March 2017
Blessed Are You Who Have Not Been Sued

Blessed are you who have not been sued! I have been sued four times in my 40-year career, probably not bad for a high-risk specialty such as neonatology. Like pediatrics and obstetrics, patient care decisions I make involving a newborn put me at malpractice risk for 18+ years.
 
The first suit occurred shortly after I had finished training. One Saturday, as I was going out to get the morning paper, a sheriff's car pulled up beside me and the sheriff said, "Mr. Roberts, you are hereby duly served!" and handed me an envelope containing a hand-written pro se pleading. "Pro se" means the person was representing himself and a "pleading" is a one-page legal form that identifies the complaint and makes the request for a trial to settle the matter. Over a cup of coffee, I read the following: "I, Mr. X, do hear by sue you, John Roberts, for performing a bad circumcision. I want $20 million dollars. I want $10 million for my son who had the bad circumcision, $5 million for his mother and $5 million for me, for pain and suffering, and all that stuff." This was all very curious as, at that time, I had never performed a circumcision. I called my insurance company who reassured me that they would take care of it. About two weeks later I received a phone call at home. It was Mr. X. "Mr. Roberts, sir, I understand you have talked to a lawyer about my case. Now Mr. Roberts, I am sure two reasonable men could sit down and come to some agreement without involving lawyers." I replied that I have malpractice insurance so that attorneys can take care of such matters for me. Six months later the courts threw out the case. No one could get in touch with Mr. X.
 
The second case involved a 26-week gestation baby born in 1989, when the survival of such small babies was less than 50 percent and most survivors had significant developmental disabilities. The baby developed hyperkalemia while on parenteral nutrition and had a cardiac arrest, was successfully resuscitated, but died at 3 months of age while still ventilator dependent and with hydrocephalus from an intraventricular hemorrhage. The mother wished to withdraw care. Six months later, the suit was filed; after two years of expert testimony and depositions, the case was settled for $25,000. I expect the plaintiff's attorney got most of it.  I think of this case every time I write for IVs with potassium; certainly, I might order far more blood chemistries than necessary.
 
My third suit involved the death of a baby within 48 hours of discharge. The baby had been born four weeks early, but two weeks later the baby was feeding well, gaining weight and was sent home with her teenage mother. I had arranged for a home health nurse to visit the family the next morning. Two days later, the baby was dead on arrival in the ER; this was attributed to SIDS. The malpractice suit was filed a few months later and the case remained active for two years. Multiple experts on my side gave testimony regarding SIDS and overlaying and the standard of care relating to the discharge of premature babies to home.  The plaintiff contended that I sent the baby home too soon. The home health nurse's documentation showed that she tried to see the baby at home multiple times the morning after discharge, but no one answered the door. The mother swore under oath that the nurse must have gone to the wrong apartment and that she and baby were home. The case ended when the baby's maternal grandmother finally testified that her daughter had actually been at the baby's father's house, against her own mother's advice.
 
Finally, there was the very, very sick premature infant at whose bedside I literally stayed at all night. The baby required ventilation, blood volume expansion and vasopressors for days. I have had few babies so sick as this one. We made it through the night and three weeks of hospitalization. The baby was breast feeding and had breast milk jaundice. I had stopped checking the bilirubin levels. But on the weekend prior to the anticipated discharge, the baby became acutely jaundiced and quite ill. He looked septic, and was given antibiotics. The baby improved and went home. Pleading papers came four years later. The baby had delayed motor development and findings consistent with kernicterus. After two years of depositions and expert testimonies the case was settled; my part was $200,000, which I do not begrudge. The child will have a difficult life.
 
These suits, and fear of others, have affected how I practice medicine. They have taken a toll on my psychologic wellbeing. The KMA is again working to reform the tort laws. Our legislators need to hear these stories and others like them.  They need to know that the fear of malpractice suits causes us to order unnecessary tests and to keep patients in hospitals longer. Frivolous suits shade our feelings toward our patients and make our careers less satisfying and often shorter. The fear of malpractice, and the cost of malpractice insurance, dissuades family physicians from delivering babies, worsening rural access to obstetric care. Contact your legislators and tell them your stories. If you have not been sued, count your blessings and then contact your legislators. 


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