Column: The Futility of Medical Malpractice Suits

Trevor Noah, the host of Comedy Central’s Daily Show, recently sued the Hospital for Special Surgery and at least one orthopedic surgeon for malpractice. The reason for the lawsuit has not yet become public: the filing submitted in connection with events in 2020 simply lists the usual boiler-plate claims of failures to provide timely interventions, adequate investigations, informed consent, etc.  Precisely what angered Trevor Noah to prompt this suit will become public knowledge in months or years to come, but all that can be ascertained from the information released to date is that this highly intelligent, unusually articulate, seemingly unflappable, young man is ticked off.

Thousands of malpractice lawsuits are filed against hospitals, doctors, and other health professionals every year in every state. Most are settled out of court. Lawyers for insurance companies that carry the malpractice policies for healthcare facilities and providers being sued meet with the lawyers representing the people bringing suit and agree on monetary awards, or they go to court and let a judge or jury decide if the case has merit. Many states require doctors to carry malpractice insurance if they want to maintain a license to practice medicine in that state.  It is similar to the requirement that motorists carry auto insurance if they want to own and operate a motor vehicle. Some cities with municipal hospitals are self-insured. In other words, if the hospital gets sued and loses, the taxpayers pay. This all sounds straight-forward, but it is not.

Trevor Noah and his lawyers will need to provide documentation proving that the hospital and any doctors named in the suit deviated from the ‘standard of care’ in providing services. The standard of care is what a reasonable physician or facility dealing with the plaintiff’s (the patient’s) problems should have done, given the resources available to the defendants (the hospital and healthcare providers). Trevor’s lawyers will file a detailed complaint, itemizing who failed to meet the standard of care, what those failures were, when those failures occurred, and what the consequences of those failures were. Witnesses will be called to testify before any court action or arbitration begins to establish what did or did not occur. Medical records will be subpoenaed. Individuals alleged to be experts in the areas relevant to the lawsuit will be called upon to review the records and testimony of people named in the lawsuit. Formal depositions will be conducted: this is the sworn testimony of the plaintiff and the defendants and the experts and anyone else who might have information deemed relevant to the case by either the defense or plaintiff lawyers. How long does all this take? Usually, several years. Is this lengthy process expensive? Yes, very. If the plaintiff wins, does the doctors or the institutions sued face any sanctions? Usually, no. Does the victorious plaintiff end up with a lot of money? Hardly ever.

The entire process is slow, cumbersome, expensive, and hardly ever satisfying. In a case of egregious patient mismanagement, the doctors and institutions being sued may make an offer to settle the suit, but only after the plaintiff’s attorney has spent many hours working on the suit and paid numerous expert consultants a lot of money to build a case that is ready to go to trial.  Most cases are pursued on a contingency basis. This means that the plaintiff’s lawyer gets a percentage of any settlement or jury award. This can take a large chunk of money out of the cash that is left after the plaintiff’s lawyer takes money to cover his or her expenses. If a case does go on trial after 5, 6, 7 or more years of preparation and delays, the jury award, even if the plaintiff wins, may be less than the cost of bringing it to trial.

The real question then becomes, “Why bother?” The nineteenth century, British politician William E. Gladstone famously said, “Justice delayed is justice denied.” In most malpractice actions, the delays in the process outweigh any semblance of justice being served.  The cost of participation in the endeavor is prohibitive, and the societal impact of the outcome is negligible, aside from the financial burdens imposed on lawyers and insurance companies.

In most cases, the engine driving the process is not greed, despite how prominently money plays a role in supporting and sustaining the malpractice action. The real driving force is usually anger. We allow hospitals and doctors to do things to us that we trust no other institutions or individuals to do. We trust them and rely on them to act in our best interests. When they betray that trust or simply fail to deliver on our routine expectations, we, the patients, want them to be punished.  Unfortunately, many of the truly grave sins committed by healthcare institutions and providers go unrecognized or uncorrected.

An African-American woman who grew up in the deep south was investigated in her twenties for infertility.  She had had an appendectomy as a child. Investigations revealed that the racist surgeon who operated on her when she was a child had sterilized her. No action was brought against the surgeon since there was no documentation to prove he was responsible for this crime. A board-certified neurologist diagnosed more than a dozen patients with an exceedingly rare neurologic condition which required several hundreds of thousands of dollars of medication to treat. The insurance companies providing coverage for these patients paid millions of dollars to supply them with the prescribed treatment. The neurologist retired to Hawaii while she was still relatively young. The physicians taking over the care of her patients found that none of them fit the accepted criteria for the disease she had diagnosed them with and treated them for. These patients had all received months or years of inappropriate treatment. The physician responsible faced no financial or professional penalties.  A plastic surgeon assured a young woman that her back pain would be relieved if he did breast reduction surgery on her.  He claimed to have done many successful operations on women with similar complaints. She agreed to the surgery.  The surgeon botched the surgery, and the patient sloughed off both of her breasts. The surgeon’s privileges were unaffected by this horrific outcome.

In the end, in these cases and in innumerable other cases, grave injuries inflicted by negligent physicians and institutions face no redress. Although malpractice insurance is exorbitantly high because of the risks we face when trusting to our healthcare institutions and providers, the burden of that cost provides no protection against incompetence. We need hospitals, doctors, nurses, drug companies and medical device manufacturers. We accept the risks associated with interacting with them because we need them, especially in times like these. If they fail us, we can yell and cry and sue, but nothing changes.

Dr. Lechtenberg is an Easton resident who graduated from Tufts University and Tufts Medical School in Massachusetts and subsequently trained at The Mount Sinai Hospital and Columbia-Presbyterian Medical Center in Manhattan.  He worked as a neurologist at several New York Hospitals, including Kings County and The Long Island College Hospital, while maintaining a private practice, teaching at SUNY Downstate Medical School, and publishing 15 books on a variety of medical topics. He worked in drug development in the USA, as well as in England, Germany, and France.

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