Court-ing Disaster

[EDIT: Some lawyers in the comments say various factors about this case sound very fishy. I know what I heard at the lecture, but it’s starting to seem more likely that the lecturer made this whole thing up or at least seriously embellished it. I have ensmallened the post below as a sort of retraction and apologize for believing everything I hear at a large and well-known hospital system’s extremely official medical education lectures which, I may add, are the same lectures that provide the information your doctor is using to decide on treatment for your life-threatening illness]

There are lots of tips for the homeless about how to get free stuff, so here’s mine: buy a white coat ($15) and a stethoscope ($20). Then, every morning and afternoon, walk into your local hospital and look for signs directing you to something like “grand rounds” or “morning report” or “noon conference” or “continuing medical education”. All of these phrases mean that if you listen to a boring person talk about boring things, you will get free food.

(if somebody starts looking suspicious and asks why they never see you in the rest of the hospital, or why you never seen to be treating any patients, tell them you’re a radiologist)

This tip works even better if you are a real doctor – you don’t even need to waste $35 on the coat and stethoscope! And that was how I found myself in a lecture on how malpractice cases work.

The answer is: not very well.

The speaker, a neurologist, described how he treated a stroke patient. From his description – and I admit, I have only his own words to go by – it sounded like he did a really good job. Didn’t just do it competently, but went above and beyond to make sure that he got the best treatment possible every step of the way.

Unfortunately the guy still ended up permanently disabled, because strokes are bad and even the best treatment doesn’t always ensure a good outcome.

The family decided to sue the neurologist. Upon being told they needed a reason, they and their lawyer came up with “he didn’t give the patient heparin immediately upon presentation”.

I don’t want to turn this entire piece into a review of evidence-based stroke treatment, but suffice it to say that heparin is not usually used for stroke. And anticoagulants like heparin should never be given until a haemorrhagic stroke has been radiologically ruled out, or they might kill the patient. This is an extremely basic point. All stroke doctors know it. I know it. Any medical school students who have been paying attention in class know it. This is not difficult or controversial.

My point is, the lawyers came up with a totally bogus claim that was just barely plausible for people who know nothing about medicine.

So the neurologist was pretty confident that he would win this one easily, and he and his lawyer collected a giant pile of textbooks and studies saying he was definitely right on this specific medical point.

The judge in the case refused to allow any of the textbooks or studies to be presented because they were “hearsay”.

Then the plaintiff’s attorney produced a stroke expert, a leading doctor who had helped write the guidelines for stroke treatment, to come up and say that heparin was the best treatment for stroke and it was malpractice for the neurologist not to have given it immediately, even before the radiology results were in.

Most of you are not in medicine and do not understand how creepy this is, but imagine that some law suit hinged on perpetual motion. In fact, let’s say this is a law suit against you – you’re an engineer, and for some reason someone has sued you for not believing in perpetual motion, and if you lose your career is over. And the plaintiff produces a Nobel Prize winning physicist who testifies that perpetual motion is super easy and happens all the time – and in his opinion any engineer whose machines don’t produce infinite free energy is guilty of malpractice and deserves to lose his license and go bankrupt.

That’s kind of what this was like.

So the defense attorney gets to cross-examine this guy, and points out that the expert wrote the guidelines for stroke treatment. And the guidelines for stroke treatment don’t mention heparin at all.

The expert says well, he didn’t write all of the guidelines, maybe someone else wrote that part.

The defense attorney asks why, if he thought heparin was such an important part of stroke treatment, he still signed his name to the guidelines, and didn’t even publish an article somewhere else mentioning that he wished heparin had been included?

The expert says well, you’ve got to choose your battles.

Then the defense attorney calls up their expert, who is also an award-winning prestigious expert stroke doctor, and who says he doesn’t know what the heck is going on here but everyone knows heparin is not a first-line stroke treatment and this is stupid. Then the plaintiff’s attorney gets to cross-examine him and comes up with BS reasons to sow confusion about his story.

So now the jury has just heard two experts say two different things and they don’t know what to believe. So for them it’s kind of a toss-up.

Luckily, one of the jurors is a nurse, and informs the other jurors that if you know anything whatsoever about medicine, the plaintiff’s case makes no sense. She convinces the other jurors to acquit. So, all’s well that ends well, right?

Not really. Because according to the neurologist, the plaintiff’s attorney met with him on the side and offered him a deal.

The deal was that, before verdict was rendered, the neurologist should pay the plaintiff’s attorney $30,000, which would cover his costs in prosecuting the case and in hiring the medical expert who said heparin was the mainstay of modern stroke treatment. In exchange for the $30,000, if he won, the attorney would ask for damages of exactly $800,000, which was the maximum that the neurologist’s malpractice insurance would pay. If the neurologist didn’t pay the $30,000, then if the plaintiff won he would ask for damages of $2 million. The malpractice insurance would pay $800,000, and the neurologist would be on the hook for the other $1.2 million. Which would easily force him to sell his practice and leave him bankrupt.

Under the circumstances, of course the neurologist payed the $30,000. So, although the plaintiff lost, they still got their costs covered and they still broke even. The medical expert who testified for the plaintiff still got $10,000 just to fly out for a day and spout an hour’s worth of lies, which is a pretty good deal and more than enough to ensure there will be unscrupulous experts willing to testify to any old thing in the future. The only person who didn’t get anything was the disabled stroke patient – but he hadn’t put any work into the lawsuit, so he too managed to break even.

I don’t know if this is a true story. I just have the neurologist’s word for it, and he seemed to have a Paul-Bunyan-sized axe to grind. [EDIT: A lawyer in the comments says the story about the plaintiff’s lawyer is either false or illegal. Another lawyer suggests it might be a version of something called a high-low agreement].

But it sure left a really gross taste in my mouth.

I recall what people tell me about the atrocities that constantly go on in prisons. The terrible conditions, the rapes, the beatings, the people frying to death in 110 degree cells without air conditioning. And the explanation offered is: most people don’t expect to end up in prison, so they have no selfish motive to care.

And I think about what people tell me about the court system. My mother was a juror in a murder trial once. She tells of jurors who didn’t listen to the evidence, who were asleep half the time, who made it all the way to the final deliberation without being aware that the murder victim was dead and this wasn’t an assault trial. And it’s been a while since I last posted the study finding that parole hearings depend as much on when the judge ate lunch as they do on the severity of the crime committed.

I wonder if, in the same way nobody expects to find themselves in prison, nobody expects to find themselves in court. Or at least, the probability of finding yourself in court is sufficiently low that no one has the energy to solve the collective action problem of getting a thousand people with a tiny chance of ending up in court to petition to make the courts fairer. So lawyers and witnesses and plaintiffs can do whatever the heck they want, because everyone assures themselves they’ll never be a defendant and so they have no reason to care.