system for policing bad doctors.

  • http://www.xconomy.com/boston Bill Ghormley

    Great article — your point on technology reminded me of an experience I had as a ” jurist” surrogate. I was a subject in a “video market research” study for a medical malpractice case that put 50 strangers in a large hotel ballroom with dimmed lights and large monitors. On the screens we watched as the attorneys presented the case as though we were in the jury box.
    They used computer graphics — charts, anatomy diagrams, and statistics to make their points. Once the presentations were made, the audience was questioned via response devices, like today’s game controllers, to find out how convincing the presentations were, what their verdict would be, and how much they felt the damages should be, if any. This research allowed the attorneys to hone their presentations so that they might present to the “real” courtroom more effectively.
    Did they use any video testimony or computer-aided presentation materials in your trial?
    Thanks for sharing your experience — welcome back!

  • http://www.xconomy.com/author/wroush/ Wade Roush

    @Bill Ghormley — That’s fascinating, Bill. The plaintiffs in this trial did present one expert witness who testified from Pittsburgh via a videotaped teleconference. I actually thought he was among the least effective of the many expert witnesses involved in the case, and the technology may have been partly at fault. It’s just harder for jurors to stay awake for hours of video testimony than it is to pay attention to a real person on the witness stand. But in addition, this witness really let the defense attorneys get under his skin during cross-examination, which reduced his credibility, in my view.

  • Pingback: Medical Malpractice—from the Jury’s Point of View | Travels with Rhody

  • http://google DARRELL PEARCE

    Hello there. Great website. I had a case here in new zealand 8 years ago against the accident compensation corporation. They won on flawed evidence & they failed to check the evidence before putting it to the judge. I am considering the possibility of a civil claim against the accident compensation corporation for gross negligence & medical malpractice. Does anyone know of any decisions that can help me please.
    Kind Regards
    Darrell Pearce