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When Death Approaches

Malpractice or Bad Luck?

The threat of being sued for malpractice is a specter that haunts every American doctor's life. Our legal system has gone awry in its effort to mete out justice. In addition to punishing those few doctors who have performed inexcusable acts of negligence, we punish good doctors who have simply had bad luck.

A friend of mine, who happens to be an excellent doctor, recently stood trial for malpractice. More than four long years ago, he sent a patient home from the ER and the patient died shortly thereafter. My friend was being sued because the patient's family had become convinced that he had not done an adequate job of preventing the death. In my humble opinion, as well as those of many other physicians, there was no way he could have foreseen the tragic outcome.

I went to watch the trial as a gesture of support. I know how much anguish my friend went through preparing for it. As I sat in the courtroom watching the proceedings, I was struck by the irony of this situation. A very sad and unfortunate event had occurred; a man had died an untimely death. The doctor felt terrible about the family's loss, but did not think that he had committed malpractice. Now he was being made to suffer for something that he had no control over--and to what end? Was this punitive experience going to make him a better doctor?

The plaintiff's attorney clearly tried to make him look incompetent. Witnesses were called to the stand, other doctors with fancy titles--some who make a business of criticizing other physicians. They said some very damaging things that were simply not accurate. I felt the very real urge to stand up and shout a warning to the jury, to call BS on these shysters.

Then my friend spoke in his own defense. His strategy was brilliant; he taught the jury about the medical facts involved. He happens to be a gifted teacher and he was in his element. The lawyers made their final statements and suddenly, it was over. The jury was sent out to deliberate.

After just minutes, the verdict came back; the jury had seen through the plaintiff's ploy and absolved my friend of any wrongdoing. While immensely relieved, it did nothing to restore the two years of agonizing about whether he would be bankrupted or whether he would be able to continue working with this charge on his record.

A few weeks ago, I was trying to explain our medical malpractice system to a friend who was visiting from Africa. He works in the refugee camps of northern Uganda, where hundreds of thousands of victims seek shelter from a senseless pogrom. I tried to explain that if a doctor was convicted of making a mistake, not only would he have to pay for any medical costs and lost wages, but he would likely have to pay for the "pain and suffering" incurred by the patient and his or her family.

Coming from an environment where pain and suffering are the norm, he could not comprehend that such a system should exist. "But that is just bad luck," he exclaimed, "Why should you have to pay someone for their bad luck?" For all its troubles, there are days when I feel like maybe I should move back to Africa and away from this nonsense that we call justice.

Bad luck is a fact of life; it happens to all of us, sometimes in small inconsequential ways, but sometimes in severe life-altering or life-ending ways. As doctors, we do our best to listen, to examine, and to interpret complicated tests; then we try our best to advise. We realize that our patients are going to die sooner or later. We realize that we will never be able to predict every death. We realize that there is a high likelihood that we will be sued at least once during our career. We carry on with the work we love and do our best to avoid becoming consumed by fear.

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