How Malpractice Suits Keep My Profession Honest

By Bernard Sussman
Sunday, April 24, 2005

Most medical malpractice litigation is frivolous. That's what defense attorneys, insurance companies and even the U.S. president would have you believe. Some 80 percent of cases are, after all, resolved in favor of the defendant doctor.

But little is made of the advantages that doctors take into a courtroom. Physicians are apt to prevail in these cases because of their professional culture of silence, which can make it difficult for injured patients to secure reliable expert witnesses who will testify on their behalf. Nor is there any acknowledgement of the countless people who are unaware that injuries they have sustained in the hospital should rightly be blamed on medical negligence or error. As a neurosurgeon with some 50 years of clinical experience, I can say from first-hand observation that it's often not the patients' claims that are frivolous, but rather the manner in which those claims are treated.

During the 36 years I spent as a professor at Howard University College of Medicine, I witnessed and testified in instances of medical malpractice that should give even the most forgiving patient pause: There were failures to locate a tumor simply because the surgeon operated on the wrong side of the head; and there were patients rendered mute or otherwise disabled because tissue was removed from inappropriate areas of the brain. In cases like these, the medical experts who testified on behalf of the patients risked being ostracized or suspended by their professional organizations. I know, from personal experience.

Even in the most egregious cases of medical negligence, those few physicians who argue against their colleagues are often denied opportunities to present or publish their scientific papers. That's just what happened to me. In 1980, I was invited to present a paper at a professional meeting in California. Two other members of the panel took exception to my presence because I was known as a plaintiff's witness, and I subsequently received a letter withdrawing the invitation to present my paper.

Little did I realize what I was getting into in the late '60s when I volunteered to testify on behalf of a young black man who had been shot through the mouth and then denied admission to a primarily white hospital. We lost that civil rights era case, but it gave me a reputation -- for being willing to stand up to members of my own profession.

I remember a Detroit neurosurgeon calling me in desperation to ask what to do after he had testified against a surgeon who had operated on the wrong side of a patient's head. The Detroit doctor worried that he was being needlessly scrutinized by the American Association of Neurological Surgeons. It reminded me of a case in which I had been an expert witness here in Washington that led to complaints from the professor who had performed the surgery and unrelenting nit-picking from the association. My advice to the Detroit doctor? Resign from the association. That's what I did.

The vast majority of the cases in which I have taken part have been settled out of court. In cases that do get to court, medical experts who testify for plaintiffs have sometimes been countersued by defendant doctors claiming defamation of character. And there have even been situations in which the defendant doctor has countersued the injured patient in order to force a withdrawal of the complaint.

These closings of the professional ranks continue to be common practice because the medical profession -- not just neurosurgery -- has no set standards of practice. With no standards for medical behavior, no one can be faulted, and doctors have a free hand in what they choose to do or not to do. That's why one neurosurgeon could argue in his own defense that he had operated on the wrong side of the brain because the technician had hung the X-ray backward. My argument was that his excuse was no excuse; indeed, that the surgeon's actions were absolutely inexcusable. But it still amazes me, living as we do in a society with governing standards for almost everything imaginable, that the human endeavor that affects us the most seriously goes more or less unregulated.

After years of encountering medical tragedies of this sort and representing patients in court in more than 75 cases, I believe in putting the blame where it properly lies -- not just on individual doctors but on the profession as a whole for failing to come up with and adhere to proper professional standards.

Instead though, as injured patients continue to seek remedies in the courts, they are scoffed at by defense attorneys alternately charging that their claims are "frivolous" and that any awards they might come by for noneconomic damage need strict "capping." That is the kind of thinking that has prompted President Bush and his allies in Congress to embark upon their campaign to limit malpractice litigation.

In any civil lawsuit, the jury's decision often comes down to the number and the credibility of each side's expert witnesses. Jurors weigh their credentials, experience and demeanor. In some malpractice cases the plaintiff's charge cannot be sustained because he or she cannot even recruit a doctor who will counter the defense expert's testimony even if all it amounts to is a farcical recitation of unverifiable pseudoscientific assertions.

Whom then might a jury believe? Certainly not the minimally supported plaintiff. Instead, the jury is led down the garden path by a conjuration of medical fictions. There are deserving lawsuits that can't even be filed because the odds are stacked so high against obtaining solidly corroborative expert opinions.

The medical community also succeeds in projecting a pervasive sense of invulnerability. Just being a physician carries with it a certain aura of self-confidence and knowledgeableness.

Even if certain ostensibly caring physicians know full well that they are the direct and only cause of some medical tragedy, they are unlikely to let their patients in on that fact. By closing ranks, the medical community has shielded itself from the effects of meritorious litigation.

I have a long view of what has sometimes happened in America's operating rooms -- and gone unpunished by America's courts: Blood vessels of the brain that should be considered inoperable are nevertheless tackled surgically with serious consequences. Other blood vessels that have bled and require immediate surgery go untreated until they bleed a second time, sometimes with fatal results. Doctors prescribe drugs haphazardly.

It wouldn't be hard to devise a set of standards for practice in my own specialty -- insisting, for example, that a patient even briefly unconscious from a blow to the head be observed for at least 24 hours in a hospital; requiring that patients be told that for certain kinds of tumors radiation therapy offers as much chance of benefit as surgery but that an operation carries a greater risk of brain injury; monitoring elderly patients who are found to have a benign tumor of the brain rather than operating on them. These would be useful standards to adopt.

I know my critics will say this is just old-fashioned cookbook medicine. I know they will point to some of the great achievements of modern neurosurgery and to the lives that are being saved. But as injured patients continue to seek remedies in America's courtrooms, I know that many of these men and women do not deserve to be scoffed at by defense attorneys charging that their claims are trifling.

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