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

3/26/10Follow @wroush

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if the radiologist on duty had gone looking in the hospital’s computer system for previous MRI films of the pastor’s spine, and had compared the old and new films, she would have seen evidence of infection. This presumably would have prompted her to recommend a different test—an MRI with gadolinium contrast, like the one that was eventually done at the Boston hospital—that would have highlighted the abscess, allowing surgeons to act to drain it sooner. Pasquale argued that the admitting and attending physicians at the Boston hospital also erred in not being quicker to order an MRI with contrast or a neurosurgical consultation.

Those are the basic facts and contentions, though of course I’ve left out volumes. Pasquale and the defendants’ attorneys—Kenneth Weiss of Ficksman & Conley and George Wakeman of Adler Cohen Harvey Wakeman & Guekguezian, who were also masters of their craft—walked the jury through hundreds of pages of medical records and called 17 witnesses all told (which is why the trial took three weeks). In the end, the plaintiffs lost: my fellow jurors and I determined, based on the evidence we were given, that none of the pastor’s injuries could be traced to outright negligence on the part of the individual defendants. Now, on to my personal observations:

1. Medical malpractice lawsuits are a lousy way to reach a fair outcome when somebody’s been injured. As I just wrote, we jurors felt that Pasquale failed to prove his case that the actions (or inaction) of the three doctors named as defendants rose to the level of negligence. But dozens of professionals were involved in the pastor’s care that week, and I think everyone on the jury agreed that on a broader level, the medical system failed in this case.

It was clear to me, at least, that the pastor’s injuries resulted from a chain of avoidable errors. To begin with, the radiologist or her staff should have located the older films, which would have raised suspicions about a serious spinal infection. While their failure to do this didn’t constitute malpractice, the fact that the original MRI finding was a false negative set off a wild goose chase. Doctors wasted days investigating possibilities like an abdominal infection, endocarditis (an infection of the heart valves), and even a dental abscess. It wasn’t until the spinal abscess had grown so large that paralysis set in that anyone bothered to do the key test, a contrast MRI.

Since you can’t sue a whole profession, a victim’s only recourse in a medical-injury case is to sue individual doctors. But this is a gamble, since a bad outcome, by itself, is not evidence of negligence. As the judge painstakingly explained to us during the jury instructions, the plaintiff has to show that an individual physician’s actions breached the standard of care in his or her specialty at the time, and that this breach caused an injury that would not have occurred otherwise.

Those are high bars to clear, and in the end the jury didn’t feel that any of the individual defendants deserved to have their careers stained by a malpractice damage award. But what seriously bothered me, and, I believe, many of the other jurors, is that the law forced us to decide on that narrow issue alone—meaning that the pastor and his wife will get no compensation. I’ve emerged from this experience feeling that my part as a juror in a malpractice case was to be a cog in a very broken machine. I now firmly believe that U.S. states need to adopt “no-fault” malpractice laws, like those in Denmark, Finland, Sweden, and New Zealand, that compensate victims without proof of gross negligence and without assigning blame.

The rest of my observations are on lighter matters.

2. Be very glad that it isn’t 2003 anymore. Part of the reason hospitals are investing money in digital systems for capturing and sharing CT scans, MRIs, and mammograms is to avoid the exact situation that occurred at the suburban hospital in this case: a failure to … 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