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 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 locate existing data that would enable a helpful comparison. With today’s technology, this happens far less often. (Ironically, in the pastor’s case one of the two prior sets of spine films was stored in the hospital’s computer and simply wasn’t noticed until later. Another set of films was stored off-site.) Of course, we weren’t allowed to take any of this into consideration as jurors—we were only allowed to look at the conditions pertaining in 2003.

3. Courthouses are still shockingly low-tech places, at least in Massachusetts. In the Suffolk County Courthouse—which was built in 1937 but is still called the “new” courthouse to distinguish it from the adjoining John Adams Courthouse, built in 1893—there are eight elevators, but only two of them were ever operating, as far as I could tell. Time itself seemed slower in the Superior Court: When we switched from standard time to daylight time in mid-March, it took several days for someone to come around and change the clock on the courtroom wall. The court reporters in Suffolk County are not equipped to create real-time transcripts, so it wasn’t possible for the judge or the attorneys to go back over the record, strike portions, or obtain transcripts until days or weeks later (by the end of the trial, though, it appeared that both sides had full transcripts of the testimony).

Neither the judge nor any of the attorneys were using laptops for their own work. (Now I know why they call them legal pads.) To provide us with a record of her final jury instructions, which included a lot of details about malpractice law, the judge, Massachusetts Superior Court Judge Nancy Staffier-Holtz, made a tape—using a portable cassette recorder that could not have been manufactured after 1980. In fact, the only people bringing modern technologies into the courtroom were the jurors. Every single one had an advanced feature phone or smartphone of some kind, which we used fervently during breaks to reconnect with the outside world. (Being careful not to discuss the case itself, of course.)

4. Surprisingly enough, being a journalist isn’t a get-out-of-jury-duty-free card. The previous two times that I’ve been called up for jury duty—once in Boston, once in San Francisco—the attorneys have used their peremptory challenges to excuse me almost instantly, and I figured it was because of either my profession or my degrees (Harvard BA, MIT PhD). But in this case, both the plaintiffs’ attorneys and the defendants’ were apparently comfortable with having independent thinkers in the jury box. Which leads to my next point…

5. We were a damn good jury. The highlight of this entire experience, for me, was the honor of serving with such smart, dedicated, and upstanding citizens as the 13 other jurors on this case. I am not being facetious—I’ve had some of my faith in democracy restored. What was especially interesting was that, for no reason I can make out, our jury was very young, not to mention very female—nine of the 14 jurors were women, and eight of the nine women were under 30 years old, as was one of the men. We spent a lot of time hanging out in the jury room during the breaks and the inevitable delays in the proceedings, and apart from the understandable grumbling about being assigned to a three-week trial, I found the other jurors to be some of the brightest, most attentive and articulate young people I’ve ever met outside of a university. Our final deliberations were careful, considered, and civilized. If I were ever unlucky enough to be appearing in court, whether as a plaintiff or a defendant, I’d want these people as my jurors.

Hearing about the pastor’s suffering day after day for three weeks; sharing the same hallways and the same elevators and the same courtroom with the pastor and his wife and the accused doctors; and then being asked to decide their fate—it all added up to a true bonding experience for the jury. After the verdicts were read and we were excused, 10 of us went out to a pub near the courthouse for beers—grateful that our service was over, but a little wistful too.

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