1 knew she was

troublePressured to settle a

malpractice case,this doctor is still

outraged by the legalsystem that allowed it

to happen.

By Mark Lopatin, MDRHEUMATOLOGIST/WILLOW GROVE PA

I knew Helen Warren wastrouble the first time I met

her in January 1997. She wasa 35-year-old nurse with anotebook full of records and

a sullen demeanor. She d beenreferred to me for pain in her hands,wrists, ankles, and feet, which hadbeen present for about 10 years, buthad worsened over the past severalmonths. Her case was complicatedby symptoms of fibromyalgia, plus apositive review of symptoms and apositive ANA. She was a rheumatol-ogist's nightmare: a demandingType A patient with multiple chronic complaints, and just enoughmedical knowledge to be difficult.

I diagnosed Mrs. Warren withfibromyalgia, and prescribed variousmedications to deal with it. Things

www.memag.com medical ec-onomics/june 4.2004 39

went reasonably well for the nextyear, and we established what I con

sidered a semblance of rapport. Ispent a lot of time at each visit

answering her many questions, andI began to feel that she trusted me.

In March 1998, however, Mrs.

Warren sent me a letter statingthat she'd been diagnosed withautoimmune sensorineural hearing

1 suspected therewould be a suit, but

I figured i was safe.

loss (AISNHL) by Dr. R. an ENT.After starting her on prednisone, 60mg, he had referred her to another

rheumatologist, Dr. H. A week laterDr. H had switched her to methyl-prednisolone, 56 mg. When she discovered that Dr. H wouldn't accepther insurance, however, she decid

ed to return to me.

Mrs, Warren called me on April13, desperate to be seen immediately. I saw her on an emergency basisthat day, and once again shebecame my patient.

Agreeing to tapersteroids rapidly

Mrs. Warren complained of severejoint pains that day. although thatwas nothing new for her. She hadbeen on steroids for only threeweeks by then, but she was worriedthat they were causing side effects.I was also concerned about her

hearing loss and dizziness, and

what would happen if I lowered the

steroids too quickly.

Nonetheless, Mrs. Warren felt

strongly that the steroids were

hurting her, so I began to taperthem, despite the fact that herhearing had improved somewhatsince she'd started them. By May30, I had cut her dosage to 20 mg.On June 2, she showed up foranother emergency visit, complaining of severe knee pain, so I ordered

an MR] of her knee.

I saw Mrs. Warren the fol

lowing week, while the MR!results were still pending.Since her hearing was stable.

I felt it was safe to continue

tapering her steroids fairlyrapidly. 1 decreased her dosage to 16 mg, with instruc

tions to cut it to 12 in two

weeks.

On June 16, I received a

call from Mrs. Warren's

internist informing me thather MRI showed avascular necrosis.

(Although I'd ordered the MRI, theresults went to him because that

was the policy of her managed careplan.) Two days later I learned thatshe was seeing an orthopedic surgeon, complaining of multiple jointpain. He ordered MRIs that re

vealed widespread avascular necrosis involving both knees, bothshoulders, both ankles, and both

hips. She then began to questionwhether her ENT's original diagnosis of AISNHL had been accurate,

and whether she should have been

started on steroids in the first

place.At this point, I suspected there

would be a lawsuit, but I figured Iwas safe. After all, I was the one

Mrs. Warren had called when she

was in trouble. I was the one who

had brought her in on two separateemergency visits on the same dayshe had called. I was the one who

had rapidly tapered her off thesteroids. I was the one who had

ordered the MRI that led to the cor

rect diagnosis.

My chartingwas excellent

Mrs. Warren was down to 2 mg byJuly, and I actually had to increaseher dosage for a short time becauseof adrenal insufficiency. By August,she was off steroids completely,only five months after having started them for an autoimmune condi

tion that threatened her hearing.(By comparison, most patients wdthtemporal arteritis—which also

threatens a sense organ—are usually tapered off steroids over 18 to 24months.)

Over the next year, Mrs. Warrensaw several orthopedic surgeonsand BNTs, and had several jointsurgeries. Her new internist wasmanaging her narcotics (after herold one discharged her from his

practice). Since her fibromyalgiahad become a secondary issue, myrole in her care diminished, al

though I still saw her on a regularbasis.

In March 1999, Mrs. Warren

asked for her records. When I asked

why, she informed me that she was

suing the ENT who'd made the

original diagnosis of AISNHL. andthat her lawyer wanted to learnmore about her fibromyalgia. She

said nothing about suing me.In August, she sent me a nice

note thanking me for helping herout with some forms, and for expediting an earlier appointment withan orthopedic surgeon. Surely thiswasn't the behavior of someone

who was planning to sue me. Infact, she continued to see me until

December 1999. She gave no hint ofany displeasure with my care, androutinely scheduled follow-up

appointments.Then the roof caved in. Dr. H, the

other rheumatologist, called, asking

40 MEDICAL ECONOMICS/JUNE 4.20O4 www.memag.com

me why he'd been named in Mrs.Warren's lawsuit, since he'd onlyseen her once. He informed me that

I'd been named also, even thoughI'd never received a summons.

Later I learned that I was being

sued for not tapering Mrs. Warren'ssteroids quickly enough, and fornot recognizing her avascularnecrosis sooner. I was floored!

I immediately scoured Mrs.Warren's chart, looking for errors Imight have made, but I couldn'tfind any. My attorney reviewed thechart, and told me that my documentation was excellent, that I'd

done nothing wrong, and that raycase was strong. But he explainedthat I was now at the mercy of ourlegal system, and that a jury mightnot see things that way, particularly given Mrs. Warren's extensivemedical problems.

I faced other troubles as well.

Because the defendant ENT prac

ticed in Philadelphia, a city notorious for big jury awards, Mrs.Warren's attorney had the casetransferred there from our subur

ban county, where she'd had mostof her treatment. Worse, I was the

guy with the "deep pockets" in thecase: I had twice as much coverage

as Dr. R, the ENT; and due to a slip

up, Dr. H, the other rheumatologist,had no insurance at all. So if the

award exceeded our combined cov

erage, I could be held liable for anything above that amount.

Making the choiceto settle

My deposition went well, but thetrial judge was pushing for a settlement. Just before the scheduledtrial, my attorney advised me to settle. The jurors weren't likely tounderstand the medical issues

involved, he explained. Instead, theywould probably decide the case onan emotional basis: whether I was

more likable than Mrs. Warren, and

how sorry they felt for her whenthey saw her in her wheelchair.

Given the real potential for a bigplaintiffs verdict, my attorneyargued that the risks of going totrial clearly outweighed the benefits. If 1 went to trial. I might win.But if I lost, I'd risk a ver

dict that might exceed mycoverage. If I settled thecase, however, it would be

over. Besides, as my attor- . ■

ney said, whether I settledor not, the sun would continue to rise each day. ■!

After much soul searching, I decided to settle. (Dr. rR did. too.) The big questionthen was how I could livewith that decision, knowingI'd not only met the standard of care, but even exceeded it.And how could I look my kids in theeye when I've always told them tofight for what's right?

"ItsJust business;nothing personar

My lawyer was right: The sun didcontinue to rise each day. But I wastoo outraged to appreciate it; I feltviolated. No matter how muchvenom I spewed about the faults ofour malpractice system, the poisonstayed within me. Who else wouldsue me now, I wondered? What ifthe next patient has an adverseeffect from a medication I'd prescribed? What if the patient has anunfortunate outcome despite proper care?

My rage at plaintiffs' lawyersand the legal system went onunabated. Ultimately, I neededcounseling to help me get throughit. Only now. nearly two yearslater, am I finally ridding myself ofthe poison.

So what have I learned from myexperience? First of all, I found out

I

that I'm not alone. After the lawsuit, I conducted a survey of morethan 1,000 physicians in my area,and found that 70 percent of themhad been sued at least once formalpractice. Of those who had settled, nearly 90 percent said they didso despite being convinced they'd

was the guywith the "deep

pockets" in the case.

done nothing wrong.Second, I learned that my lawsuit

had nothing to do with me. Or asthe lawyers say, "It's just business;it's nothing personal." Still, it hurts.I've come to realize that talkingabout the experience helps. Discussing it with my colleagues, andhearing their similar stories hasbeen therapeutic.

Looking back, I'm convincedthat my decision to settle wasstrategically sound. But as a result,for the first lime in my life, I'vebecome politically active in thefight for malpractice reform. Thishas also been therapeutic. Although I settled the case, I can stilllook my children in the eye, knowing that I'm setting a good exampleby fighting for what I believe isright.

Having endured this case andsurvived, my innocence is lost. ButI refuse to let the experiencedestroy me. That's my choice, andno lawyer can take it away fromme. That's the most important lesson of all. ■