OT: Legal Question - Medical Malpractice

[terpkristin]

I suppose this is a question for legal buffs, legal history buffs, and/or lawyers, and/or doctors if they have any knowledge of it...

Why is it that medical malpractice suits and medical negligence suits require some permanent injury to even be considered a legal problem?

Here's the background.
Last summer, I had my 8th surgery in a period of 2 years, 11 months. Based on all of these surgeries, I knew going into number 8 that I have a severe sensitivity to the drug Versed. Thus, on every surgery I've had since January 2003, I've put "Versed" in the list of things I'm allergic to. Until last June (surgery #8), this was not a problem.

However, in surgery #8, two things "abnormal" happened:
The first is that the anesthesiologist didn't come and talk to me prior to the surgery. That is just odd as all hell in my experience, I'm used to talking with the anesthesiologist, getting to know the plan, and I always verbally communicate with them my Versed problem. Since I did not talk to the anesthesiologist, I made sure every nurse who talked to me knew, and even saw "ALLERGIC TO VERSED" written in big red letters on the top of my chart.
The second is that apparently the anesthesiologist didn't bother to look at my chart and in fact gave me Versed. Things were "ok" until after the surgery when I wasn't waking up and my sats were dropping. My parents noticed it, as did the PACU nurse: I was supposed to start waking up 30 minutes or so after leaving the O.R; an hour later, I was still not responding and sats were plummeting. So the PACU nurse called in the on-call anesthesiologist (apparently the guy that did my surgery had already left for the day) and the guy immediately noticed that I'd been given Versed when I shouldn't have been. He administered the counter-acting drug and eventually I started coming around and things improved...
Unfortunately, though, as a result, what was supposed to be outpatient day surgery required me to stay overnight for observation and to make sure I continued to improve.

Now, I'm an otherwise healthy 25 year old, in pretty good shape and an athlete. I assume my body handled the oxygen shortage the same way it did if I were working out: it coped, and in the end I suffered no long term damage.

We still opted to file a claim (demand?) with a lawyer, who outright said we didn't have much of a case. I mean, sure the pre-op paperwork and chart copies clearly show that I had a known problem with Versed, that I was given Versed, and that the anesthesiologist on-call noticed it and administered the counter-drug. But the paperwork from the first anesthesiologist has something where he's signed off that he spoke with me (he did not). At this point, that aspect is a he-said/she-said, but the fact remains he gave me a drug I shouldn't have been given.

Why is it, that even though it's obvious through the paperwork that this guy messed up, that he's not even going to get a slap on the wrists? SOMETHING should come of this. I shouldn't have had to stay overnight (my insurance covered it, for beter or worse), and my parents shouldn't have had to deal with the stress of knowing that the idiot gave me something that was a known problem and that there might be more wrong (the post-op anesthesiologist kept them quite well-informed that I was given a drug that it said I shouldn't have been given).

So, I'm calling my lawyer tomorrow and really don't expect to get anything. I think we asked for 12.5k, for suffering caused by negligence. But why is it that because I'm a doctor's dream patient (in terms of health and fitness aside from my ankle) that this guy, who quite obviously screwed the pooch, won't suffer any repercussion fom it?

Is there ANY way to get this written up, at least on his "permanent record" or something? ESPECIALLY if we don't get anything out of it, it just doesn't seem right that he should suffer nothing..

Sorry for the long-windedness...
/tk

[terpkristin]

Dola,
Er, it also doesn't seem fair to future patients of his that he can get away with this kind of crap. I mean, what if next time he kills somebody? What if it's a continuous problem with this jerk?

Grrr.

/tk

[Eaglesfan27]

Medical malpractice laws vary significantly from state to state, so I can't comment on that. However, not all states require "permanent damage" for a claim. I know Louisiana doesn't.

As far as what you can do, I'd recommend that you write to the State Medical Board. They investigate all complaints. It's possible nothing will come out of it, but they will investigate it and mark it on his/her permanent record if they find that the doctor did something wrong.

[Eaglesfan27]

Dola -

You can also contact the medical board to see if he has any previous complaints. I'm almost certain that every state makes this information public upon request.

[albionmoonlight]

Despite what the public is led to beleive by the insurance industry, not every Tom, Dick, or Harry who goes to the doctor gets to bring a lawsuit. There are lots of barriers in place to stop "frivilous" suits. Unfortunately, those barriers sometimes stop legitimate complaints from being properly addressed.

Eaglesfan is right that this is a state specific law area, but when you ask generally, "why is it so hard for me to bring this medical malpractice action, get it on the doctor's record, etc." the general answer is--too many freeloaders tried to get a free ride by bringing a frivilous suit. If people didn't try so hard to bring meritless suits, we would not need so many restrictions on the process.

I commend your lawyer for being straight with you and telling you that you don't have much of a case if that was his impression. Too often, quasi-ethical attorneys just see clients as dollar signs and will lead you into thinking that you have a case when you really do not just so they can use your suffering to try to eek out a few dollars.

[albionmoonlight]

dola (three dolas in a row)

As to why you should get less money because you are healthy (i.e. not injured permanently by the negligence). That gets to the theory behind personal injury law. We do not use negligence law to punish (unless you have punitive damages, which are not at issue in this case). We instead say that personal injury lawsuits are to try to make the "victim" whole. That means we want to put you in the same place that you would be had the injury not happened. Some of that is easy to quantify--medical expenses, lost wages, etc. Some of it is a bit more speculative--future lost wages, etc. Some of it is very hard to quantify--pain and suffering, emotional distress, etc. In the end, though, we are trying to "compensate" you--no more/no less.

When you start assigning specific fines for actions--regardless of the economic harm that the victim suffers, you start to bleed into the criminal law.

[terpkristin]

I guess I should clarify something here.
Though I really could use a settlement right now (financially speaking), the decision to take this action and this action was started before I even graduated, so money isn't exactly the issue here. The demand was made on basis of pain and suffering and emotional distress to myself and my folks (frankly let's face it I was still out from the anesthesia, I was only really riled up about it a day later when someone told me what happened). I really want the jerkoff to have it written somewhere that he f'd up. Thanks to both EF and albionmoonlight for mentioning the state board. I will look into filing that information tomorrow. Thanks!!

/tk

[Easy Mac]

Here is the form

http://mbp.state.md.us/forms/complain.pdf (I assume this is in MD, but I have access to lots of different stuff if necessary)

I have connections to this stuff... not a lot of knowledge myself, but I working on personal injury (not a lawyer, just working) right now. You'd be surprised how difficult it is to even get remands for people who have died as a result of negligence by people or companies... conversely, you'd be surprised how easy it is to get money for people who asked for the stuff, had no problems, and are perfectly fine. Its a messed up system, but it pays the bills.

edit: general Medical Board for MD site... I'd tell you what it said if I understood half of it http://mbp.state.md.us/

[ISiddiqui]

Terp, yeah, the state Med board is probably the best bet for the reason that albion stated. Med Mal is to make the victim whole, but the state board may put a black mark on the record of the idiot doctor.

[st.cronin]

This reminds me of something I read somewhere ... possibly in Leavitt's Freakanomics... whether a doctor gets sued for malpractice is apparently not correlative with his talent or ability to avoid fuckups, but is highly correlative with his/her 'bedside manner.' I have no thoughts on the merit of your case.

[KevinNU7]

I would have contacted my health insurance provider and worked with them instead of a lawyer. I am sure they would be pissed to here that they had to pay for an extra night at teh hospital because the doctor fucked up.

[Radii]

The common sense side of me wonders why you would expect financial compensation when the end result was nothing more than an extra day of inconvienance and no long term problems to your health? If you had to pay $500 more out of pocket because of this then I can see a claim for $500, if you missed an extra day of work, then an extra days worth of pay, etc, but where is the $12.5K claim here?

I totally agree that you would want a complaint filed and would want this problem on the anesthesiologist's(sp. I am sure) public record, but in the end, no harm was done to you, right?

I don't mean at all to accuse that this is frivolous, but, I can't imagine seeking monetary damages for something like that myself is all...

[Eaglesfan27]

Originally Posted by st.cronin

This reminds me of something I read somewhere ... possibly in Leavitt's Freakanomics... whether a doctor gets sued for malpractice is apparently not correlative with his talent or ability to avoid fuckups, but is highly correlative with his/her 'bedside manner.' I have no thoughts on the merit of your case.

We are constantly told this in medical school and residency. I generally try to be very nice to my patients.

[oliegirl]

Originally Posted by st.cronin

This reminds me of something I read somewhere ... possibly in Leavitt's Freakanomics... whether a doctor gets sued for malpractice is apparently not correlative with his talent or ability to avoid fuckups, but is highly correlative with his/her 'bedside manner.' I have no thoughts on the merit of your case.

Leavitt's Freakanomics? How is it possible that my last name has been Leavitt for the past 32 years and I have never heard of this book? What the hell is it about - and why am I not getting royalties off of it???

[ISiddiqui]

Because other people can share your last name .

[Mountain]

It seems to me you have a pretty straightforward case of liability i.e. the doctor was negligent. Your problem is amount of damages. Considereing the complexity of medical malpractice suits, it is simply not economically feasible for a plaintiff to pursue them unless there is SIGNIFICANT damages. Just hiring and getting an expert witness to examine your case and testify that the doctor was negilgent is $20,000 minimum. So the lawyer based his recommendation that you didn't have much of a case based on the lack of damages. Now had you died or been severely mentally imparied because of this incident, that lawyer would be all over your case.

Eagles Fan is right your only remedy is to report thsi to the state medical board so you can get them to investigate and hopefully admonish this doctor before he makes the same mistake over again and kills someone else.

[oliegirl]

Originally Posted by ISiddiqui

Because other people can share your last name .

Yeah, but I have never met someone who spells their name the way I do that I am not related to...most people spell it Levit. It's very uncommon for it to be Leavitt.

[st.cronin]

I may have spelled Leavitt's name wrong. He is an eccentric economist, and the book is a collection of his essays, which typically bear only a tangential relation to what you would expect to read from an economist.

[Peregrine]

http://www.freakonomics.com/

[ISiddiqui]

Originally Posted by oliegirl

Yeah, but I have never met someone who spells their name the way I do that I am not related to...most people spell it Levit. It's very uncommon for it to be Leavitt.

Well I've guess we've shown that it isn't him. However, in the Atlanta whitepages I see 6 people who spell their last name as "Leavitt". It ain't as uncommon as you think .

[judicial clerk]

Of course the practice of medicine is as much art as it is science and a doctor's mistake does not necessarily equal malpractice. It is within the standard of the profession for mistakes to be made and guesses to be wrong occasionally.

That said, it seems as though this doctor's mistake was preventable and if the doctor was paying better attention he/she could have avoided this mistake. Of course, as others have said, your damages are slight in the big scheme of things, but I sympathize with your desire for this doctor's inattention to be brought to light.

In my limited experience, I have found the medical profession to be paronoid of malpractice claims to the degree that they tend to circle the wagons and defend against any claims against any doctors for fear that they may be next. I think the unfortunate result is that in an attempt to quash ptoential claims, bad docotrs go uninvestigated and unpunished. I find the general attitude to be a mixture of an old boys network/you scratch my back and I'll scratch yours/ doctors vs. lesser human species.

I think we need reasonable tort reform (maybe loser pays) along with a change in the general attitude of doctors that all claims are frivolous and should be defended against so that docotrs will start effectively policing themselves.

I personally do not look down on a doctor who has had malpractice claims made against him/her unless I know the specific facts of the case.

[Vinatieri for Prez]

You can also complain to the hospital directly. If he has had other complaints, they may just fire him. It happens. For the most part, hospitals don't like doctors that expose them to liability. If they do take any kind of serious action against him, like a suspension, etc. it automatically gets reported to the national database for medical boards. If he gets enough of these, nobody will hire him anywhere in the U.S. because of his record.

This and a complaint with the medical board is the proper action in a case like this. Frankly, your civil lawsuit does not have much merit. As already stated, you didn't suffer much if any harm, bodily or financially. And if we start handing out 10-20k for emotional damages (where there is no temporary or permanent injury), just because things went wrong, the courts and medical treatment in general will really become a mess.