Two simple words

Yesterday I blew a wheel bearing on my way home from work and wound up sitting beside Route 6 for 2 1/2 hours waiting for the wrecker. (Only 70,000 miles on the vehicle, I am not at all gruntled.) Anyway, the guy finally did show up and he was quite friendly. On the drive to the Nissan dealership he asked me what kind of work I do and I told him I'm a medical sociologist, I mostly study communication between doctors and patients. Then, as is my wont (I'm a data addict) I gave him the prompt. "Usually when I tell people that they have stories to tell me."

Did he ever. I'm don't have a lot of time today to invest in literary quality so I won't try to reproduce his voice, but here's the gist of it. Fred (let's call him) had a hernia operation a couple of years ago. It's basically day surgery, I don't even think he stayed overnight. Walking to the car with his wife he felt an excruciating pain in his abdomen. They went home anyway but from there he called the surgeon and said he was in pain.

"Why? Did you fall on the ice?" Fred took his eyes off the road long enough to beam his rage at me. "I said to him, Why the fuck would you say that? Why the fuck would you say something like that to me?" Anyway, the surgeon told him not to worry about it.

So Fred tried not worrying. But he had no appetite. He kept feeling more and more bloated, like he had gained 20 pounds, but he wasn't eating anything. A couple of days later, he vomited. "I said to my wife, shit, that's food I ate three days ago." Then he started torrential sweating and the pain became unendurable, so his wife took him to the ER.

"There was a Polish doc there, a good guy. They did a cat scan, then he said to me, You're in critical condition. We're going to have to operate. I said when, tomorrow? He said no, now. Five minutes later they had me knocked out."

It turns out the surgeon had stitched the patch to his small intestine, which stopped the peristalsis -- the waves of contractions -- that move material through the system. I had to help Fred with the technical details, which he still didn't completely understand, but this is called paralytic ileus. Food and the tiny amounts of air and saliva we continually swallow were backing up above the obstruction, while the rest of the tract below had emptied out. This situation could have killed him a couple of different ways, including peritonitis if the stitches were leaky. His intestines could have ruptured. Part of the intestine could also have died. You get the idea -- this was not good. Oh yeah -- he got a C. difficile infection, which is a common opportunistic nosocomial infection which moved in when the antibiotics they pumped him full of wiped out his normal intestinal flora. It's extremely nasty. Fred was hospitalized for 11 days.

Sooo . . . Toward the end of the ordeal he saw the nice Polish doc out in the corridor talking with Doctor Badfingers, who then came into his room. But Dr. Badfingers wouldn't admit what he had done. He hemmed and hawed and spouted some BS. "Why couldn't he just apologize?" Fred demanded. "That's all he had to do. I make mistakes working on cars, you know? He could have said it was close quarters in there, he just got a couple of stitches in the wrong place, he's sorry. But he wouldn't say that."

So I told Fred that lots of doctors have been told not to apologize because the hospital lawyers think it will count against them in a malpractice suit. In fact, this question has been researched and doctors are less likely to be sued if they apologize. Most malpractice suits have less to do with the technical screwup -- if any, although in this instance there would seem at first glance to be a good case for negligence -- than they do with the interpersonal interaction surrounding it. And Fred had indeed gotten a lawyer and was indeed looking to sue, which he said he would not have done if the guy had just apologized.

Unfortunately for Fred, he probably isn't going to get anywhere with his suit, not because this is not malpractice, but because the award he could get probably wouldn't be worth it. He doesn't have long term damage, he's back at work, he's big and robust and jolly (when he isn't thinking about this experience) and jurors just aren't going to break down and weep for him. His lawyer needs to be looking at a big enough contingency to make the whole thing worth his while and he'll probably decide it just isn't there. But I'm speculating.

The problem with the whole malpractice tort system is not that it drives up medical costs, as Republicans would have it. They are wrong about everything, of course. Malpractice awards, insurance, and resultant "defensive medicine" probably contribute around 2% to overall medical costs, and of course some part of that, maybe most of it, is perfectly legitimate. However . . .

The likelihood that a doctor will get sued has little to do with whether the doctor did in fact act negligently or incompetently. Mistakes and bad outcomes happen which are not the result of negligence, but the people who suffer from them can't get compensated, and can't even get their subsequent medical costs or other care needs resulting from the medical error or bad outcome paid for. Yet people like Fred often can't sue, which means he doesn't get compensated for his lesser harms of missed work and pain and suffering, even though he probably is the victim of negligence. Finally, people whose bad outcomes are not the result of negligence often do sue anyway, and while they don't usually win, they generate litigation costs.

What we need is a no-fault system for compensating iatrogenic harms, and a separate system for holding physicians and hospitals accountable for avoidable errors. We need to sever the two problems.

And oh yeah, Doc -- say you're sorry.