Dr. O was a family clinician who had built a personal practice over a 15-year career. He was so successful that he had to close his office occasionally to control the volume of patient visits, and he enjoyed senior status in a group with five other physicians. Dr. O kept up with the medical literature and was among the first family clinicians to appreciate the increasing frequency of CAD in women. However, it is unlikely that any amount of experience could have prepared him for the patient who led to his first malpractice suit.
The 39-year-old woman had been Dr. O’s patient for the past eight years. Despite mild chronic bronchitis from smoking, she had few health problems. There was no history of heart conditions. She complained of chest pains lasting 5-10 seconds, especially after coughing. Dr. O assumed that these pains were associated with tracheitis and decided to wait until her acute bronchitis had resolved before re-assessing her. Later, Dr. O testified that although he was aware of the possibility of CAD, he felt it was unlikely in a woman of her age. Five weeks after her final visit to Dr. O, the patient passed away peacefully in her sleep. Autopsy revealed three-vessel CAD with fresh thrombus in the left anterior descending coronary artery.
The woman’s family consulted a plaintiff lawyer, who called for her chart and sent it out for evaluation. When the opinion came back that Dr. O was negligent for not ordering a stress test as soon as the patient complained of chest pain, an exasperated Dr. O asked, “How could she walk on a treadmill when she could hardly walk up the office steps?” But the plaintiff lawyer did not have the benefit of this perspective. With the expert’s opinion in hand, the plaintiff lawyer filed a malpractice suit against Dr. O and the clinic.
The plaintiff lawyer began the trial by calling the patient’s spouse and two experts, after which Dr. O took the stand to provide a chronology of the case based on his office chart. He testified that he had considered ordering a stress test when the woman first complained of chest pain but opted against it because she had mentioned only one attack, and the pain might have stemmed from tracheitis. Instead, he decided to wait and reassess her after her bronchitis had cleared.
Dr. O was followed by the defense’s family medicine expert, who agreed that there was no indication for an immediate stress test and that the symptoms may have been from her bronchitis/tracheitis. This indicated that the patient was asymptomatic before her death.
The jury found that Dr. O had been negligent but did not cause the patient’s death. Dr. O turned to congratulate his lawyer, who was looking grimly across the courtroom at the enraged plaintiff lawyer. After the jurors had left the room, the plaintiff lawyer approached the judge’s bench and exploded. “How can the jury find there was no causation when the defendant didn’t even present that defense?” he sputtered.
“Apply for a mistrial, and I will consider it,” the startled judge replied. The plaintiff lawyer assured him that he would.
“What’s going on?” Dr. O asked.
“We are going to have to go through all this again,” replied the lawyer without enthusiasm.
One week later, the judge granted the plaintiff lawyer a new trial. Angry and depressed at the prospect of spending another five days in the courtroom with the plaintiff lawyer assailing his name and reputation, Dr. O called the insurance adjuster, who told him that insurers usually make a settlement offer in these situations. After several weeks of negotiations, Dr. O approved a settlement for $150,000—for a case he had already won in front of a jury.
Traditionally, judges are entrusted with protecting the integrity of the judicial process. In civil trials, this includes making sure that the conclusions reached by the jury are supported by the evidence presented at trial. The plaintiff lawyer in this case complained that the witnesses had not testified as to lack of causation between the clinician’s alleged malpractice and the patient’s death from CAD. Therefore, the jury could not reach its conclusion. That argument convinced the judge to rule a mistrial, virtually forcing a settlement through litigation exhaustion.
The increasing percentage of malpractice cases that are settled implies that more physicians are accepting the reality that settlement is, in many circumstances, the most practical way to end the pain. In this case, the prospect of another drawn-out trial was more than Dr. O could bear. Of course, plaintiff lawyers have their own concerns as well. They are only paid when they win or settle, and tying up their resources in another trial that they may lose is a strong incentive to accept reasonable settlement offers. Having a settled malpractice case in the National Malpractice Databank is less significant than it used to be. The public recognizes that malpractice suits are commonly settled in the interest of convenience.
The failure of Dr. O’s defense lawyer to present evidence on the record that would support a jury verdict of “no causation” could be considered legal malpractice. How can you ensure that you have competent representation by the insurance company-appointed lawyer? While the simple answer is that you can’t, there are ways to check on your lawyer. The easiest is to ask for names of other physicians whom he or she has represented in the past. If you are reluctant to ask, the insurance company adjuster will do so. Call the references and inquire about their experience.
It is possible to hire a second lawyer to assess how the case is being prepared and to check on its progress from time to time. This “personal counsel” strategy is inherently duplicative and can be very expensive (the insurance company only covers the bill for its appointed lawyer). In certain situations, such as a possible conflict over whether or not to settle, the insurance company may recommend you retain personal counsel to safeguard your interests. In general, personal counsel is more of a nuisance than a benefit to a clinician-defendant.