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					Malpractice lawsuits help only a tiny fraction of injured patients, but medicine has offered no genuine alternative.
                                                                    ANNALS OF MEDICINE

                                            THE MALPRACTICE MESS
                                                             Who pays the price when patients sue doctors?

                                                                      BY ATUL GA ANDE

               I  t was an ordinary Monday at the Mid-
                  dlesex County Superior Court in Cam-
               bridge, Massachusetts. Fifty-two criminal
                                                               sion she allowed him to remove the vis-
                                                               ible tumor that remained on her thigh,
                                                               only a half-inch excision, for a second
                                                                                                             and the pathology report came back with
                                                                                                             a clear diagnosis: a deeply invasive malig-
                                                                                                             nant melanoma. A complete excision,
               cases and a hundred and forty-seven civil       biopsy. He, in turn, agreed to have an-       she was told, should probably have been
               cases were in session. In Courtroom 6A,         other pathologist look at all the tissue      done the first time around. When she
               Daniel Kachoul was on trial for three           and provide a second opinion.                 finally did undergo the more radical pro-
               counts of rape and three counts of assault.         To Reed’s surprise, the new tissue        cedure, the cancer had spread to lymph
               In Courtroom 10B, David Santiago was            specimen was found to contain no sign of      nodes in her groin. She was started on a
               on trial for cocaine trafficking and ille-        cancer. And when the second patholo-          yearlong course of chemotherapy. Five
               gal possession of a deadly weapon. In           gist, Dr. Wallace Clark, an eminent au-       months later, she suffered a seizure. The
               Courtroom 7B, a scheduling confer-              thority on melanoma, examined the first        cancer was now in her brain and her left
               ence was being held for Minihan v. Wal-         specimen he concluded that the initial        lung. She had a course of brain and lung
               linger, a civil claim of motor-vehicle neg-     cancer diagnosis was wrong. “I doubt if       radiation. A few weeks after that, Bar-
               ligence. And next door, in Courtroom            this is melanoma, but I cannot completely     bara Stanley died.
               7A, Dr. Kenneth Reed faced charges of           rule it out,” his report said. Reed and           But not before she had called a law-
               medical malpractice.                            Stanley spoke by phone on August 10,          yer from her hospital bed. She found a
                   Reed was a Harvard-trained derma-           1996, to go over the new findings.             full-page ad in the Yellow Pages for an
               tologist with twenty-one years of expe-             None of this is under dispute; what’s     attorney named Barry Lang, a specialist
               rience, and he had never been sued for          under dispute is what happened after-         in medical-malpractice cases, and he
               malpractice before. That day, he was            ward. According to Barbara Stanley,           visited her at her bedside that very day.
               being questioned about two office vis-            Reed told her that she did not have a         She told him that she wanted to sue
               its and a phone call that had taken place       melanoma after all—the second opinion         Kenneth Reed. Lang took the case. Six
               almost nine years earlier. Barbara Stan-        on the original biopsy “was negative”—        years later, on behalf of Barbara Stan-
               ley, a fifty-eight-year-old woman, had           and that no further surgery was required.     ley’s children, he stood up in a Cam-
               come to see him in the summer of 1996           That’s not how Reed recalled the phone        bridge courtroom and called Reed as his
               about a dark warty nodule a quarter-            conversation. “I indicated to Barbara         first witness.
               inch wide on her left thigh. In the             Stanley . . . that Dr. Wallace Clark felt
               office, under local anesthesia, Reed
               shaved off the top for a biopsy. The pa-
               thologist’s report came back a few days
                                                               that this was a benign lesion called a
                                                               Spitz nevus, and that he could not be a
                                                               hundred per cent sure it was not a mela-
                                                                                                             M      alpractice suits are a feared, often
                                                                                                                    infuriating, and common event in
                                                                                                             a doctor’s life. (I have not faced a bona-
               later, with a near-certain diagnosis of         noma,” he testified. “I also explained to      fide malpractice suit, but I know to ex-
               skin cancer—a malignant melanoma.               her that in Dr. Clark’s opinion this lesion   pect one.) The average doctor in a high-
               At a follow-up appointment, Reed told           had been adequately treated, that follow-     risk practice like surgery or obstetrics is
               Stanley that the growth would have to           up would be necessary, and that Dr. Clark     sued about once every six years. Seventy
               be completely removed. This would re-           did not feel that further surgery was         per cent of the time, the suit is either
               quire taking a two-centimetre mar-              critical. I also explained to Barbara         dropped by the plaintiff or won in court.
               gin—almost an inch—of healthy skin              Stanley that this was in conflict with the     But the cost of defense is high, and when
               beyond the lesion. He was worried               previous pathology report, and that the       doctors lose, the average jury verdict is
               about metastasis, and recommended               most cautious way to approach this            half a million dollars. General surgeons
               that the procedure be done immedi-              would be to allow me to [remove addi-         pay anywhere from thirty thousand to
               ately, but she balked. The excision that        tional skin] for a two-centimetre mar-        two hundred thousand dollars a year in
               he outlined on her leg would have been          gin.” She told him, he said, that she         malpractice-insurance premiums, de-
               three inches across, and she couldn’t           didn’t want more surgery. “At that point,     pending on the litigation climate of the
               believe that a procedure so disfiguring          I reëmphasized to Barbara Stanley that        state they work in; neurosurgeons and
               was necessary. She said that she had a          at least she should come in for regular       obstetricians pay upward of fifty per cent
               friend who had been given a diagnosis           follow-up.” Unhappy with the care she         more.

               of cancer erroneously, and underwent            received, she didn’t return.                      Every doctor, it seems, has a crazy-
               unnecessary surgery. Reed pressed,                  After two years, the growth reap-         lawsuit story. My mother, a pediatrician,
               though, and by the end of their discus-         peared. Stanley went to another doctor,       was once sued after a healthy two-
                                                                                                             THE NEW YORKER, NOVEMBER 14, 2005       63
month-old she had seen for a routine            backed and still in the witness chair as           “That is correct.”
checkup died of sudden infant death syn-        Lang fired questions at him. He was                 Lang began to draw the threads to-
drome a week later. The lawsuit alleged         clearly trying not to get flustered. A          gether. “Exactly what Barbara Stanley
that she should have prevented the death,       friend of mine, a pediatric plastic sur-       needed, according to you, [was] a two-
even though a defining characteristic of         geon who had had a malpractice suit go         centimetre excision, right?”
SIDS is that it occurs without warning.         to trial, told me the instructions that his        “Which is what I instructed Ms. Stan-
One of my colleagues performed lifesav-         lawyer had given him for his court ap-         ley to do . . .”
ing surgery to remove a woman’s pancre-         pearances: Don’t wear anything flashy or            “Yet you did not tell Dr. Hochman”—
atic cancer only to be sued years later be-     expensive. Don’t smile or joke or frown.       Stanley’s internist—“that she needed a
cause she developed a chronic pain in her       Don’t appear angry or uncomfortable,           two-centimetre excision, right?”
arm; the patient blamed it, implausibly,        but don’t appear overconfident or dis-              “That is correct.”
on potassium that she received by I.V.          missive, either. How, then, are you sup-           “But you want this jury to believe you
during recovery from the surgery. I have        posed to look? Reed seemed to have             told Barbara Stanley?”
a crazy-lawsuit story of my own. In 1990,       concluded that the only choice was to              “I want this jury to believe the truth—
while I was in medical school, I was at a       look as blank as possible. He parsed           which is that I told Barbara Stanley she
crowded Cambridge bus stop and an el-           every question for traps, but the strenu-      needed a two-centimetre excision.”
derly woman tripped on my foot and              ous effort to avoid mistakes only made              Lang raised his voice. “You should
broke her shoulder. I gave her my phone         him seem anxious and defensive.                have told Barbara Stanley that . . . isn’t
number, hoping that she would call me               “Wouldn’t you agree,” Lang asked,          that correct?” He all but called Reed a
and let me know how she was doing. She          “that [melanoma] is very curable if it’s ex-   perjurer.
gave the number to a lawyer, and when           cised before it has a chance to spread?” If        “I did tell Barbara Stanley, repeat-
he found out that it was a medical-school       a patient had asked this question, Reed        edly!” Reed protested. “But she refused.”
exchange he tried to sue me for malprac-        would readily have said yes. But, with         As the examination continued, Reed
tice, alleging that I had failed to diagnose    Lang asking, he paused, uncertain.             tried to keep his exasperation in check,
the woman’s broken shoulder when I was              “It’s hypothetical,” Reed said.            and Lang did all he could to discredit
trying to help her. (A marshal served me            Lang was clearly delighted with this       him.
with a subpoena in physiology class.)           sort of answer. Reed’s biggest prob-               “In your entire career, Doctor, how
When it became apparent that I was just         lem, though, was that he hadn’t kept           many articles have you published in the
a first-week medical student and hadn’t          notes on his August 10th phone con-            literature?” Lang asked at another point.
been treating the woman, the court dis-         versation with Barbara Stanley. He                 “Three,” Reed said.
allowed the case. The lawyer then sued          could produce no corroboration for his             Lang lifted his eyebrows, and stood
me for half a million dollars, alleging that    version of events. And, as Lang often          with his mouth agape for two beats. “In
I’d run his client over with a bike. I didn’t   reminded the jury, plaintiffs aren’t re-        twenty years’ time, you’ve published three
even have a bike, but it took a year and a      quired to prove beyond a reasonable            articles?”
half—and fifteen thousand dollars in             doubt that the defendant has commit-               Without documentation, Reed was in
legal fees—to prove it.                         ted malpractice. Lang needed ten of            a hard spot, and Lang’s examination
    My trial had taken place in the same        twelve jurors to think only that it was        made my skin crawl. I could easily pic-
courtroom as Reed’s trial, and a shud-          more likely than not.                          ture myself on the stand being made to
der went through me when I recognized                “You documented a telephone con-          defend any number of cases in which
it. Not all Americans, however, see the         versation that you had with Barbara            things didn’t turn out well and I hadn’t
system the way doctors do, and I had            Stanley on August 31st, isn’t that cor-        got every last thing down on paper. Lang
come in an attempt to understand that           rect?” Lang asked.                             was sixty years old, bald, short, and loud.
gap in perspectives. In the courtroom               “That is correct.”                         Spittle flew in droplets. He paced con-
gallery, I took a seat next to Ernie                “Your assistant documented a discus-       stantly, and rolled his eyes at Reed’s pro-
Browe, the son of Barbara Stanley. He           sion that you had with Barbara Stanley         testations. He showed no deference and
was weary, he told me, after six years of       on August 1st, right?”                         little courtesy. He was almost a stereo-
excruciating delays. He works for a                 “That is correct.”                         type of a malpractice lawyer—except in
chemistry lab in Washington State and               “You documented a telephone call           one respect, and that was the reason I’d
has had to take vacation time and money         with Malden Hospital, correct?”                come to watch this particular trial.
out of his savings to pay for hotels and            “That is correct.”                             Barry Lang used to be a doctor. For
flights—including for two trial dates                “You documented a telephone con-           twenty-three years, he had a successful
that were postponed as soon as he ar-           versation on September 6th, when you           practice as an orthopedic surgeon, with
rived. “I wouldn’t be here unless my            gave Barbara Stanley a prescription for an     particular expertise in pediatric ortho-
mother asked me to, and she did before          infection, correct?”                           pedics. He’d even served as an expert
she died,” he said. “She was angry, angry           “That is correct.”                         witness on behalf of other surgeons.
to have lost all those years because of             “So you made efforts and you had a          Then, in a turnabout, he went to law
Reed.” He was glad that Reed was                habit of documenting patient inter-            school, gave up his medical practice,
finally being called to account.                 actions and telephone conversations,           and embarked on a new career suing
    The dermatologist sat straight-             right?”                                        doctors. Watching him, I wondered,
after all his experience did he under-
stand something that the rest of us didn’t?

I   went to see Lang at his office in down-
    town Boston, on the tenth floor of
1 State Street, in the heart of the finan-
cial district. He welcomed me warmly,
and I found that we spoke more as fellow-
doctors than as potential adversaries. I
asked why he had quit medicine to be-
come a malpractice attorney. Was it for
the money?
     He laughed at the idea. Going into
law “was a money disaster,” he said. Start-
ing out, he had expected at least some re-
wards. “I figured I’d get some cases, and
if they were good the doctors would set-
tle them quickly and get them out of the
way. But no. I was incredibly naïve. No
one ever settles before the actual court
date. It doesn’t matter how strong your
evidence is. They always think they’re in
the right. Things can also change over
time. And, given the choice of paying
now or paying later, which would you
rather do?”
     He entered law practice, he said, be-
cause he thought he’d be good at it, be-                                “This one to your liking, sir?”
cause he thought he could help people,
and because, after twenty-three years in                                           •          •
medicine, he was burning out. “It used to
be ‘Two hip replacements today—yeah!’ ”
he recalled. “Then it became ‘Two hip         bar exam and got his license. He was fifty    trial, and he won half of them. Two
replacements today—ugh.’ ”                    years old. He’d been in orthopedics prac-    weeks before the Reed trial, he won
     When I spoke to his wife, Janet,         tice long enough to have saved a lot of      a four-hundred-thousand-dollar jury
she said that his decision to change ca-      money, and law had begun to seem much        award for a woman whose main bile
reers shocked her. From the day she           more interesting than medicine. In July,     duct was injured during gallbladder sur-
met him, when they were both under-           1997, he handed his practice over to his     gery, forcing her to undergo several re-
graduates at Syracuse University, he’d        startled partners, “and that was the end     constructive operations. (Lang got more
never wanted to be anything other than        of it,” he said.                             than a third of that award. Under Massa-
a doctor. After medical school in Syr-            He figured that the one thing he          chusetts state law, attorneys get no more
acuse and an orthopedics residency at         could offer was his medical expertise,        than forty per cent of the first hundred
Temple University, he had built a busy        and he tried to start his legal practice     and fifty thousand dollars, 33.3 per cent
orthopedics practice in New Bedford,          by defending physicians. But, because        of the next hundred and fifty thousand,
Massachusetts, and had a fulfilling and        he had no experience, the major law          thirty per cent of the next two hundred
varied life. Even when he enrolled in         firms that dealt with malpractice defense     thousand, and twenty-five per cent of
night classes at Southern New England         wouldn’t take him, and the malprac-          anything over half a million.) Lang has
School of Law, a few blocks from his          tice insurers in the state wouldn’t send     at least sixty cases pending. If he had any
office, his wife didn’t think anything of       him cases. So he rented a small office         money troubles, they are over.
it. He was, as she put it, “forever going     and set up shop as a malpractice attor-          Lang said that he gets ten to twelve
to school.” One year, he took English-        ney for patients. He spent several thou-     calls a day, mostly from patients or their
literature classes at a local college. An-    sand dollars a month for ads on television   families, with some referrals from other
other year, he took classes in Judaism.       and in the phone book, dubbing himself       lawyers who don’t do malpractice. He
He took pilot lessons, and before long        “the Law Doctor.” Then the phone calls       turns most of them away. He wants a
was entering airplane aerobatics com-         came. Five years into his new career, his    good case, and a good case has to have
petitions. Law school, too, began as an-      cases finally began going to trial. This      two things, he said. “No. 1, you need the
other pastime—“It was just for kicks,”        is his eighth year as a malpractice attor-   doctor to be negligent. No. 2, you need
he said.                                      ney, and he has won settlements in at        the doctor to have caused damage.”
     After he finished, though, he took the    least thirty cases. Eight others went to     Many of the callers fail on both counts.
                                                                                           THE NEW YORKER, NOVEMBER 14, 2005       65
“I had a call from one guy. He says, ‘I was
waiting in the emergency room for four
hours. People were taken ahead of me,                                          THE OWL’S NIGHT
and I was really sick.’ I say, ‘Well, what
happened as a result of that?’ ‘Nothing,                    Here is a present
but I shouldn’t have to wait for four                       that yesterday doesn’t touch.
hours.’ Well, that’s ridiculous.”                           When we reached
    Some callers have received negligent                    the last of the trees we noticed that we
care but suffered little harm. In a typical                  were no longer able to notice.
scenario, a woman sees her doctor about                     When we looked at the trucks
a lump in her breast and is told not to                     we saw absence heaping up its selected things,
worry about it. Still concerned, she sees                   and pouring out its eternal tent around us.
another doctor, gets a biopsy, and learns
that she has cancer. “So she calls me up,                   Here is a present
and she wants to sue the first doctor,”                      that yesterday doesn’t touch.
Lang said. “Well, the first doctor was                       Silk thread slips between the mulberry trees,
negligent. But what are the damages?”                       letters on the night’s notebook.
She got a timely diagnosis and treat-                       Only moths light our boldness
ment. “The damages are nothing.”                            descending to the hollow of strange words:
    I asked him how great the prospective                   Was this miserable man my father?
damages had to be to make the effort                         Perhaps I’ll consider my situation here. Perhaps
worth his while. “It’s a gut thing,” he said.               I’ll give birth, now, to myself, with myself,
His expenses on a case are typically forty                  and choose for my name vertical letters.
to fifty thousand dollars. So he would al-
most never take, say, a dental case. “Is a                  Here is a present
jury going to give me fifty thousand dol-                    sitting in time’s emptiness staring
lars for the loss of a tooth? The answer is                 at the trace of those who pass on the river’s stalk
no.” The bigger the damages, the better.                    polishing their flutes with air . . . Perhaps speech
As another attorney told me, “I’m look-                     will become transparent, so we’ll see windows in it, open.
ing for a phone number”—damages                             Perhaps time will hurry, with us
worth seven figures.                                         carrying our tomorrow in its luggage.
    Another consideration is how the
plaintiff will come across to jurors.
Someone may have a great case on                lican for the past twenty years, and         view. Lang himself gathers all the re-
paper, but Lang listens with a jury in          had built the addition to their country      cords, arranges them chronologically,
mind. Is this person articulate enough?         home himself—to a medical error. Dur-        and goes through them page by page.
Would he or she seem unreasonable               ing routine abdominal surgery, doctors           There is a legal definition of negli-
or strange to others? Indeed, a number          caused a bowel injury that they failed       gence (“when a doctor has breached his
of malpractice attorneys I spoke to             to notice until, days later, he collapsed    or her duty of care”), but I wanted to
confirmed that the nature of the plain-          and died. The woman was articulate           know his practical definition of the term.
tiff, not just of the injury, was a key fac-     and attractive, but not so good-looking      Lang said that if he finds an error that re-
tor in the awarding of damages. Vernon          as to put off a jury. She wasn’t angry or     sulted in harm, and the doctor could have
Glenn, a highly successful trial attorney       vengeful, but was visibly grieving and in    avoided it, then, as far as he is concerned,
from Charleston, South Carolina, told           need of help. If the family hadn’t spoken    the doctor was negligent.
me, “The ideal client is someone who            English, if the husband had a long his-          To most doctors, this is an alarming
matches the social, political, and cul-         tory of mental illness or alcoholism or      definition. Given the difficulty of many
tural template of where you are.” He            cigarette smoking, if they’d been in-        cases—unclear diagnoses, delicate oper-
told me about a case he had in Lexing-          volved in previous lawsuits or had a         ations—we all have serious “complica-
ton County, South Carolina—a socially           criminal record, Glenn might not have        tions” that might have been avoided. I
conservative, devoutly Christian county         taken the case. As it was, “she was darn     told Lang about a few patients of mine:
that went seventy-two per cent for              close to the perfect client,” he said. The   a man with severe bleeding after laparo-
George W. Bush in the last election and         day before trial, the defendants settled     scopic liver surgery, a patient who was
produces juries unsympathetic to mal-           for $2.4 million.                            left permanently hoarse after thyroid sur-
practice lawyers. But his plaintiff was             Out of sixty callers a week, Barry        gery, a woman whose breast cancer I
a white, Christian female in her thir-          Lang might take the next step with two,      failed to diagnose for months. All were
ties with three young children who had          and start reviewing the medical records      difficult cases. But, in looking back on
lost her husband—a hardworking,                 for hard evidence of negligent care.         them, I also now see ways in which I
thirty-nine-year-old truck mechanic             Many law firms have a nurse or a nurse        could have done better. Would he sue
who loved NASCAR, had voted Repub-              practitioner on staff to do the initial re-   me? If he could show a jury how I might
                                                                                                D.V.T., though, and when the clot dis-
                                                                                                lodged, two days later, it travelled to his
                                                                                                lungs and killed him. Lang’s insurer set-
        Here is a present                                                                       tled the case for about four hundred
        without time.                                                                           thousand dollars.
        He didn’t find anyone here, anyone who remembered                                            “If I had been on the plaintiff’s side,
        how we left the door, a gust of wind. Anyone who remembered                             would I have taken that case against me?”
        when we fell off yesterday. Yesterday                                                    he said to me. “Yes.”
        broke over the floor, shrapnel gathered together                                             Being sued was “devastating,” Lang re-
        by others, like mirrors for their image, after us.                                      called. “It’s an awful feeling. No physician
                                                                                                purposely harms his patient.” Yet he in-
        Here is a present                                                                       sists that, even at the time, he was philo-
        without place.                                                                          sophical about the cases. “Being sued, al-
        Perhaps I’ll consider my situation, and scream at                                       though it sort of sucks the bottom out of
        the owl’s night: Was that miserable man                                                 you, you have to understand that it’s also
        my father, who makes me carry the burden of his history?                                the cost of doing business. I mean, every-
        Perhaps I’ll change my name, and choose                                                 body at some time in his life is negligent,
        my mother’s expressions and her customs as they ought                                   whether he’s a physician, an auto me-
        to be: This way she’ll be able to joke with me                                          chanic, or an accountant. Negligence oc-
        whenever salt touches my blood. This way she’ll be able to                              curs, and that’s why you have insurance. If
        take care of me whenever a nightingale bites my mouth.                                  you leave the oven on at home and your
                                                                                                house catches fire, you’re negligent. It
        Here is a present                                                                       doesn’t mean you’re a criminal.” In his
        fleeting.                                                                                view, the public has a reasonable expecta-
        Here strangers hang their guns on                                                       tion: if a physician causes someone serious
        the branches of an olive tree, prepare dinner                                           harm from substandard care or an out-
        quickly, from tin cans, and leave                                                       right mistake, he or she should be held
        quickly, for their trucks.                                                              accountable for the consequences.
                                                                                                    The cases that Lang faced as a doc-
                                                            ––Mahmoud Darwish                   tor, however, seemed to me to epito-
                        (Translated, from the Arabic, by Jeffrey Sacks.)                         mize the malpractice debate. Two of the
                                                                                                three lawsuits against him appeared un-
                                                                                                founded, and, whatever Lang says now,
have avoided harm, and if the damages            worse and left him unable to work. Lang        the cost in money and confidence to our
were substantial, he said, “I would sue          said that he’d warned the patient that this    system is nothing to dismiss. Yet one
you in a flash.” But what if I have a good        was a high-risk surgery. When he got           of them concerned a genuine error that
record among surgeons, with generally            in, he found the key nerves encased in a       cost a man his life. In such cases, what
excellent outcomes and conscientious             thick scar. Freeing them was exceedingly       do doctors believe should be done for pa-
care? That wouldn’t matter, he said. The         difficult—“like trying to peel Scotch tape       tients and their families?
only thing that matters is what I did in         off wallpaper,” he said—and some nerve
the case in question.
    Lang insists that he is not engaged in
a crusade against doctors. He faced three
                                                 fibres were unavoidably pulled off. But
                                                 the insurer wasn’t certain that it would
                                                 prevail at trial, and settled for three hun-
                                                                                                B    ill Franklin is a physician I know
                                                                                                     who has practiced at Massachusetts
                                                                                                General Hospital, in Boston, for more
malpractice lawsuits himself when he was         dred thousand dollars. Both cases seemed       than forty years. He is an expert in the
a surgeon. One involved an arthroscopy           unmerited, and Lang found them as ex-          treatment of severe, life-threatening al-
that he performed on a young woman               asperating as any other doctor would.          lergies. He is also a father. Years ago, his
with torn cartilage in her knee from a               The third case, however, was the re-       son Peter, who was then a second-year
sports injury. Several years later, he said,     sult of a clear error, and although it took    student at Boston University School of
she sued because she developed arthritis         place two decades ago, it still bothers        Medicine, called to say that he was feel-
in the knee—a known, often unavoidable           him. “I could have done more,” he told         ing sick. He had sweats, and a cough,
outcome. Against his wishes, the insurer         me. The patient was a man in his sixties       and felt exhausted. Bill had him come
settled with the patient for what Lang           whom Lang had scheduled for a knee             to his office and looked him over. He
called “nuisance money”—five thousand             replacement. A few days before the             didn’t find anything, so he had his son
dollars or so—because it was cheaper than        surgery, the man came to his office              get a chest X-ray. Later that day, the ra-
fighting the suit in court.                       complaining of pain in his calf. Lang          diologist called. “We’ve got big trou-
    In another case, a manual laborer with       considered the possibility of a deep-vein      ble,” he told Bill. The X-rays showed
a wrist injury that caused numbness              thrombosis—a blood clot in the leg—but         an enormous tumor filling Peter’s chest,
in three fingers sued because Lang’s              dismissed it as unlikely and ordered no        compressing his lungs from the middle
attempted repair made the numbness               further testing. The patient did have a        and pushing outward. It was among the
                                                                                                THE NEW YORKER, NOVEMBER 14, 2005        67
                                                                                              what Bill Franklin wanted to do. The doc-
                                                                                              tors involved in his son’s case were col-
                                                                                              leagues and friends, and he was no fan of
                                                                                              the malpractice system. He had himself
                                                                                              been sued. He’d had a longtime patient
                                                                                              with severe asthma whom he had put on
                                                                                              steroids to ease her breathing during a bad
                                                                                              spell. Her asthma had improved, but the
                                                                                              high doses resulted in a prolonged demen-
                                                                                              tia, and she had to be hospitalized. The
                                                                                              lawsuit alleged that Franklin had been neg-
                                                                                              ligent in putting her on steroids, given the
                                                                                              risks of the medication, and that he was
                                                                                              therefore financially responsible for the
                                                                                              aftermath. Franklin had been outraged.
                                                                                              She’d had a life-threatening problem, and
                                                                                              he’d given her the best care he could.
                                                                                                  Now, as an M.G.H. staff member, he
                                                                                              decided to see the hospital director. He
                                                                                              asked for a small investigation into how
                                                                                              the mistake had been made and how it
                                                                                              might be prevented in the future; he also
                  “You just come home and neglect her at night.                               wanted to secure financial support for
                   I’m the one who has to neglect her all day.”                               Peter’s family. The director told him that
                                                                                              he couldn’t talk to him about the matter.
                                       •          •                                           He should get a lawyer, he said. Was
                                                                                              there no other way, Franklin wanted to
                                                                                              know. There wasn’t.
largest the radiologist had encountered.       eryone’s eyes. Thinking back on Peter’s            Here’s where we in medicine have
   After he had pulled himself together,       care over the years, he remembered that        failed. When something bad happens in
Bill Franklin called Peter at home to          four years earlier Peter’s wisdom teeth        the course of care and a patient and fam-
give him and his young wife the fright-        had been removed. The surgery had been         ily want to know whether it was unavoid-
ening news. They had two children              performed under general anesthesia,            able or due to a terrible mistake, where
and a small house, with a kitchen that         with an overnight stay at M.G.H., and          are they to turn? Most people turn first to
they were in the midst of renovating.          a chest X-ray would have been taken.           the doctors involved. But what if they
Their lives came to a halt. Peter was ad-      Franklin had one of the radiologists pull      aren’t very responsive, or their expla-
mitted to the hospital and a biopsy            the old X-ray and take a second look.          nations don’t sound quite right? People
showed that he had Hodgkin’s lym-              The mass was there, the radiologist told       often call an attorney just to get help in
phoma. He was put on high-dose radi-           him. What’s more, the original radiol-         finding out what happened.
ation therapy, with a beam widened to          ogist who had reviewed Peter’s chest               “Most people aren’t sure what they’re
encompass his chest and neck. Still,           X-ray had seen it. “Further evaluation of      coming to me for,” Vernon Glenn, the
Peter was determined to return to              this is recommended,” the four-year-old        South Carolina trial attorney, told me.
school. He scheduled his radiation ses-        report said. But the Franklins had never       “The tipoff is often from nurses saying,
sions around his coursework, even after        been told. The oral surgeon and the sur-       ‘This was just wrong. This should never
they paralyzed his left diaphragm and          gical resident had both written in Peter’s     have happened.’ ” The families ask him
damaged his left lung, leaving him un-         chart that the X-ray was normal.               to have a look at the medical files. If the
able to breathe normally.                          If the tumor had been treated then,        loss or injury is serious, he has an expert
   The tumor proved too large and ex-          Peter would almost certainly have been         review the files. “More often than you
tensive for a radiation cure. Portions of it   cured with radiation alone, and with           would think, we’ll say, ‘Here’s what hap-
had continued to grow, and it had spread       considerably less-toxic doses. Now it          pened. We don’t think it’s a case.’ And
to two lymph nodes in Peter’s lower ab-        seemed unlikely that he’d finish medical        they’ll say, ‘At least we know what hap-
domen. The doctors told his father that        school, if he survived at all. Bill Franklin   pened now.’ ”
it was one of the worst cases they had         was beside himself. How could this have            Malpractice attorneys are hardly the
ever seen. Peter was going to need several     happened—to one of M.G.H.’s own, no            most impartial assessors of care, but
months of chemotherapy. It would make          less? How would Peter’s wife and chil-         medicine has offered no genuine alter-
him sick and leave him infertile, but, they    dren be supported?                             native—because physicians are generally
said, it should work.                              Thousands of people in similar circum-     unwilling to take financial responsibility
   Bill Franklin couldn’t understand           stances file malpractice lawsuits in order to   for the consequences of their mistakes.
how the tumor had got so large under ev-       get answers to such questions. That’s not      Indeed, the one argument that has per-
suaded many doctors to be more forth-             Sacco and Vanzetti had been convicted of     he was rejected by his top-choice resi-
right about mistakes is that doing so             murder. “I don’t remember much about         dency programs. A dean at Boston Uni-
might make patients less likely to sue.           the trial—I’ve blocked it out,” Bev Frank-   versity called the chairman of radiology at
    What would most doctors do if some-           lin, Peter’s mother, says. “But I remem-     one of the programs to find out why.
one close to them was hurt by a medical           ber the room. And I remember Michael         “This guy’s a maverick! He’s suing doc-
error? In a recent national survey, physi-        Mone saying those words we’d been wait-      tors!” was the reply. The dean told the
cians and non-physicians were given the           ing so long to hear: ‘Ladies and gentle-     chairman Peter’s story and then asked,
following case: A surgeon orders an anti-         men, this young man had a time bomb          “If this was your son, what would you
biotic for a sixty-seven-year-old man un-         ticking in his chest. And for four years—    do?” Peter got in after that. He chose Bos-
dergoing surgery, failing to notice that the      four years—the doctors did nothing.’ ”       ton University’s program and, when he
patient’s chart says that he is allergic to the   The trial took four days. The jury found     finished, he was asked to join the staff
drug. The mistake is not caught until after       in favor of Peter, and awarded him six       there. Soon, he was made a division chief.
the antibiotic is given, and, despite every       hundred thousand dollars.                    He remarried and is now a fifty-six-year-
effort, the patient dies as a result. What             Bill Franklin says that he never expe-   old expert on orthopedic imaging, with a
should be done? Unlike fifty per cent of           rienced any negative repercussions at the    brush mustache, a graying thatch of hair,
the public, almost none of the physicians         hospital. His colleagues seemed to un-       and chronic lung and liver troubles from
wanted the surgeon to lose his license.           derstand, and Peter’s doctors did their      his chemotherapy. Four years ago, he
Medical care requires that a thousand             very best for him. Peter continued to at-    started a teleradiology group that now in-
critical steps go right every day, and none       tend medical school. At the end of that      terprets scans for a hundred and fifty cen-
of us would have a license if we were pun-        long year, after six full cycles of chemo-   ters across the country. He is also a spe-
ished every time we faltered. At the same         therapy, the lymph nodes in his chest        cialist for professional sports teams, in-
time, fifty-five per cent of the physicians         continued to harbor residual cancer. He      cluding the San Diego Chargers and the
said that they would sue the surgeon for          was given a new chemotherapy regimen,        Chicago Bears.
malpractice.                                      which so weakened his immune system             He says that his ordeal has made him
    That’s what Bill Franklin, with some          that he almost died of a viral lung infec-   exceedingly careful in his work. He has set
trepidation, decided to do. Lawyer friends        tion. He was in the hospital for weeks,      up a review committee to find and analyze
warned him that he might have to leave            and was finally forced to take a leave        errors. Nonetheless, the single biggest
his position on staff if things didn’t go          from school. The virus left him short of     budget item for his group is malpractice
well. He loved the hospital and his prac-         breath whenever he did anything more         insurance. As it happens, the most com-
tice; Peter’s oral surgeon was a friend. But      strenuous than climb half a flight of         mon kind of malpractice case in the coun-
his son had been harmed, and he felt that         stairs, and with burning nerve pain in his   try involves allegations that doctors have
Peter and his young family were entitled          feet. His marriage slowly disintegrated; a   made the kind of error that Peter once
to compensation for all that they had lost        disaster can either draw people together     faced—a missed or delayed diagnosis. I
and suffered. Peter himself was against            or pull them apart, and this one pulled      asked him how he felt about being re-
suing. He was afraid that a lawsuit might         Peter and his wife apart.                    sponsible for a lawsuit that had made it
so antagonize his doctors that they would             Yet Peter survived. He eventually        easier to sue for such claims. He winced
not treat him properly. But he was per-           completed medical school, and decided to     and paused to consider his answer.
suaded to go along with it.                       go into radiology. To everyone’s surprise,      “I think the malpractice system has run
    At first, the Franklins were told that
no lawyer would take the case. The error
had been made four years earlier, and this
put it beyond the state’s three-year statute
of limitations. As in most states at the
time, one could not file a civil claim for an
action long in the past—never mind that
Peter didn’t learn about the error until it
was too late. Then they found a young
Boston trial attorney named Michael
Mone, who took the case all the way to
the Massachusetts Supreme Court and, in
1980, won a change in the law. Franklin v.
Massachusetts General Hospital et al.
ruled that such time limits must start with
the discovery of harm, and the precedent
stands today. The change allowed the case
to proceed.
    The trial was held in 1983, in the town
of Dedham, in the same courthouse
where, six decades earlier, the anarchists                         “Thank goodness he was wearing a condom.”
amok,” he finally said. “I don’t think that     stand these instances. Are doctors vil-         dren, but every year one in ten thousand
my little experience has anything to do        lains if we make mistakes? No, because          or so is harmed by side effects. Between
with it—the system is just so rampant          then we all are. But we are tainted by the      1980 and 1986, personal-injury lawyers
with problems. But, if you’re damaged,         harm we cause.                                  filed damage claims valued at more than
you’re damaged. If we screw up, I think            I watch a lot of baseball, and I often      $3.5 billion against doctors and manu-
we should eat it.” Wasn’t he contradicting     find myself thinking about the third             facturers. When they began to win, vac-
himself ? No, he said; the system was the      baseman’s job. In a season, a third base-       cine prices jumped and some manufac-
contradiction. It helps few of the people      man will have about as many chances to          turers got out of the business. Vaccine
who deserve compensation. His case was         throw a man out as I will to operate on         stockpiles dwindled. Shortages ap-
unusual, and even that involved a seven-       people. The very best (players like Mike        peared. So Congress stepped in. Vac-
year struggle before all the appeals and       Lowell, Hank Blalock, and Bill Mueller)         cines now carry a seventy-five-cent sur-
challenges were dismissed. At the same         do this perfectly almost every time. But        charge (about fifteen per cent of total
time, too many undeserving patients sue,       two per cent of the time even they drop         costs), which goes into a fund for chil-
imposing enormous expense and misery.          the ball or throw it over the first base-        dren who are injured by them. The pro-
The system, as he sees it, is fundamentally    man’s head. No one playing a full season        gram does not waste effort trying to sort
perverse.                                      fails to make stupid errors. When he            those who are injured through neg-
                                               does, the fans hoot and jeer. If the play-      ligence from those who are injured

T     he paradox at the heart of medical
      care is that it works so well, and yet
never well enough. It routinely gives peo-
                                               er’s error costs the game, the hooting will
                                               turn to yelling. Imagine, though, that if
                                               every time Bill Mueller threw and missed
                                                                                               through bad luck. An expert panel has
                                                                                               enumerated the known injuries from
                                                                                               vaccines, and, if you have one, the fund
ple years of health that they otherwise        it cost or damaged the life of someone          provides compensation for medical and
wouldn’t have had. Death rates from            you cared about. One error leaves an old        other expenses. If you’re not satisfied,
heart disease have fallen by almost two-       man with a tracheostomy; another puts a         you can sue in court. But few have.
thirds since the nineteen-fifties. The sur-     young woman in a wheelchair; another            Since 1988, the program has paid out a
vival rate among cancer patients is now        leaves a child brain-damaged for the rest       total of $1.5 billion to injured patients.
almost seventy per cent. A century ago,        of her days. His teammates would still          Because these costs are predictable and
ten in a hundred newborns and one in a         commiserate, but the rest of us? Some           evenly distributed, vaccine manufactur-
hundred mothers died; today, just seven        will want to rush the field howling for          ers have not only returned to the market
in a thousand newborns and fewer than          Mueller’s blood. Others will see all the        but produced new vaccines, including
one in ten thousand mothers do. But this       saves he’s made and forgive him his fail-       ones against hepatitis and chicken pox.
has required drugs and machines and            ures. Nobody, though, would see him in          The program also makes the data on
operations and, most of all, decisions         quite the same way again. And nobody            manufacturers public—whereas legal
that can as easily damage people as save       would be happy to have the game go on           settlements in medical cases are virtually
them. It’s precisely because of our enor-      as if nothing had happened. We’d want           always sealed from view. The system has
mous success that people are bound to          him to show sorrow, to take responsibility.     flaws, but it has helped far more people
wonder what went wrong when we fail.           We’d want the people he injured to be           than the courts would have.
    As a surgeon, I will per-                               helped in a meaningful way.            The central problem with any system
form about four hundred op-                                     This is our situation in       remotely as fair and efficient as this one
erations in the next year—ev-                               medicine, and litigation has       is that, applied more broadly, it would
erything from emergency                                     proved to be a singularly un-      be overwhelmed with cases. Even if
repair of strangulated groin                                satisfactory solution. It is ex-   each doctor had just one injured and de-
hernias to removal of thyroid                               pensive, drawn-out, and pain-      serving patient a year (a highly optimis-
cancers. For about two per                                  fully adversarial. It also helps   tic assumption), complete compensa-
cent of patients—for eight,                                 very few people. Ninety-eight      tion would exceed the cost of providing
maybe ten, of them—things                                   per cent of families that are      universal health coverage in America.
will not go well. They will de-                             hurt by medical errors don’t       To be practical, the system would have
velop life-threatening bleed-                               sue. They are unable to find        to have firm and perhaps arbitrary-
ing. Or I will damage a critical                            lawyers who think they would       seeming limits on eligibility as well as on
nerve. Or I will make a wrong                               make good plaintiffs, or they       compensation. New Zealand has settled
diagnosis. Whatever Hippocrates may            are simply too daunted. Of those who do         for a system like this. It has offered
have said, sometimes we do harm. Stud-         sue, most will lose. In the end, fewer than     compensation for medical injuries that
ies of serious complications find that usu-     one in a hundred deserving families re-         are rare (occurring in less than one per
ally about half are unavoidable; and, in       ceive any money. The rest get nothing: no       cent of cases) and severe (resulting in
such cases, I might be able to find some        help, not even an apology.                      death or prolonged disability). As with
small solace in knowing this. But in the                                                       America’s vaccine fund, there is now no
other half I will simply have done some-
thing wrong, and my mistake may change
someone’s life forever. Society is still
                                               T   here is an alternative approach,
                                                   which was developed for people
                                               who have been injured by vaccines. Vac-
                                                                                               attempt to sort the victims of error from
                                                                                               the victims of bad luck. For those who
                                                                                               qualify, the program pays for lost in-
searching for an adequate way to under-        cines protect tens of millions of chil-         come, medical needs, and, if there’s a
permanent disability, an additional
lump sum for the suffering endured.
Payouts are made within nine months
of filing. There are no mammoth, ran-
dom windfalls, as there are in our sys-
tem, but the public sees the amounts as
reasonable, and there’s no clamor to
send these cases back to the courts.
    The one defense of our malpractice
system is that it has civilized the pas-
sions that arise when a doctor has done
a devastating wrong. It may not be a
rational system, but it does give peo-
ple with the most heartbreaking injuries
a means to fight. Every once in a while,
it extracts enough money from a doctor
to provide not just compensation but
the satisfaction of a resounding pun-
ishment, fair or not. And although
it does nothing for most plaintiffs, peo-
ple whose loved ones have suffered
complications do not then riot in hos-
pital hallways, as clans have done in
some countries.
    We are in the midst of a flurry of
efforts to “reform” our malpractice sys-
tem. More than half of the states have
enacted limits on the amount of money
that juries can award someone who has
been injured by a doctor, and Congress
is considering a federal cap of two hun-
dred and fifty thousand dollars on non-
economic damage awards. But none of
this will make the system fairer or less
frustrating for either doctors or patients.
                                                                                   •          •
It simply puts an arbitrary limit on pay-
ments so that doctors’ insurance premi-       lives of fourteen jurors for almost two      ley the option of a more radical skin
ums might, at least temporarily, be more      weeks, Barry Lang stood behind a lec-        excision that might have saved her life.
affordable.                                    tern to make his closing argument on be-         Judge Kenneth Fishman then gave
    Whether a cap is enacted or not, I will   half of the estate of Barbara Stanley.       the jury its instructions. Stanley’s son,
pay at least half a million dollars in pre-   “Dr. Reed is not a criminal,” he told the    Ernie Browe, sat in the front row of the
miums in the next ten years. I would          jury. “But he was negligent, and his neg-    gallery on one side, and Kenneth Reed
much rather see that money placed in an       ligence was a key factor in causing Bar-     sat a row back on the other. Both looked
insurance fund for my patients who suffer      bara Stanley’s death.”                       drained. When the judge finished, it was
complications from my care, even if the           It was not an open-and-shut case.        late in the afternoon, and everyone was
fund cannot be as generous as we’d like it    Even in Lang’s account, Reed was faced       dismissed for the day.
to be. There’s no real chance of this hap-    with a difficult medical problem: pa-              The next morning, the jury began
pening, though. Instead, we’re forced to      thologists who contradicted each other       its deliberations. Just before noon, the
make do with what we have.                    about whether the first biopsy showed         court officer announced that a verdict
                                              skin cancer; a second biopsy that failed     had been reached: Dr. Kenneth Reed

I  n Courtroom 7A of the Edward J.
   Sullivan Courthouse in Cambridge,
after seven years of litigation; more than
                                              to settle the issue; a distrusting patient
                                              who was angry with him, first for doing
                                              too much and then for doing too lit-
                                                                                           was not negligent in his care of Barbara
                                                                                           Stanley. Stanley’s son slumped in his
                                                                                           seat, looked down at the floor, and did
twenty thousand dollars in payments to        tle. But, for the first time during the       not move for a long while. Barry Lang
medical experts; the procurement of           trial, Lang stopped his constant pacing.     promptly stood up to put away his pa-
bailiffs, court reporters, a judge, and two-   He spoke slowly and plainly. The story       pers. “It was a tough case,” he said. Reed
hundred-and-fifty-dollar-an-hour de-           he told seemed lucid and coherent.           was not there to hear the verdict. He
fense attorneys; time on an overloaded        In that fateful telephone conversation,      had been seeing patients in his office
court schedule; and the commandeered          he argued, Reed failed to offer Stan-         all morning. 
                                                                                           THE NEW YORKER, NOVEMBER 14, 2005       71