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Medical Malpractice Articles by Tommy Malone,  ABPLA Board Certified Medical Malpractice Lawyer

CHANGES IN MEDICINE – AN OVERVIEW OF HANDLING MEDICAL NEGLIGENCE CASES FOR THE PAST FORTY YEARS

  By: Thomas William Malone
MALONE LAW OFFICE
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Atlanta, Georgia  30346
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www.malonelaw.com 

Introduction 

            Upon graduation from law school in 1966, I returned home to Albany, Georgia, to enter the practice of law.  Times were very different then.  Some doctors still made house calls and most patients paid their own medical bills.  There was neither Medicaid nor Medicare.  Employment based health care plans were not generally offered.  Albany was a southwest Georgia town of less than 100,000. Personal injury claims were rarely tried and no one conducted voir dire examination.  There had not yet been a million dollar verdict in the entire state and record verdicts in most communities were ten or twenty thousand dollars. Lawyers representing claimants generally negotiated the best settlement possible with the insurance defense counsel or claims representative and avoided the uncertainty of litigation.  So-called “courtroom” lawyers were to be found in the criminal defense bar. 

            My father had served as prosecuting attorney in the local court for over 25 years when I entered the practice.  His practice included the examination of titles and real estate transactions.  To say my father discouraged me from devoting my time to the representation of injured people would be putting it mildly.  He sternly admonished me that I could never expect to earn a living practicing “personal injury law”.  Never being one to do what was expected, I thoroughly enjoyed tilting the windmills in an attempt to hold the rich and powerful accountable for the injuries inflicted as the result of their carelessness.  Much has changed since those early days when it was virtually impossible to obtain a verdict in favor of an injured patient.  The purpose of this paper is to review some of the factors which have brought about a dramatic shift in the viability of the professional negligence claim.  More than any other factor, the mores or attitudes of society have dramatically changed.  Prejudice has always been at the heart of any jury verdict and the pendulum has simply swung in the direction of patients’ rights.  The medical negligence case remains one of the most difficult, but it has become possible to obtain just verdicts in favor of the victims of medical negligence in almost every venue in our state.  However, proper case selection and a full appreciation of pertinent prejudices are necessary for success. 

Historical Background 

            Many may think criticism of the medical profession is something created by the modern trial lawyer.  Not so!  Historically, society has had serious concerns about the medical profession as evidenced by a statement made in 1544, in the acts of Henry VIII: 

“. . . for although . . . the . . . craft of surgeons have small cunning, yet they will take great sums of money and do little therefore and by reason thereof they do oftentimes impair and harm their patients rather than do them good.” 

        Even though members of the medical community have not always been appreciated throughout history, it was not until the late 1840s that medical malpractice suits began to emerge in the United States.  Several historians have offered reasoning as to why Americans began to sue their physicians.  Those suggestions include: increased competition in the medical field, advances in medical science and the decline in divine providence beliefs.[1]  After this initial round of malpractice suits, the number of suits increased slightly in the 1920s and 1930s. I believe medical negligence suits in the early days were by and large confined to the large metropolitan areas of our country.  It was not until the 1960s that the entire legal climate changed when the Civil Rights Movement not only paved the way for Constitutional guarantees but also consumer consciousness.  Consumers gained a voice in governmental decisions and consumer rights were extended into several areas of law, most importantly the right to hold those accountable for the injuries they caused.  Medical complaints and issues formally regulated to ethics became important tort and civil right issues.  This new demand for justice was the impetus for rate of medical negligence cases to triple between 1975-1985.[2] 

In my experience, it was well into the 70’s and 80’s before medical negligence claims became anything other than an oddity in the State of Georgia particularly outside metropolitan Atlanta. It was quite unusual for any case to proceed to trial in those days.  And if the case did, jurors were simply not prepared to hold a caring doctor responsible for any consequences, unintentional or even intentional.  The following cases represent the difficulty of trying medical malpractice cases 40 years ago and illustrate how the changes in the healthcare industry have allowed injured parties to receive a just and adequate award today. 

Bitterman v. Johnson[3] 

            My first medical negligence case, Bitterman v. Johnson[4], is a stark example of the immunity enjoyed by the medical profession in rural Georgia in the late 1960’s.  Carol Bitterman was a beautiful 15-year-old high school student who was administered azulfidine, a sulfur drug, by her physician, Dr. Tom Johnson.  Dr. Johnson was a board certified internal medicine specialist who sang in the choir at the first Methodist church and was a member of the most respected medical group in town.  He had documented Carol’s allergy to sulfur in his office records.  Carol’s non-specific colitis lead to the administration of azulfidine by her doctor who explained that azulfidine was a new kind of sulfur and that she and her mother should not worry about her past documented allergies to sulfur drugs.  Fourteen days into the regimen, she developed blisters which became huge hanging water blisters that ultimately burst leaving her with virtually no skin on her body, no hair, no fingernails, toenails, eyelashes.  Nurses described her as appearing as if she was a peeled tomato.  Her hospital bed sheets were covered in corn starch to prevent her skin from sticking.  Carol developed an ascending paralysis, which stopped at the level of her umbilicus leaving her unable to move or feel the lower part of her body.  After a six-day trial, the jury returned a defense verdict.  One of the jurors told me that we would have won had the case been tried anywhere other than Albany.  The preachers of the first Methodist, Baptist and Presbyterian churches came to court and patted the good doctor on the shoulder in the presence of the jury as did almost every physician in town.  If they did not testify for the defense, they showed up to give support.  I almost gave up the practice of law after that devastating loss.  Was there any justice to be found in the courtroom? 

            Recognizing prejudice dictated the outcome of that trial, I decided to put prejudice to work for Carol.  The closeness of the community to the doctor and the lack of alternative services lost the case.  Would jurors be more likely to hold an “outsider” liable for the damage?  I was determined to find out.  I associated the famous Melvin Belli of San Francisco in the case we ultimately tried together against Pharmacia Laboratories[5], the manufacturer of azulfidine.  The prescribing information was so deficient in warning of the hazards of sulfa drugs that I was unable to use it in my cross examination of the crowd of local doctors who testified sulfur was a harmless drug.  One local doctor even testified that he had prescribe enough sulfur to fill up the courtroom and had never seen or heard of a bad reaction to sulfur. 

I believed a world famous lawyer from San Francisco, a local paralyzed girl and a New Jersey drug company in our hometown would turn the tables of prejudice in our favor.  My plan worked!  The jury felt free to hold the pharmaceutical company responsible because in their minds “big business” did not care about them, “big business” had harmed one of their own, and “big business” should pay.  This case foreshadows the juries’ attitude about managed healthcare today.  

After that trial, I proceeded to devote most of my time to injury cases with a substantial focus on medical negligence.  In those early days, my losses throughout southwest Georgia were legion.  Those losses included such cases as one involving a penny in the throat of an infant with a history of swallowing foreign objects.  The penny went undiscovered by her pediatrician who saw her for over a year after she was brought to him.  Another case was based upon a baby dying due to blood loss in the mother who was kept bleeding in a rural hospital where no blood was available. A wife and mother received over 25 electric shock treatments in less than six days and over six on the last day when she went into a seizure from which she never returned.  I even lost a case where a gentleman suffered severe burns due to a plaster of Paris cast.  In that case, the manufacturer and the physician applying the plaster of Paris were both excused by a rural jury with no recovery for the plaintiff.  The burns had to have been the result of defective plaster or improper application.  There was no other explanation.  In these cases I was unable to sway the prejudices of the jury.  It was clear that even though the jurors were charged that they were not responsible for the consequences of their verdict, the consequences were obviously considered.  Back then, physicians in rural Georgia enjoyed what could best be described as absolute immunity. 

            My criteria for accepting medical negligence cases was rigid and I considered these to be clear liability cases.  Each time I had proven my case, walking the jury through duty, negligence, causation and damages.  Those medical negligence cases were defended on the basis of no carelessness as well as no causation.  The “so what” defense worked well in those days in the face of damages that were always clear and catastrophic. 

In 1979, I was to learn a great lesson.  Medical negligence cases are easier to win in big cities. I did not need to bring in a famous attorney or a big business.  If you prove a doctor is a butcher in a metropolitan area, the jurors are quite happy to run him or her out of town.  In a small town he may be the only surgeon there.  The case of Jurczyik v. Musarra[6] was tried in the United States District Court in Atlanta for a lady who had undergone reconstructive surgery following a mastectomy.  The reconstructive surgery was destined to failure due to compromised blood flow to the area that had been radiated.  The surprisingly successful result convinced me that there was something different about medical negligence cases tried in the city as compared to those tried in the country.  It turned out the big city was all too familiar with results of medical negligence and problems with healthcare delivery. 

All these experiences spurred my move from Albany to Atlanta.  I wanted to go where I could win cases.  In rural cases where the evidence imposed an obligation on jurors to award enormous damages, I believe that since jurors may need the defendant doctor’s services and they liked their town doctors, these rural juries would return verdicts in favor of the defendant. But now, how the times have changed.  Now a plaintiff is able to recover large damages in rural and metropolitan areas.  For either community, the pendulum has swung toward plaintiff’s rights.  One of the major reasons for the jurors now holding a doctor or HMO responsible for unintentional consequences is that healthcare has become a big business and the profession has eroded.  While being a doctor was a noble profession, most doctors did not make a lot of money.  There was a time when you could pay your doctor for his services in trade.  Thirty years ago, doctors served their community with a personal touch, dispensing your medication and answering your questions.  There was no middleman.  Now consumers are forced to deal with profit motivated managed care plans that in the end have ultimate power over medical decisions.   The difficulty in getting past the “gate-keepers” to specialists, limitations on therapy, and the inability to simply change to a doctor of choice is now universally understood and resented by most people.  Juries in both small and large towns recognize there is no longer a closeness of the community to the professional and are incensed when they find profit motivation is improperly and detrimentally impacting on healthcare decision-making. 

The juror of today insists upon the health care provider affording the patient at least a minimal standard of care.  When a disastrous result occurs in the presence of carelessness, no longer is the “so what” defense a safe haven for the errant health care provider.  As the following cases reveal, a catastrophic result which occurs after a substantial departure from what the jurors expect to be the standard of care can produce a just recovery for the patient even if proof of causation is daunting. 

Jones v. Bashuk[7] 

Mr. Jones was admitted with signs of a stroke on Saturday and because of the failure to diagnose until Tuesday he suffered a catastrophic debilitating stroke.  Mr. Jones began experiencing difficulty swallowing, as well as unsteadiness and intermittent double vision.  On Saturday morning, his wife drove him to the emergency room.  The emergency room doctor initially suspected a stroke and requested a consult with a neurologist because of the clear presentation of neurological symptoms.  When the neurologist arrived, he saw Mr. Jones, interpreted a CAT scan without contrast as being normal.  The neurologist admitted Mr. Jones to the hospital with an order for an MRI of his head “today or in A.M.”  Although the CAT scan was normal and it revealed no signs of a hemorrhagic or bleeding stroke, an MRI would be needed to reveal whether Mr. Jones was suffering from an occlusive or blockage stroke.  The hospital had the facilities to carry out the neurologist’s orders for an MRI; however, no MRI technicians were at the hospital.  Due to holiday weekend and hospital policy of not providing for an on-call MRI technician, a technician would not return to the hospital until Tuesday.  The neurologist was not aware of the policy.  Mr. Jones’ conditioned worsened.  He developed right-sided facial weakness, transient numbness of his right hand, moderate unsteadiness, and brief numbness on his right side.  Mr. Jones did not receive the MRI until Monday when he was taken to another hospital.  The film that was taken showed a recognizable evidence of a stroke in the basilar area of the Mr. Jones’ brain.  When Mr. Jones was returned to the admitting hospital, the neurologist made no attempt to view the MRI results.  The neurologist was aware that Mr. Jones had been taken to another hospital for an MRI study but he never called the hospital, never saw the films, and never requested the films be made available until Monday evening when he had a nurse contact the other hospital’s radiology department.  Because the MRI was treated as routine and instead of the stat or emergency which was charged, the radiologist had gone home for the evening.  The neurologist made no further attempts to obtain the films or contact the radiologist.  On Tuesday morning, the radiologist interpreted the MRI as suspicious for developing a stroke; however before this could be communicated to the neurologist, Mr. Jones experienced respiratory arrest and suffered a pontine stroke.  The massive blockage at the primary blood supply to the rear of his brain caused “locked-in syndrome.”  He can understand everything perfectly but can only respond by slight eye movement.  Mr. Jones is totally dependent upon others for all activities of his daily life. 

            Suit was brought against the neurologist as well as both hospitals.  The defendants attempted to use the “so what defense” by proving no one could guarantee the stroke could have been prevented by prompt diagnosis and administration of anticoagulant therapy.  Our experts were of the opinion “to a reasonable degree of medical certainty it was more likely than not” that the effects of the stroke would have been less devastating if a prompt diagnosis and treatment with heparin or even aspirin had been instituted in a timely manner.  Heparin has been utilized in the treatment of strokes and is generally recognized as effective in preventing the formation of further clots.  The jury recognized Mr. Jones would have suffered some deficit even with diagnosis and anticoagulation in a timely matter, but we effectively shifted the burden to the defense to show what extent of injury was related to stroke without heparin and what injury would have occurred with appropriate therapy.  An impossible task resulted in a verdict for the whole.  This was accomplished through a theory advanced under the doctrine of indivisible injury.  Although this doctrine traditionally involves a single injury produced by the negligence of two or more tortfeasors which cannot be apportioned between them, it was effectively employed here to include the underlying causative agent along with the careless conduct of each of the defendants.  The resulting verdict was returned against all defendants. 

A variation in the application of the traditional doctrine of indivisible injury may be employed in cases involving only one tortfeasor together with one or more causative agents.  In this setting, the patient who is already experiencing an underlying medical problem is met by the negligence of the tortfeasor doctor to produce the disastrous harm to the patient.  In other words, while the patient may have already been experiencing problems, the doctor’s negligence brought about the catastrophe.  The burden is now shifted to the defense to show the same result would have occurred anyway.  This is virtually impossible to prove, the harm cannot be apportioned, and the doctor is liable.  Although a plaintiff’s attorney will still have to prove causation, the task is less difficult because it may be enough that the end results of the negligence are so severe.  The following case illustrates this: 

Adams v. Kaiser[8] 

            The Adams family was a member of a Kaiser Health Plan of Georgia.  Kaiser in Georgia operates no hospitals of its own, furnishing health care through staff physicians and allied health care personnel who practice at its clinics.  Kaiser members receive hospitalization through Kaiser’s negotiated contracts with independent hospitals.  Mrs. Adams brought her six month old son, James, to a Kaiser facility.  The Kaiser doctor diagnosed an upper respiratory infection with postnasal drip following a brief examination.  The doctor recommended saline nose drips, using a vaporizer and Tylenol.  The doctor cautioned her not to be too concerned because even temperatures over 105 degrees are not seriously ill.  Mrs. Adams went home followed the doctor’s instructions and awoke at 3:30am to find her son more feverish.  She called the Kaiser Emergency/After-Hours number and reported to the nurse on duty that her son’s temperature was 104; he was experiencing panting breathing and was very limp and was not moving.  The after-hours nurse telephoned the on-call pediatrician and generally related the James’ symptoms, failing to relay significant parts of the information.  The pediatrician did not diagnose the child as having respiratory distress.  The nurse instructed Mrs. Adams to give her son a bath and to take him to a pediatric hospital 42 miles away declining to give her directions to the hospital.  Thirty miles into the trip to the hospital, the baby began experiencing severe difficulty breathing, lost consciousness, and experience respiratory arrest, which immediately lead to cardiac arrest.  Mr. Adams sped to the nearest hospital where the ER doctor instituted emergency cardiopulmonary resuscitation measures and was ultimately able to get a pulse.  James was transported to a pediatric hospital where he was admitted with septic shock and disseminated intravascular coagulation.  The color never returned to James’ extremities and eleven days later his hands and feet were removed from his body. 

We initiated suit against Kaiser Foundation Health Plan of Georgia under the doctrine of respondeat superior based on the actions of the nurse.  The defendants attempted to use the “so what defense” because James had meningococcemia, a usually fatal bacterial infection which often times results in limb loss of those who do survive.  We were able to prove the nurse’s failure to treat this call as a true emergency resulted in little James respiratory distress proceeded to respiratory arrest and then cardiac arrest.  Had the nurse told Mrs. Adams to hang up and call 911 or go directly to the nearest emergency room, James would never have arrested and would have suffered only a minor loss of tissue, a single digit at the most.  The jury agreed the poor delivery of care of a child in respiratory distress was permitted to progress to cardiac arrest and lost his hands and legs as a result of the interruption in blood flow.  Once again, an example of being unable to divide the injury resulting from the properly treated underlying illness and the total injury resulting from substandard care. 

After over forty years of trial work, I have learned more from my defeats than I have from my victories.  Losing “good” cases allowed me to learn how to understand the prejudice that jurors carry with them.  Justice is absolute.  It does not change with the times or follow public opinion.  As the Bitterman, Jones, and Adams cases illustrate, in order to find justice for your deserving client, you must discover the popular prejudice, separate it from the injustice your client has suffered, and make it work for the justice your client deserves.  By doing this, you are asking jurors to accept what they already believe which is infinitely easier than attempting to persuade them to accept what they do not want to believe. 

The Future 

It has been refreshing to go back home and out into other areas of Georgia where it has become possible in the right case to obtain just verdicts against errant health care providers.  Juries everywhere have been holding doctors accountable for their negligence.  The fact that patients and doctors have been approaching equal footing has caused a self-styled “crisis” among the medical and insurance communities.  Everyone with a television set has been constantly bombarded with the need for “tort reform” based on the notion of juries paying outlandish awards for outlandish cases with little or no merit.  This “crisis” is the increase of medical malpractice in this country over the last 30 years.  The increase may be explained by patient’s rights, innovation, and the lack of disciplinary action by the state and Managed Care Organizations. 

The domination of Managed Care Organizations (“MCOs”) is the most significant change in medicine over the last thirty years.  This change in the healthcare industry may be the most responsible culprit in the increase in instances of medical negligence.  Profit-motivated decision-making increases both the risks and liabilities associated with the delivery of health care.  MCOs have the biggest effect on the quality of care and the wrongful denial of access to medical treatment. While its stated goal of containing health care costs is certainly laudable, the reality is that managed care contains costs by restricting the manner in which health care is delivered, oftentimes to the detriment of the patients. In the managed care environment, profit-motivated decisions have created a new category of victims who did not exist before.  When you combine healthcare with discount contracts, fee withholding arrangements, gag clauses, disastrous consequences will arise with predictability. 

What does the future hold for the victims of medical carelessness and which way will the pendulum swing?  That, my friends, may very well be up to you.

When you choose an ABPLA board certified attorney you can rest assured that you have one of the best malpractice lawyers in the country.