WRAPPING UP A FULL WORKDAY AT 9:00 P.M., I PULLED THE LAST COUPLE OF ENVELOPES FROM MY “IN” BOX. THE HEAVY MANILA ONE PIQUED MY INTEREST, SO I OPENED IT. “Notice of Intent to Sue...” The wave of nausea and fear that so many of us get at the onset of a chronic disease cascaded from the top of head down through to my feet. My memory took me back 11 months.
Sally began this story with a visit to my office in late June 2000, seeking the appropriate vaccinations for her upcoming trip to South America. Ours is one of only two medical practices in our area that offers travel vaccinations on a routine basis, and we do this for over 2000 patients each year. I remember her mentioning that she was a teacher, which gave me a nice opportunity to establish a rapport with her because my wife teaches elementary school. After determining that she would need four vaccines, we discussed travel risks, including diarrhea and malaria, and I wished her well. I turned her over to Lakesha, the medical assistant who would give her the vaccines, and I went in to see my next patient.
As Mr. Aguilar, my 74-year-old Filipino patient who is unique to my practice, in that he is a survivor of open cardiac massage (his heart stopped in the intensive care unit just after open-heart surgery), was telling me about how he was getting short of breath with minimal exertion, I heard Lakesha yelling, “Doctor Eichel! Doctor Eichel!”
I excused myself and proceeded without hesitation through the adjoining exam-room door. I found Sally curled up on the floor, bleeding from the nose and mouth, with Lakesha bent over her.“She passed out and fell off the table!”
I asked Sally a couple of questions, one of which was, “Does your neck hurt?” to establish that she was able to talk, and therefore breathe, and that we could move her without risk back onto the exam table, which Lakesha and I did.
A quick look at her nose showed that it didn’t have any gross deformities, which meant that even if it were broken, the ENT (ear, nose, and throat) specialist would have had her wait five days before seeing her to allow the swelling to go down. I then turned my
attention to her mouth, and I didn’t like what I saw. The fall had rearranged two of her front teeth such that one was almost behind the other, which suggested a jaw fracture, or at least the need for some immediate dental attention. Her lower lip had split and would need a stitch.
“Do you have a dentist?” I asked her. When she replied that she did not, I excused myself and asked one of our front-office staff to call a couple of local dentists, explain the situation, and try to get an urgent appointment for her.
I then explained that her lip would require sutures. Common sense would suggest that I should be able to put in the stitch and do so free of charge out of consideration for Sally’s misfortune, but insurance companies and lawyers have their guidelines, which forced me to have a different conversation with my patient. I had to explain to her that her insurance company had authorized me to give her travel injections, but not any additional services. If I stitched her lip, she might end up paying for it. Adding to the awkwardness of the situation, I could not tell her I would do it for free. In the realm of lawyers, a service is not a professional service unless the recipient pays a professional fee. Therefore, if I did not bill her for repairing her lip, a lawyer could later claim that I must not have believed I did a professional job because I did not charge an appropriate fee. I could feel her annoyance, but she made the logical choice to just get it done and worry about who was paying for what later. I closed the wound, bringing its edges together and stopping the bleeding. After we cleaned her face, we told her the dentist was waiting for her. She called her boyfriend to come get her, and he took her away.
Lakesha described what happened, and it became clear that this was a most unusual occurrence. People often lose consciousness after vaccines; it happens about twice per year in our practice. But between the third and fourth injections, during the moment Lakesha had turned around to pick up the fourth vaccine, Sally had plunged face first off the table to the floor. Before her fall, she did not say,“I’m dizzy,” nor “I’m not feeling well,” nor give any of the other usual clues. Patients do not fall off the table or out of chairs after a vaccination without warning. I checked with several colleagues, one of whom used to give travel vaccines as often as we do, and they all concurred: this had never happened to them. I went on the Internet and found out that over a five-year period in the 1990s, health-care providers in the United States had reported a grand total of six episodes of serious injuries from falls after vaccines. Lightning had struck in our office.
Sally’s lawyers had their own version, which they set forth in their letter. Weakened from a lack of food for a couple of hours, Sally was at obvious risk for passing out; I would have known this if I had taken the trouble to ask her when she had last eaten. They also cited my reluctance to get her a dentist, my lousy lip repair, my callous reference to the problem of who would pay for my work, and my failure to arrange transportation for her to the dentist as negligence and deviation from standard care. They would be investigating for prior evidence of my incompetence and would seek damages against my employer and all of the hospitals that had granted privileges to such a dangerous doctor.
Attorneys always use such bluster to scare the doctors they sue, and I knew this. Reading a letter such as this about oneself is, however, humiliating, as is much of the process of malpractice-suit defense. I had felt terrible for Sally, as she had fractured her nose and jaw in my office, and I’m sure she had to cancel her vacation, but from the moment I read that letter, I lost all sympathy for her.
Budd, my employer, implored me not to worry. “This is what we get for trying to help people. It’s part of the cost of doing business. There are professionals who deal with these situations, and now you need to let the professionals handle it.”
Lenora, the attorney for our malpractice-insurance carrier, had similar advice.“Please do not spend any more of your time thinking about this. We’ll take care of it.” Taking care of it meant offering Sally about $10,000 to go away without expensive legal proceedings. We had to do this because actual malpractice has little to do with jury verdicts and awards in malpractice cases; what matters more is the extent of the injuries the plaintiff suffers. Because Sally had the two fractures, even though neither caused any permanent disfigurement, I did not have any choice but to approve the offer, no matter how much the idea sickened and angered me, with the assumption that they would accept it and get out of my life.
A few weeks later, I called Lenora to see what was happening.“Sally’s father is an attorney,” she began, and by
the end she had requested that Budd offer her $15,000 to settle, which is approximately what Budd pays annually for my malpractice insurance. It seems that having an attorney for a father increases the damages you can request when you have an unexpected bad outcome from a medical procedure. Budd and I exchanged e-mails and acquiesced. The 90-day deadline for filing the lawsuit was approaching, and I wanted my legal record as a practitioner to remain clean.
A couple of weeks later, Lenora called me back.“Her father is a hot-shot attorney from Long Island, and he won’t settle for less than $145,000.” Now Lenora’s level of annoyance was approaching mine.“He obviously doesn’t have any experience in medical malpractice. Even if this was entirely your fault, the usual settlement would be in the $30,000 range for her injuries.”
Lenora took the next step: calling a mediator. We scheduled the mediation hearing for September 14. Three days before that, four hijacked planes on the East Coast changed our plans, stranding our mediator on the island of Kauai. We rescheduled the hearing for November 8, so I shortened that morning’s patient session to go downtown to a 12th-floor legal office to see if we could accomplish anything.
There I met Kathy, my defense attorney, who greeted me just outside the office door with a wide youthful smile, and she motioned me down a hallway. I followed her long, straight black hair down through an open office door, where Lenora sat behind a wide wood desk. I welcomed her calm, wise demeanor, shook her hand, and took the seat she was pointing me to.
“It doesn’t look good,” she reported. “Their attorney has no experience in medical malpractice. It’s really a subspecialty. He doesn’t seem to have any idea of what is reasonable in a case like this.”
Jack, the mediator, entered the room moments later and concurred. He explained that Dan, Sally’s attorney, held several interesting beliefs. One was that I was a travel specialist, which he held to be something different from a family practitioner that offers travel vaccinations, which is what I am. Because I am a travel specialist, he reasoned, my exam tables should have belted restraints to prevent falls. My patients should be seated in a corner next to a wall. The needle disposal (“sharps”) container should be nearby in a position that allows the medical assistant to throw away each syringe without turning his back to the patient.
Fortunately, Jack had received his share of injections in his lifetime and knew that neither he nor a jury would expect a doctor’s office to have restraints, which we cannot use legally in most situations. Sitting a patient next to a wall does not help, because people who lose consciousness fall forward. Having a sharps container within easy reach of patients, including children, would violate OSHA standards.
We were also having trouble convincing Dan that he was not hot on the trail of a major conspiracy. Our practice had just moved into a new office, and some of our phones were not working that day. I guess Sally had not informed him that our roof leaked, which I would have thought would have just as much relevance. He had checked with the California Secretary of State’s office and had not been able to find the name of our travel medical group in their registry of corporations. Furthermore, Sally told him that Lakesha had said to her that she was new and had not given many travel shots. All of this added up to fraud, in his mind, and would make reaching a settlement much more difficult.\
I verified that travel is not a separate specialty that requires board certification and explained to Jack that I had become one of the main “travel doctors” in our area by attrition when a physician for whom travel was his primary business retired four years ago. And we are, in fact, registered with the Secretary of State’s office.
I asked who was in the other room.
“Sally, her boyfriend, and Dan,” Jack informed me.
“How does she look?” I wondered.
“She’s a lovely young lady. If you aren’t married...”
“She’s fine,” Lenora interrupted, recognizing my intent.“You can’t tell anything happened to her.”
Jack disappeared to meet down the hall with our opponents, and Kathy brought in some sandwiches. The three of us chatted about where we were fr om and our recent vacations.
Jack returned about 20 minutes later with unexpected news. “I’m going to settle this case.” His manner radiated calm and assurance. I wasn’t sure I had heard him, so I asked him to repeat the news and he did. “I went over and said that I had met the doctor and that he reminded me of Dr. Green on ER.” No ting my puzzled expression, he figured out that I don’t watch much television. “That’s meant as a compliment. I told them that their demand was not in the neighbor- hood of where they could think about settling either here or in the courtroom and that if they weren’t going to start the negotiation at $50,000, we should all just go home. They went for a walk, but they’re still here.”
Fifty thousand, of course, was not okay with us, but Lenora knew where Jack was heading, so they enlightened Kathy and me. If the case settled for more than $30,000, it would go on my record. Any thing less than that could go on my employer corporation’s record.Since we knew this was not malpractice, we would not accept anything that would go on my record. But they still believed they had a “boffo” case, so they were not going to accept “small change.”
“They don’ t get it. I expect to go back now and get an offer, and I’m thinking it’s going to be $60,000.” Huh? Didn’t they just agree to start at $50,000? “They’ll think they need to start there to get to $50,000.”
Dan had thought at the outset that Jack would be his ally because Jack represents plaintiffs in his legal practice, but because Jack was not buying Dan’s line about restraints and conspiracy, Dan now thought that Jack was in our camp. “You’re supposed to be a plaintiff ’s attorney,” Dan`had complained.“Why aren’t you helping us?” Jack said he wanted to reply, “Because I don’t take bullshit cases like this,” but he had refrained.
He then joined our conversation for a few minutes and told us about being stranded on Kauai and having to play some extra golf on one of the world’s most beautiful courses. Then he left again.
He came back about 15 minutes later, shaking his head.“They really don’t get it. They offered $68,000.”
“Wow” was all I could say.
Kathy voiced my thoughts. “That’s not even an offer. They agreed to settle for less than $50,000.” When Jack advised us that our next offer would be $22,500, Kathy countered, “W e should offer 21. We should not have to pay 29!”
An amused smirk worked its way across Jack’s lips.“I’m going to have to ask you to leave,” he joked as he lowered his head toward our desk. “You don’t get to speak anymore because you don’t count. Lenora is the one with the money, and she’s willing to go to 29,9. Am I right Lenora?” She nodded. “Then we’ll offer 22,5.
“Look,” he went on. “I explained to them that if I were a juror in this case, I would listen to the doctor’s experts and say, ‘Yes, that sounds reasonable,’ and then listen to your experts and say the same thing; I pretended that I thought what they said sounded reasonable. So what would I do then? I would draw on my ow n experience. I’m guessing most members of a jury would have gotten shots at a doctor’s office. They would remember sitting on the exam table, getting their shot or shots, and if they were like me, they then stood up and walked out of the room. No questions about whether they had eaten. No restraints. Seems like they would agree with the doctor. ” It was clear, though, that reasonable thinking still was not going to prevail in the other room.
“This is like a chess match,” Jack told me. “We have to think several moves ahead to get where we want to go.” I nodded that I understood. “As a family practitioner, I actually do a fair amount of mediating myself,” I offered to reinforce the notion that I really did see what he was doing.
“Now let’s talk about other things for a while. I have to make it seem as though we’re hammering this out over here.”
By the time he made his next move across the hall, I had to leave to get back to work. Kathy and Lenora assured me they would call when they reached a settlement. During the 10-minute walk back to the parking garage and the 15-minute trip to my office, I revisited the themes that had me cursing under my breath and in my sleep for months. In my head, I imagined Sally’s father: an obnoxious, loudmouth, wealthy Long Island attorney in whose world accidents do not happen unless there is someone to blame. He probably would have sued me if a bus had hit his daughter on the way out of my office. He hires his obnoxious injury-lawyer friend without any malpractice experience to represent his precious daughter, perhaps knowing that nuisance and inexperience would increase their reward. They ask for a “mere” $145,000, not realizing that this represents a year and a half of my salary, not realizing that doctors in my area earn slightly more than half what doctors in New York get for the same amount of work. They were not going to get what they wanted, but they would be getting an amount that is customary for a finding of malpractice against me, the doctor. Hey, is anyone listening besides my wife and my mother? This was not my fault!
Two hours later, I had messages from Kathy and Lenora on my desk. “We settled at $29,999.” I’m sorry, but this did not sound like victory, even in Kathy’s voice, even as my brain tried to tell me that this was so much better than we had envisioned a few hours ago. I should be thrilled that this lovely interlude was over and would not appear on my
legal record. “Is this done? Signed, sealed, and delivered?” I asked her.
“Well, at least signed.”
I spoke to Lenora about an hour later.“Do you know that just prior to signing the boyfriend asked for another $2000 to cover the cost of mediation?” They just didn’t get it. Frankly, neither do I.