Randy’s First Malpractice Lawsuit
I had three serious malpractice “events” in my career. This is the first.
The course load for the first year of Medical School at UCLA in 1974 was four hours of lecture in the morning with one additional hour after lunch followed by three hours of anatomy lab. Sandwiched in that schedule was an optional lecture series, held during the lunch hour, on the “sociology” of medicine. It was here that I learned about Beethoven: it was alleged during a lecture on the ethics of abortion, that Beethoven’s father was abusive and afflicted with tertiary syphilis*; Beethoven would later become deaf and the suggestion in the lecture, was that the cause for his deafness could plausibly be attributed to congenital syphilis (and I remember thinking, “and maybe from beatings from his father.”). So: would Mrs. Beethoven have had a legitimate reason to consider abortion? If so, would the world have not lost a great artist?
A second lecture topic was self-care. Here, I learned that dentists had the highest rate of mortality flying private planes when compared to any other profession. That sense of power or invincibility that most of us had not yet achieved was laid before us as a caution. A related question in the same lecture: doctors famously don’t take care of themselves. If, for example, you were to urinate blood, how long would you wait to schedule an appointment with a doctor?
I was dumbstruck. I had been painlessly urinating tea colored urine for 48 hours. My answer after the lecture? 48 hours! The experience of seeking care at the student health center remains a sentinel memory. The physician was past his prime and had “Karl Malden nose" with a small band-aid covering a weeping pustule. He did a cursory history and asked me to urinate in a bottle. I was chagrined when I produce a lovely yellow sample—not a hint of the tainted urine I had brought to his attention. “No,” he said, reading the lab report, “you definitely have hematuria on the micro section.”
I did not know at this point in my career what that meant, exactly but it validated my complaint.
“Let me have you drop your trousers and bend over the table.”
I deferred to authority and received my first rectal exam. I nearly came up swinging as he had not suggested that anything of the sort was going to happen. He did not explain himself and later I would learn (having had a urethral culture done as well and again, with minimal explanation) that he was being thorough and despite my recent celibacy wisely chose to not believe a word I said. He was ruling out VD.
It turned out I had post-streptococcal nephritis and recovered uneventfully.
The lectures were interesting and relevant, but I never heard one about malpractice. It is possible I came to value my lunch hour as a time for rest and reflection. I don’t recall hearing much about lawsuits against doctors with any specificity but rather recognized a general malaise regarding the expectation of the inevitable lawsuit found in every department I trained. It would happen someday—it was not if, but when. Like medical school hardships, I understood that, but did not really believe it.
Case number one: We find Randy on call in the ICU during his second year in residency (Salinas California late1979 or early 1980). When on call, the need for a surgical assistant to be pulled from routine work responsibilities was divided between three residents. the “First year” or Intern (admissions to the general floors) could perform simple cases that he/she worked up and the second year (ICU duty) would perform the hospital functions of the first year while they were in the operating room. The third year was available when needed, but our culture was to try and leave them alone unless there were serious problems.
If the ICU was stable, complex cases found the second or third year scrubbed in (assisteing the surgeon) given their specific experience.
My patient was a middle aged Hispanic man who was an inmate at Soledad Prison (the then-home of Charles Manson and Sirhan Sirhan). He was incarcerated for drug offenses and had been in for more than a year. He had complained of abdominal pain, sought medical care, and was thought by the guards to be malingering. They did not attend to him until it became clear to them that he was quite ill. I was called to the ER where I met the surgeon evaluating him. This was unusual because the protocol was for the Resident to touch the patient first and then call in the surgeon. The ER doctor recognized a dying patient and the need for a surgeon emergently. Dr. Hannon was a good surgeon, had seen military service, and had a pretty good notion of the diagnosis; the patient was in shock, and had acute peritonitis. His blood work reflected severe stress or infection and severe dehydration. I first assisted ie provided the extra hands for the surgeon during the operation that was done emergently.
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At surgery, he was found to have a perforated gastric ulcer, the only one I ever saw documented at surgery in my career (H2 blockers and PPI’s made this diagnosis a thing of the past). He therefore had a chemical peritonitis (stomach acid had leaked throughout the abdominal cavity). He was supported with fluids and we irrigated out the peritoneal cavity. The surgery was relatively short lived. I knew that the fun was only beginning.
I was not a fan of the ICU. I was thankful that when on call, most the the patients had been worked up and were usually stable with clear-cut orders to guide any decision making. I had learned in medical school that the complexity of patients in the ICU required a good depth of knowledge, some seat-of-the-pants problem solving, and most importantly confidence. I did not get that confidence until the last quarter of my second residency year. Patients in the ICU were often to my mind, hopeless cases. Typical was a Viet Nam Vet with disseminated cancer he attributed to exposure to Agent Orange. He had a good relationship with his first year doctor who asked me to, “make sure he is alive tomorrow so I can say good bye.” The patient arrested at 4:30 AM that night of call—the nurses prepared to “code” the patient with some ambivalence, knowing his situation was hopeless. The monitor showed V fib and I tried an out-of-date treatment given his “no code” status: I gave him a vigorous chest “thump.” He reverted to a normal heart rhythm (all this with him heavily sedated and not conscious). I repeated this process three more times before sign-out in the morning. He died shortly after the goodbyes were said.
Small victories………
More common, was the admission process whereby the ER doctor would have me admit a teen who had taken an unknown number of aspirin or penicillin or other drugs found in Mom’s medicine cabinet. They typically were female, in no distress with stable vital signs, and the admission was a precaution as labs were run. They commonly had girlfriends at the bedside with the matched nervous giggling. It pissed me off in that my cynicism was doubled: trivial “social” cases or, “going to die no matter what you do” cases where my ego and saving face were personally as important as the interventions in which I had little faith.
I was a cranky second year resident.
I was not comfortable with ICU medicine when we transferred the Soledad prisoner from surgery and less comfortable with ventilators. This patient was to be maintained on a ventilator with positive pressures through the night as this was (at the time) the mechanism used to try and prevent ARDS (adult respiratory distress syndrome) which is a complication of shock. To keep someone on a respirator after general anesthesia, a combination of drugs is needed so as to prevent the patient waking up with the endotracheal tube in place and the ensuing panic (something is definitely where it does not belong, says the body) that would result. The anesthesiologist set the respiratory settings in the ICU and everyone went home, but me.
The ICU quieted down, I did my last rounds and checked in with the first year. I was able to attempt sleep on the unit. I was called a couple hours later, sometime around 2-3AM. The patient had, despite being in restraints, extubated himself. I was pissed. He was not coherent (on reflection, I never heard him utter a word—ever) and struggled mightily with the restraints. His breathing was quite labored. I sedated him a bit which helped. I osculated his lungs and reviewed his vital signs. My decision options: let him be and follow his course over the next 4-5 hours or re-intubate him. My sense from the surgeon was that to not re-intubate him would be malpractice given the clinical setting. We repaired the stomach ulcer but for him to die post-operatively for lack of a plan followed correctly was not a good option.
I attempted to re-intubate him twice with no success. This made me fear adding more sedation in that if I couldn’t intubate him then, he would be at risk for respiratory arrest. This can be managed by “bagging him” but is not intended to be done for hours as it is labor intensive. Also I was supposed to be able to do this. So, I called the third year, Dr. Hunt. He agreed with the need to intubate and watched me attempt a third intubation with more sedation. I failed; the patient was too vigorous in his reactivity and pain, despite the prodigious amounts of drugs given. Three strikes, and you are out.
Bill Hunt was like a big brother as residents go. He had confidence. He had at this point done a month on the anesthesia service and had experience sedating, paralyzing, and intubating patients for surgery. He had the nurses administer a drug to paralyze Mr. Soledad Prison, and he accomplished the intubation. I auscultated the lungs and stomach to be sure of tube placement, and all seemed well with the world. Bill taped the tube and asked for a portable X ray to check tube placement. As he did so, we watched the monitor show a bradycardia (slowing of the heart) develop.
And develop.
V fib. We went into a full code and Bill ran it beautifully. Three (5? 6?) minutes into it, he untaped the tube and pulled it; we ventilated with the mask. The code was successful after 10-15 minutes. We had a rhythm and stable vital signs.
We at this point, decided to not attempt another intubation. Calm returned to the ICU. The sedation was ordered for agitation and there was none until 8:00 when I signed off. This proved worrisome as the short acting agents we had given should have been metabolized. The nursed brought to my attention that he had a poor gag reflex and sluggish iris changes to light. The possibility that he had anoxic brain damage was brought up.
After the morning sign-out, family presented to the ICU. They were aware that their relative (these were relatives from his nuclear family—I specifically remember a brother) was seriously ill and they asked for answers. I made eye contact with the brother and was clear that his brother was very seriously ill with complications after surgery—a surgery that had been delayed by the prison. I told him he needed to ask questions about that delay at the prison.
A year passed. A year and a half. I was in private practice with Bill Hunt and Ken Hoffman when I was served with a subpoena in the office, along with Bill. My experience with “being served” was limited to that point, by what I had seen in the movies. The experience was anticlimactic. Laurie (front office worker) came to my office telling me there was a young man asking for me. She could not tell me what he needed. Affable me, I stopped what I was doing and came forward. A very young man, casually dressed an in need of acne care looked very serious and asked me to identify myself. Having done so, he handed me a manilla envelope and told me, “you have been served.” I don’t recall the timing of Bill’s subpoena but I do recall he delayed leaving his office to receive the same young man. Bill actually believed in killing the messenger…….
The family of the Soledad prisoner was suing for damages; he was no longer in prison as his life sentence with no chance for parole was now official; he had brain damage, was out of prison and living in a nursing home. He would sell no more drugs……..
I was in my first year of practice and being sued for something that happened when I was a resident. Bill rolled his eyes: “This is typical. We are going to get sued over a prisoner and the prison’s fuck up.” I was troubled by this cynicism. The family had effectively lost this relative and it did not have to have been so. The law suit made some sense to me. But against me? I had suggested, “looking into this,” to a family member that morning after the Code Blue. My conscience was clean; I could not think of anything I could really have done different that night and yet, as I put myself in their lawyer’s chair, thoughts floated up: was I competent to manage the ventilator? Did I know how to intubate? Was the intubation really necessary? Was the code run well? Was I competent, at all?
Normal to have doubts, I thought to myself.
The County of Monterey defended Bill and me. The lawyer was an, “old horse” on retainer to the County for cases like this for years. He was reassuring but spoke a foreign language as he related the law and the complexity of this case. The State of California was aiding the family in the prosecution of the case in that they had made clear that they had done their job and it was the medical care that rendered the patient a vegetable with a life-sentence. I was a little stunned. In my mind, the root cause of this injury was the late diagnosis which occurred getting him to us in the first place.
There were depositions: “So, Doctor, you have performed how many intubations in your life? Would you describe yourself as, proficient? Can you explain how a heavily sedated man in restraints could extubate himself?” Given my insecurities, I accepted the need for the questions, but my answers, even when coached by my lawyer found me feeling and coming across as a kid, out of his league. Reading my notes was painful as years later, they seemed at best amateurish, and at worse, ambiguous. I saw errors or potential interpretations in what I had written that the lawyer did not dive into. Maybe, this would be OK.
The process of the trial was even more difficult and mind numbingly boring. The lawyer said it was critical that we be there every day. This meant time from the office doing what I liked to do and of equal importance, generating bills with which to pay myself. The legal process was long and methodical with each nurse testifying and basically reading their notes into the record and clarifying them. My process was the same, I read my progress notes and at one point, the attorney had this, “gotcha” moment when he was going over the times of the notes and the sequence of events, his suspicion being that the notes were done later than we suggested. He thought my European style seven was a four and made much of this timing in the record. My correction caught him by surprise and that felt good. One conspiracy theory nipped in the bud.
Bill was more belligerent and more sure in his presentation. You would have thought he was the attending for the hospital and his polite disdain of the lawyer was communicate clearly. It was confusing (but Bill got it) when in the lobby, the plaintiff’s lawyer and ours’ chummed it up and planned a social lunch date. All this while I had palpitations, poor sleep, diarrhea. The end was a blur, we were excused for the Jury and in fact, I don’t recall being there for the verdict which in fact attributed harm to both the state and to us, but we got the majority share of the blame.
Sigh. The settlement with the family was in the millions of dollars for his chronic care. The good news, noted our lawyer, was that the judgement was against the county and not against us as individuals. I did take some solace in that, was pleased to be done with all this, and moved on with our growing practice which had grown from an office with 3 exam rooms, then 4 rooms, and finally a large building we helped design, across the street from the county hospital.
I grew more confident with my practice. We three partners covered two hospitals; we provided complex obstetrical care and did C sections. I learned what I did well (I did a nice C-section) and what I did not do well (coming to the ER for a follow up on someone with a broken arm I had casted, I heard nurses, taking a cigarette break, comment on how they knew I had done the cast because it weighed so much…..).
One day, I was called to meet a new pimply faced young man asking for me specifically. I was, once more, served. The Soledad prisoner, now with his life sentence, could not let me go. It turned out, he had an estranged wife who was not consulted when the family sued the County. She was out of luck and could not sue us all over again. She did, in consulting with an attorney, come up with an unusual lawsuit which was as follows:
In the trial, a point of detail was, “who did the intubation that was associated with the Code Blue?” All the progress notes, and all the nursing testimony identified Bill Hunt as that person. However, the State’s security guard (even when you are comatose, an inmate from the penitentiary has an assigned guard in the hospital) who was in the ICU said, “it was the guy with the beard who did the thing before the Code Blue.” Bill Hunt was clean shaven. I was resplendent in a ZZ top-like beard in those days.
The suit proclaimed, that I had perjured myself and lied about the intubation and the team of doctors and nurses present had covered for me. In lying and being incompetent, her husband had suffered irreversible brain damage. She was owed for pain and suffering as well as loss of consortium. Instructions on appearing for a deposition followed. This lawsuit would not be covered by the county attorney as it was a private suit directed at me individually.
Wow.
I had a friend—a patient in fact. He was a lawyer and judge. He presided in Castroville and when I saw him in the office, he usually wore Levi coveralls. He was informal, smart, and happy to help. As it turned out, we had developed quite a relationship in the preceding years. Kernie and I had teamed up for his wife’s delivery in the “alternative delivery room” ie for a natural childbirth. She was clear that she was to have no episiotomy or drugs. The alternative delivery room was furnished as follows: a king sized bed, a set of drawers, an exam light, and an on the wall TV with remote.
As she labored, my friend (her husband) insisted that the NFL playoff game between San Diego and Miami be on. It would turn out to be the longest playoff game in NFL history. This was annoying to both the wife and Kernie but as I was a Charger fan, and the labor was slow, it helped to pass the time. She fully dilated and then began to push. He was great at leaning over, whispering encouragement in her ear while keeping his gaze steady on the game. I had to be a little more focussed, back to the TV but between contractions, stole looks.
The game ended and she delivered within minutes of each other ( San Diego won!).
The culmination of the delivery was a scream, to be heard into the ward full of nursing mothers, “My clit is being split in two!!!!!!”
It was almost true! After delivering the placenta, I found she had a linear tear along side the clitoral hood. It was superficial, and I wisely decided that in the absence of bleeding, I would not put stitches there. My judgement and experience was indeed growing.
The husband, now that he had a healthy child, needed a vasectomy. This was performed with no difficulties other than he chose to ignore my advice about post-op care. He went horseback riding while the local anesthetic was still working. He woke up the next day without unusual pain, but had deep purple bruising that covered half his scrotum and extended to the inner knee. It was a sight to behold. His wife’s eyebrows came together as I explained that horse back riding is generally not advised even when not explicitly stated by the doctor hours after a vasectomy…….No harm no foul. Within six weeks we documented normal skin, normal testicles, and under the microscope, no sperm.
We were firmly bonded so when I presented the lawyer’s case, he got a big smile on his face.
“I would love to represent you in this case, and I will not accept a penny,” he said. I thanked him and then asked about next steps. He agreed to contact the lawyer.
He came back from that communication with an even broader smile, but I could not join him.
“We reviewed his points and I noted that the case would take a long time and the extent of the conspiracy he was suggesting was so outlandish, that his chances of success were remote. I asked what he really wanted.”
The answer? “He wants you to take a polygraph test. This would clear the air from his point of view about the conflicting testimony of the original trial. IF you pass the polygraph, then he wants you to stipulate GUILT in exchange for a penalty of ONE DOLLAR. Once done, the case will close and that will be that.”
Incomprehension.
“Why would I do that? That is the craziest thing I ever heard.”
“Yes it is but his logic is not so crazy. If you do this, the case goes away and we can’t sue him for legal malpractice. If the polygraph shows an ambiguous result, he has a weapon. Also, if you don’t do this, he will simply let it hang without action; you will have to report it if seeking employment or insurance with a ‘yes’ regarding legal actions on-going.”
“So, extortion is a legal thing?”
“Oh, yes my friend, it is. Once more, prosecuting legal malpractice is virtually impossible without pictures and sound to demonstrate child abuse or murder…..”
The advice received was to turn down the offer and let the case dwindle away.
And it did. When it closed, I do not know, but I did have to report that there was a pending case on my forms with Group Health when I applied for the job in 1983. Asked to clarify the checked box, I was delighted as the faces reacted the story of how this had come about.
It was not an impediment to a long and successful career in Washington and more importantly, it became an enjoyable story to relate, especially in a group of doctors each of whom was sure, up to this point, they had heard everything.
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*The presumption that Beethoven’s father conferred syphillis on Beethoven himself having syphilis is not a historical fact—just speculation on the part of the doctor giving a lecture so as to have a dramatic look at the implications of abortion.
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