Firsthand Experiences: The Specter of a Flawed System
Although still early in his career as a vascular surgeon, Ross Milner, MD, has already been witness to some of the most troubling aspects of today's medical malpractice environment.
Endovascular Today: What has been one of the more surprising issues involving malpractice that you have seen since becoming a vascular surgeon?
Dr. Milner: It might have to be the extreme degree to which litigiousness pertaining to medical procedures is a regional phenomenon. For instance, I have not been named in a lawsuit since I've been practicing at Emory in Atlanta. This was not the case, however, during my training, which took place in Philadelphia. For most residents or fellows going through 5 to 7 years of surgical training, it is somewhat the norm to be named in at least one lawsuit, but most do not get named in more than that. I was named in six lawsuits when I was in Philadelphia as a resident, three of which were when I was an intern.
Endovascular Today: You trained at the Hospital of the University of Pennsylvania (HUP)–one of the nation's finest vascular surgery programs. Clearly, this trend is not representative of the quality of care offered at the facility. Would you say that some regions just have that much more of a predilection to frivolous lawsuits?
Dr. Milner: I honestly can't say for sure why there are so many more lawsuits in one region than another, but I was definitely surprised at the reasoning behind a lot of them. One of the biggest differences in the experiences I have had between practicing in Pennsylvania and in Georgia is the difference in the daily mindset of the doctors. I don't mean in the way we take care of patients; that part has been the same. But in Philadelphia, there was a very unfortunate fear that came with caring for patients. I remember countless times when I was in Philadelphia, when something bad would happen, even if it were clearly explained to the family and they seemed to understand that it was part of the possibilities involved in the normal course of events, there was always a fear that you were going to get sued. It was always in the back of my mind. And, it just hasn't happened that way in Georgia. I don't constantly think in the back of my mind that I'm going to be sued because something bad happened. Regardless, I wouldn't order a test or put an extra stent in because I'm afraid someone will sue me, but I think that fear could potentially cause someone to at least hesitate for a moment.
Endovascular Today: Do you think the local legal cultures are different?
Dr. Milner: I think that's probably part of it, but there is also a difference from the patient perspective too. It seemed that when people came to HUP, they automatically thought that the hospital was supposed to be great and that they would get fixed no matter what, and if the doctor did something wrong or there was any kind of poor outcome, then obviously the doctor deserved to be sued. In Georgia, it seems as of people are very appreciative when they come to Emory. They seem to always tell you that they know you're doing the best that you can do, and they appreciate everything you are doing. You do not get the same kind of entitled attitude, which seemed more prevalent in Philadelphia. I don't know if that is just my perception of the situation now, but it just seems that the people I see now have a much different attitude about the care they receive than do the people in Pennsylvania. Another unfortunate contributing factor was that a lot of people in Pennsylvania knew that if you did well enough with a lawsuit, it was better than winning the lottery.
Endovascular Today: Of the cases you were named in as a resident, were any particularly troubling to you?
Dr. Milner: The case that sticks out in my mind the most involved a young man who underwent a kidney transplant that had a transplant renal artery stenosis. I was an intern on the transplant service, and the patient came in for a repeat angioplasty due to recurrent stenosis. During the repeat angioplasty, the renal artery was dissected, and the kidney transplant failed. This is a horrible outcome, but it is also clearly a known complication of a procedure like that.
The patient went back onto dialysis and got re-listed for a kidney transplant, both at the University of Pittsburgh and at HUP. The day after he got his second kidney transplant at Pittsburgh, he sued HUP; he didn't sue HUP for the complication until after he had undergone the second transplantation and they knew his name was coming off the transplant list at HUP.
I was one of the only residents named on the lawsuit and, ironically, part of the deal was that I had gotten to know the patient quite well. I had taken the time to get to know him and his family, especially when the complications happened. We all felt very badly about that. But, they clearly knew my name.
Another unsettling element is there was a pair of physicians–a transplant nephrologist and a neuroradiologist–who worked at HUP who had the same first and last names, but they had different middle initials. The plaintiff's attorneys didn't know which of the two to name, so they just named both in the initial draft of the suit. This is just one example of how the small (and sometimes ridiculous) details of these lawsuits can result in personal nightmares. I think that suit ended up being settled, and I was dropped right away because I was just an intern, but at this early stage, a few harsh realities became very clear to me. The first time something like this happens to you, it is horrible.
Endovascular Today: In your opinion, what is the most flawed part of the malpractice litigation process?
Dr. Milner: I think the part that bothers me most is way in which expert witnesses are used. The fact of the matter is that if some people get paid enough money, they will do or say just about anything. This is perhaps more problematic when it comes to plaintiff's experts, but it extends in both directions. I have been offered many times to participate in medical defense, but I have never done it. I just do not want to get into that business at all. I believe there is an important role for people who want to do medical defense, but it's just not something I've wanted to do.
There was a case that I heard about early in my residency that really made me question the credibility of expert witnesses in these cases. The patient had come into the hospital in cardiogenic shock, and he had emergency coronary surgery but was not recovering well. The patient was on a balloon pump, pressors–the whole deal. Embolectomy was attempted for an ischemic leg, but it ultimately required an amputation. A lot of the doctors involved with the care of this patient got sued. Ironically, the biggest complication was the heart surgery, but that is not what the plaintiff sued over. The plaintiff's representation was able to find some cardiac surgeon to be their expert witness, and he testified that a distal bypass should have been performed in this critically ill, dying patient who was on pressors. No one in their right mind would do this in a million years! That is another 6- to 8-hour operation under general anesthesia when they are already sick. It is just not feasible.
So, they enlist this expert witness, who was not truly an expert. He was a cardiac surgeon, not a vascular surgeon, and no vascular surgeon would have performed a distal bypass in this patient. In addition, the plaintiff is showing up daily in the courtroom, in a wheel chair, trached, coughing and hacking up all this sputum, and the jury heard this expert witness and saw this poor lady and awarded a rather large sum.
Overall, what really troubles me is that although there needs to be a system of checks and balances so that people are not consistently making the same mistakes and repeatedly hurting people, once-in-a-blue-moon poor outcomes can result in good doctors losing their entire careers or medical licenses. That seems entirely flawed and unfair to me.
Ross Milner, MD, is an Assistant Professor of Surgery in the Division of Vascular Surgery in the Emory University School of Medicine, Atlanta, Georgia. Dr. Milner may be reached at (404) 727-8407; firstname.lastname@example.org.