Malpractice Revisited

My last blog entry was modified and submitted as a comment to an op-ed written by Nicholas Kristoff in the New York Times on June 25, 2009. In his article, Mr. Kristoff insisted that tort reform was an essential element of lowering medical costs and completely overlooked the value of exposing shoddy medical practices in elevating the standard of medical care. I submitted my comment as follows:

Tom Bleakley
Bradenton, Florida
June 25th, 2009
6:30 am
The unwarranted plea for tort reform by Mr. Kristoff needs to be addressed specifically because there is so much propaganda about so-called nuisance lawsuits that one of the purposes of tort litigation is often overlooked. In my view, malpractice suits serve not only to compensate victims, but to elevate stqndards of practice by calling attention in a meaningful way to lax behaviors which harm patients. I need to present a couple of examples of typical medical malpractice cases I handled over my thirty five years of law practice.

Case #1: My client was an emotionally disturbed ex-nun who left her convent after fifteen years (at the age of thirty two). She spent two years trying to establish a social life all the while teaching at a public elementary school. Her inability to relate well to others led her to a prominent psychiatrist who she saw weekly for thirteen years. The last ten years of her treatment with Dr. X consisted of her performing fellatiio upon him for forty five minutes while he looked at the pornographic pictures in the magazine she purchased for him that particular week. It should be mentioned that sex under the guise of therapy is a felony in the State of Michigan punishable by ten years imprisonment. It should also be mentioned that patients under psychiatric care undergo what is termed transference. In short, they fall ‘in love’ with their therapists. Ethical therapists recognize that transference is a valuable part of the treatment process and consciously use a variety of acceptable methods and practices to benefit the patient. Ten years after this therapy my client remained an emotional recluse, hoarding objects and animals in her home and rarely ventured outside.

Case #2: My ciient was a young wife and mother pregnant with twins. She had the misfortune of going into labor on a Friday evening, during her obstetrician Dr. Y’s cocktail hour. Dr. Y showed up after having imbibed three martinis and delivered the children. The first child was delivered safely and is entirely normal. He dropped the second infant on her head in the delivery room and the retarded child will spend her life in a wheelchair resulting from the damage to her brain from the fall to the floor. Dr. Y was known by hospital personnel to have a drinking problem for at least five years before this incident. At least three nurses present at or prior to the delivery of these children recognized that Dr. Y should not be permitted into the delivery room. A resident in the third year of obstetrical training was present during the delivery and testified that Dr. Y insisted on performing the delivery without assistance.

I could go on and on, most particularly in the area of malpractice situations arising from ignorance about prescription drugs; the area where I spent the vast majority of my professional time. But these examples will suffice to make the point I need to make. In each of these cases, prominent colleagues of Drs. X and Y ventured forth and gave ‘expert” testimony as to why the acts of each of them were within the standard of care and were appropriate given the circumstances in each of the case. Never once in thirty five years of practice did I encounter a situation in which the doctor admitted fault and agreed that he had harmed my client without encountering a staunch defense and the defense of the doctor’s acts by his fellow physicians.

It should be stated that most states already have strict procedures in place to ensure that so called nuisance cases do not find their way into the system. In short, there is absolutely no need to further restrict the rights of our citizenry under the Seventh Amendment to the U.S. Constitution to pursue legitimate claims against physicians and hospitals, as well as other medical care providers. The elimination of all medical malpractice cases has long been the mantra of the American Medical Association and the Republican party. To cave in to these special interest groups under the guise of reducing medical costs will only reduce the quality of care for all of us. Sorry, Mr. Kristoff, but you are absolutely on the wrong side of this issue.