Go for the DNA!
"Malpractice: To settle or fight" [Aug. 3] did not elaborate the downside of settling, completely.
After twenty years in practice I was sued, while covering a colleague for the weekend. No case like it had ever been written
up in English-speaking-world literature, and the treatment of the condition was still evolving and experimental. However,
the chorus of expert witnesses, as well as one of my practicing colleagues, provided expert opinions and a certificate of
legitimacy to file the suit. Existing text, as well as research articles supported my action.
Coming from a nonlitigious society and having no experience with legal proceedings, I succumbed to the ongoing intimidation
by the plaintiff's attorney after five years. My attorney, as well as a personal attorney hired on a recommendation, failed
to intervene and they hinted to me on occasion to settle. I spoke to some of my senior colleagues and they all advised me
to settle. I relented, and what followed was a nightmare of the worst kind. My insurance carrier increased my premium from $4,000 to $30,000, terminated my liability coverage, and then cornered me to
buy a tail for $30,000 or retire. With retirement as no option, I found inflated liability coverage from the secondary market
for $30,000 each year since the settlement.
I found that I became unemployable. No one returned my calls after job applications. My friends and colleagues avoided me,
knowing that I would ask them about employment situations. The hospital where I was trained suggested I try elsewhere for
a nonclinical position. In the meantime, I had to write to the state regulatory body to keep my license and avoid disciplinary
action, including losing my license to practice.
Somehow I weathered the storm to find out that I had been named in another lawsuit. (I can't help but think that the first
settlement attracted the second suit.) This time, despite all kinds of coercion, road blocks, and difficulties with my attorney
and insurance company, I knew I stood on solid scientific ground.
I prepared thoroughly to support my position. Neither my attorney nor insurance company followed any of the leads I gave in
my deposition. However, the hospital who was a co-defendant in the case had an astute attorney who chased the leads and brought
the luminaries in the field to defend the hospital on the premise I was fighting. The hospital settled for a small amount.
But I declined, and in no time I received a message that the plaintiff had decided to withdraw the case!
These were five long, stressful years, but every morning I woke up with confidence that the scientific facts would vindicate
me. I kept on telling myself that once the images of the tissue were projected on the screen, side by side with normal tissue,
no jury on this planet would side with the plaintiff, and indeed the science paid off.
My message to my colleagues is "never give up" if science is with you.
Amar Dave, MD
Ottawa, IL
Should you go to court?
To settle or fight a malpractice suit is an interesting topic given our litigious society, and the fact that malpractice is
generally no longer malpractice but a human lottery based on emotion rather than the tenets of law. Toss in a jury system
that likes to reward the plaintiff, and it has gotten entirely out of hand. If we had the British system where the loser pays
the legal fees of both parties—with some concession for those that are indigent—we would all be better off.
We will encounter patients who have issues with care, evaluation, fee, or how they perceive they were treated. It's important
to consider the timing of the patient's complaint and his emotional status.
If a patient raises an issue proximate to the time of the visit, it carries more weight in the decision process. If there
was what could be perceived as a legitimate issue, good customer service leads us to make every attempt to resolve the issue
fairly for all parties.
