Assume the Position: Memoirs of an Obstetrician Gynecologist (18 page)

     For years it was a highly successful formula. We got along well, the practice flourished, and everyone was very well paid.  Not everyone had equal skills and interests, which was perfectly acceptable.  Whenever possible we would self refer within the practice. For example, some folks did not want to do abortions themselves or had not been trained to do them. Not everyone enjoyed performing amniocentesis. We all did ultrasound, and had four ultrasound machines, one in each office.  Not everyone wanted to be involved in clinical research. No one else had an interest running the finances of the practice or involvement in the business of medicine. Not everyone wanted to aggressively pursue new business opportunities.  Everyone was just asked and expected do the work that was there, do it well without complaints, show up every day, enjoy their work and work hard.

     What did become a problem over time was that not everyone worked at the same pace, and not everyone wanted to so that productivity did became an issue, as did petty jealousies.  What also became a problem, though it was never visible or even discussed with me, was that not everyone enjoyed the wide diversity of patients we had in the practice. To me, a woman who needed our services should be a patient.  Who she was, or where she came from, or what niche of society she came from was of no consequence to me. We were in the business of providing reproductive medicine services to women.  Period.  But not everyone evidently saw it that way.

     As we expanded, I was asked by some of my then partners to explore the opportunity of opening a new office in the more upscale Paradise Valley section of Phoenix, which I willingly pursued.  I was glad to finally see some interest in a new venture that was conceived by my younger partners even though they did not have the ability or wherewithal to get it off the ground by themselves.  It took much time and energy for me to do so, finding a new office space in a brand new building adjacent to the hospital, building out the space from scratch, and furnishing it from scratch with the latest and best equipment and furnishings, lease signing, etc. It was clearly an investment for the practice, since it took funds but seemed well worth the expense.  We had to recruit and reassign new office personnel.  Everything that was necessary to get a brand new office up and running in a new part of town, from specula, to lights, medical equipment and ultrasound, to exam tables, computers, furniture, the whole gamut.  Then further working out arrangements for night call and divesting their positions from our other offices. When all was said and done, it was a beautiful office and successful from day one.

     Much to my surprise, naïve and unassuming as I was, I came to a routine partner’s business meeting one day after work to face a mutiny from four ‘partners’.  I had spent incredible time setting them up in this new office, in addition to teaching them the ins and outs and all my experience gleaned over the years about how to run a business and make a living as an OB GYN physician in Phoenix. The long and short of it was they announced they no longer wanted to be partners.  They wanted out of the practice, and they wanted the new office for themselves.  I was blindsided, hurt, annoyed, angry, deceived and mostly disappointed not only in them, but also in my own lack of insight.  They gave the rest of us two options. Either buy them out of the practice according to the buy sell agreement we had; or just give them the new office, furnishings, equipment, personnel and patient load, and they would be gone.   I was never so disappointed with four human beings in my life.  On the one hand, I guess I should have been happy that they liked, and deserved, each other as much as they did, since they had all been hand picked over the years and evidently got along quite well with each other.  On the other hand, it was the most deceitful thing I had ever seen or been a part of.   They had arrived in Phoenix, as did I, with not a single patient of their own or without any knowledge of how to build a practice or run one.  They learned everything from those of us who preceded them, including clinical research in which they rarely participated. I suppose I was naïve and trusting, which evidently I clearly had been, because the rest of us who were being deserted knew nothing of the scheming and behind the back machinations that went on.  They learned the business of medicine from us, they learned how to get what they wanted, they wanted cleaner and more upscale patients to their liking, they wanted hand picked office personnel that they recruited from our offices behind our back, they hired a lawyer, they wanted and wanted.   They had been very well paid for their services over the years, despite less than equal productivity, which was clear from the accounting figures that had been kept over the years. Yet they had derived equal salaries and benefits.  What dismayed and disappointed me the most was my own poor judgment in assessing their personalities. After hours of legal arguments, they got what they wanted. I was glad to see them go and get on with my life without them.   Everything in life is a learning experience. Such is the business of medicine.  My wife had expressed doubts from the beginning about the ringleader, but I failed to listen!  If only I had trusted my wife’s judgment from the beginning. She was indeed correct.

     The legal definition of medical malpractice is when a physician violates what is the accepted standard of care for a physician practicing in the same state given the same or similar set of circumstances, and that the violation of standard of care directly caused the injury sustained to the patient. It does not mean that just because there is a bad outcome, i.e. a maloccurrence, that malpractice has occurred, a concept that the average layperson is not easily able to distinguish. In many cases a lawyer is unable to distinguish this difference as well. Lawyers are thus obligated to find an expert witness in the field who can advise them whether or not the standard of care was violated and caused the injury.  Conversely, the defense team will also try to find an expert witness to opine the contrary, stating there either was no violation of standard of care, or that there was a violation but it did not cause the injury.  This leads often to dueling witnesses in the courtroom, and the jury must decide who to believe, what other circumstances were at play, and if there should be a financial award and how much.  If there is a reward, it is paid from the physician’s medical malpractice insurance carrier to the injured party. Physicians are required to have malpractice insurance in most states, and most hospitals will not allow credentialing of a physician unless they show proof of malpractice insurance from the carrier.  Thus physicians must purchase malpractice insurance at a hefty cost (the premium) which is determined by the insurance company, and over which the physician has no control.

     The crisis is a two-fold crisis. First, the cost to the physician is enormous.  At its worst when I was in active practice, the only malpractice carrier in Arizona charged OB GYN physicians and neurosurgeons the highest premiums, ours being $100,000 per year/per physician just for the right to practice medicine.  If one didn’t pay, one couldn’t practice.  It was outrageous and unacceptable, but there was no choice.  The second part of the crisis was in some states where physicians did not have the financial ability to make that annual premium payment; they couldn’t practice medicine and had to leave the state to practice elsewhere. This caused shortages of certain medical specialties in some states, with few options for patients who needed the medical care. Thus, the medical malpractice crisis was created.

     The insurance company that hires the legal defense team clearly wants to minimize their insurance losses.  Thus, at times, the insurance company will offer a settlement after a lengthy deposition process rather than go to trial to find out what in fact happened, and what the plaintiff’s expert witness has to say under oath and cross examination by the defense team during the deposition.  This results in a large number of medical malpractice cases pursued by patients with the remedy from the courts, if found negligent, being financial remuneration for the injured or the plaintiff.  In some states, such as Arizona, the mere filing of a case also triggers a review of the facts of the case by the State Board of Medical Examiners, with the possibility of restrictions of one’s license to practice medicine, or worse yet loss of license and livelihood.

     My first experience with all of this was as a resident physician in Philadelphia.   During the daytime I was on the GYN service, but at night when on call I needed to perform a Cesarean section on a patient who had been acutely ill with preeclampsia, a hypertensive disease of pregnancy, and worsening for days.  She remained under the watchful eyes of some fellow residents who tried to get her as far into this premature pregnancy as possible to maximize the chances for the baby.  They were walking a very fine line between jeopardizing maternal welfare and maximizing the fetal welfare.  Preeclampsia, a potentially severe hypertensive state of pregnancy, often presented this dynamic.  When I came on call that evening and met her for the first time, I quickly realized how ill she had become and decided she needed to be delivered immediately for maternal reasons, so I became the surgeon of record on the case. The surgery went without incident, the baby turned out fine, but the patient wound up in the ICU where for the next five days the obstetrical and medical team cared for her.  Unfortunately the patient expired from cardiac arrest and pulmonary edema while in the ICU five days later.  I had not seen her before or since the surgery since she was not on my service, but I remained the surgeon of record.  When her family decided to sue, I was named in the lawsuit, as were others.  It took months to get me dropped from the suit. My defense attorney successfully argued that I was one of the few people who actually did the correct thing by recognizing how sick she was and getting her delivered.  I am not sure that argument helped anyone else, but it did help me.   It was, however, an emotionally trying experience, not one that I was eager to ever find myself in again.

     The busier and more successful our practice became in Phoenix over the years, the more opportunities and challenges came my way. When I was chairman of my hospital OB-GYN Department for four years there were many additional responsibilities, meetings and duties that came with the title.  Our department had established a set of criteria regarding hospital charts and cases that required automatic peer review.  If there was less than an adequate outcome in either an obstetrical or gynecologic surgery case as defined by these agreed upon criteria, the chart needed peer-review that became my responsibility.  After reviewing the chart, if the care appeared to be substandard, the staff physician was notified and asked to be in attendance at the monthly hospital department meeting for a detailed discussion of the case and corrective action if the rest of the department concurred. The fact that these were colleagues that I saw regularly in the hospital and who elected me for the position didn’t make the job any easier. Potential restriction of hospital privileges was always a touchy issue.  My partners and I were subject to the same peer review by other staff members if one of our charts was reviewed for established criteria.  These meetings were reminiscent of my days back at Pennsylvania Hospital where daily peer review by the Chief of Staff was a way of life.  I was comfortable in this role.  As a result, I suppose by reputation, over time medical malpractice defense attorneys began to hire me as an expert witness defending other OB GYN physicians who had a malpractice claim filed against them.

     One such case was filed against a friend and neighbor of mine.  He had done a suction D and C on a patient who miscarried.  Because he was not an abortion provider, he had little experience doing this procedure on a pregnant uterus, much softer than a non-pregnant uterus.  He inadvertently perforated the uterus with a suction cannula that then went into the patient’s abdomen and suctioned the appendix off the intestine.  He realized this immediately when he saw the appendix at the end of his suction cannula.  Had he purposely tried to do this it would have been next to impossible to accomplish – just one of those bad outcome events that didn’t necessarily imply medical malpractice.  The patient needed emergency abdominal surgery.  He did this surgery immediately with a general surgeon and months later the woman required a hysterectomy as well.  The patient sued him and I was retained to help defend him as the medical expert.  This was my first foray into the medical malpractice arena as an expert witness. We successfully defended him because although she had sustained injury, it was a recognized complication of the procedure and was handled appropriately and immediately without delay. On the one hand it was always important to show concern and compassion for the patient in front of the jury no matter what the injury. It was also important to balance this with the medical facts and recitation of what the Standard of Care required of the physician once the complication occurred. It was a fine line to walk in front of the jury from the witness stand while seated just feet in front of them. They watched every emotion from the expert in front of them, as well as listened intently to every bit of medical information explained to them in layman’s terms so they could understand the case better.  As the years went by, I became more involved and accomplished in the medical malpractice area.  I found that I enjoyed the work and the drama of the courtroom, and that I was an effective expert witness for the defense.  For me, it was a chance to show my professionalism, spontaneity, ability to communicate extemporaneously, challenge attorneys face to face who often thought they knew more medicine than I did, and a chance to help my peers. It was also a chance for my legal genes to express themselves.

     The year after I stopped my clinical practice and before we moved from Arizona to Colorado I was retained by the Arizona Board of Medical Examiners to review obstetrical and gynecologic physicians who had come before the Board for potential discipline for one reason or another. At the Board’s request I offered my opinions as to whether Standard of Care had been met in the case at hand before they decided on what if any restrictions to place on the physician’s practice or license. I also had the opportunity to serve on a committee sponsored by the Mutual Insurance Company of Arizona and the Arizona Medical Association to review and advise on the merits of cases against their insured physicians.

     When I later decided to hang out a consulting shingle on the Internet after retiring from active practice it didn’t take malpractice plaintiff’s attorneys long to find me.  I was sent many cases to review, most of which I rejected because I saw no deviation from Standard of Care.  Frankly, most of the Plaintiff’s attorneys compensated me simply to find out their case had no merit.  When a potential plaintiff came to them with a case, the attorneys, who were not medical experts by training or license, could not decide if the standard of care had been violated. That required an expert witness. But when told they had no case, as I often did when I reviewed the chart, they cut their financial losses and time and moved on. 

     Then there were those cases where upon my review Standard of Care had been violated and caused injury, and in my opinion those cases should move forward through the system as it existed.  I, like most physicians, was not enamored with the medical malpractice system. The system had many faults and needed to be changed, but I was never in a position to change the system so I worked within its constraints.  Frankly, if most hospitals had handled the substandard care within their own departmental committees as we did at the hospital where I was on staff, care would have been improved through local censorship and correction.  But most physicians weren’t interested in that kind of system or local pressure through peer review. There was too much turf protection going on. So cases wound up in the courts and expert witnesses were needed to move the cases forward.   If the cases were not settled out of court then trial occurred in front of a jury.  I had no trouble testifying against physicians who in my opinion fell below acceptable standards.  It was really just an extension of Morning Report at Pennsylvania Hospital from years earlier, a necessary life long peer review process for me. Most of the cases that I did accept were settled outside of court, as they should have been, with the insurance companies paying on behalf of their insured physicians.  But a few did go to trial in front of a judge and jury, and I did travel across the country for trials.

     Some trials were more memorable than others.   In one case in Colorado I told the lawyer he indeed had a good case from a medical standpoint, but if I were on the jury I wouldn’t award more than $50,000 to the patient who had a surgical sponge left in her abdomen and required another surgery to have it removed. Sure there was an unnecessary surgery performed, and some additional loss of wages for a few weeks and some pain and suffering.  Which is why if I were on the jury, $50,000 seemed reasonable to me.  After expenses, it hardly seemed worthwhile to take the case in my humble opinion.  He rightfully advised me that was not for me to decide. He obviously thought otherwise, took the case and a jury rendered a $1million verdict. My role had nothing to do with the jury deciding how much money to award. That part of the trial was left to other actuarial and financial witnesses, and ultimately to the jury behind closed doors. Clearly the medical facts of the case were presented well to the jury. That was my role.

     Compensation for the Plaintiff’s attorney is usually through a contingency fee. This means no up front charges to the injured patient, but if a jury award comes back, the plaintiff’s attorney receives an up-front agreed upon percentage of the award.  The attorney was usually responsible to pay out of pocket expenses to get the case to trial, including expert witness hourly fees.  But as one can see, if an attorney is getting 33% or more, they do quite well in a successful medical malpractice case.  Their financial incentive is to take a case with merit, and to pursue it to a jury if necessary.  On the other hand, the defense attorneys hired by the physician’s malpractice carrier are paid by the hour, so they have no financial incentive to settle a case early in the process and will often not deal with a settlement offer until right before trial, often to maximize their own reimbursement through hourly charges.  The trial lawyers tend to support the Democratic Party through political donations; thus the Democrats have little interest in changing the system as it is because of considerable trial lawyer lobbying money.  Conversely, the Republicans support business, in this case the insurance industry, and lobby hard for change so that the insurance companies can be more profitable.  Definitely this is a bad system all the way around, for everyone involved, and fraught with abuse.  There needs to be a better solution.  It is a crisis from every conceivable angle. As my Dad used to say all the time, ‘ If you don’t like a law, change it.  In the meantime, it is still the law.”