On The Fence About Medical Malpractice

[+ LIguy]

Around March of last year during a yearly cat scan to keep check on an aortic disesction the doctors found a mass next to my esophogus. The hematologist/oncologist who has treated my blood disorders told me he will arrange for a biopsy with a doctor he feels is best for the job. The gastro surgeon he sent me to said my oncologist was turned down by a few other docs to do biopsy.  Possibly because of the pandemic.  Anyway I start injecting my self twice a day with a blood thinner and stop warfarin. I go into hospital on Sunday....biopsy done on Monday...another cat scan on Tues and discharged. 4 days later I'm collapsing and calling 911....Put in intensive care and kept sedated.....right lung collapsed and filling with bloody fluid.  Chest tubes inserted....family told I had a poor prognosis.....I was on a ventilator and eventually trached.....over 3 months in hospital and 4 months in a rehab facility learning to walk and function.

I am angry that this happened....I lost my business and I just want my life back....my family won't allow me upstairs to my apt or to drive...I am walking with a cane.

I want to hire a malpractice firm but I feel if I'm wrong I could damage the reputations of my former oncologist and the gastro surgeon.  I know there are some docs on this board and would love your opinion.

 

[+ Lucky]

So sorry to hear of your experience. I wish you well.

Wouldn't the opinions of lawyers be more helpful in this situation? If you did consult with a malpractice firm, they would likely tell you if you were wrong in pursuing malpractice against these docs.

[+ nycman]

3 hours ago, Lucky said:

If you did consult with a malpractice firm, they would likely tell you if you were wrong in pursuing malpractice against these docs.

That’s a little bit like swimming up to a shark and asking if he’s hungry. 

The biopsy sounds like it was incredibly high risk from the start. 
Of course, the physician who did the biopsy should have told you that and at least
given you an idea of the protential risks of proceeding with the procedure versus
the risks of doing nothing.

He doesn’t have to paint a grim detailed picture of the worst case catastrophic 
scenario however. That’s an impossible task and he’s a physician, not a fortune
teller after all. 

The fact that several other physicians refused to even attempt the biopsy is a huge
clue as to the level of risk involved. But that doesn’t necessarily equate to malpractice. 
After all, the world needs physicians who are willing to take calculated risks with
informed patients in high risk cases.

Unfortunately, because of the toxic malpractice environment in the US, most doctors
will only go after the low hanging fruit. Why expose yourself to potential malpractice
claims, when the procedure is unlikely to pay anymore than an "easier" case?

I’ve been asked to review several friends potential malpractice cases. In each case, 
I advised against suing the physician. Yes, there are always minor deviations and
imperfections in the chart. They are rarely if ever related to the perceived bad outcome.

I’ve also tried to counsel them about the pain and suffering of going through a malpractice 
trial for everyone involved. The plaintiff doesn’t get a free ride, trust me. None of them have 
listened to me. They have all consulted with a malpractice attorney who has managed to 
convince them they have an airtight case. 

After years of pain and suffering, each and everyone of them lost. Believing more than ever 
that they were wronged. By the doctor, their attorney, the doctor’s attorney, the judge, the jury,
and even somehow me. Everyone walks away, and they are left, 10 years older and worse off
than when they started. 

You REALLY want an honest opinion? Pay a malpractice defense attorney to review the case.
They won’t have any financial gain in lying to you about the prospects of your case. You 
most likely won’t like what they have to say, but it will be objective and painfully honest. 

I’m sorry this happened to you and I hope this helps. 

[+ Just Sayin]

when I have had clients who have experienced these types of situations, I have referred them to well-regarding medical malpractice attorneys; the clients may not like what the attorneys have to say, but it will be a realistic appraisal; since these types of cases are usually handled on a contingency fee basis, the attorneys can evaluate whether a case has value or not

[+ nycman]

34 minutes ago, Just Sayin said:

since these types of cases are usually handled on a contingency fee basis, the attorneys can evaluate whether a case has value or not

Yes, and no. 

Unfortunately, medical malpractice is a big ticket item. The attorney only has to win a few 
to come out on top. For him it’s like playing cards in Vegas. He doesn’t need a perfect hand,
he just needs better cards on average than the house to tilt the odds in his favor. The truth
is that the vast majority of medical malpractice trials are found in favor of the physician.

If a medical malpractice attorney wins 1 in 10 cases, he’s a super star. And they comb through
piles of charts trying to find those select 10 cases. So if he tells you your case is crap, believe
me, your case is really crap. Nonetheless, if he tells you you’ve got a "good case" it just means 
he thinks you’ve got about a 1 in 20 chance of winning and he’s willing to take those odds. 

If you’re still going down this ill advised route of chumming the shark infested waters,
I’d only advise that you really do your homework on the attorney you choose to review the file. 
If you pick one off TV or some one your friend’s, friend’s, aunt’s, cousin used when the Vet 
misdiagnosed her pet chinchilla, (or better yet use a real estate attorney, don’t laugh I’ve 
seen it done), I will fucking slap you. An attorney in financial distress will take any case he 
can get his hooks in. Just like a homeless drunk putting his last $10 on the roulette wheel
in Vegas. 

So if you really think you have a case (I’m doubtful), then you pay a professional to review 
the case and ask them to give you an honest opinion. Not a plaintiff’s malpractice attorney
(who’s just fishing for a winning lottery ticket on contingency). Yes, it will cost you a few
thousand dollars, and you most likely won’t like the answer you get, but you will have the
peace of mind that you have an honest and disinterested third party opinion.

That’s the best you can do. 

[Rudynate]

20 years ago, I experienced a massive blood clot - it went from the back of my knee up the leg into my femoral vein, into my iliac veins and into my vena cava to the level of my kidneys.  They were dumbfounded, no one had seen anything like it.   The original treatment plan was to transfer me to a larger hospital that had a good vascular lab and dissolve the clot using thrombolytics. Everything was put in motion for the transfer and suddenly, someone at the receiving hospital put the brakes on, saying that the risk level was unacceptable, it couldn't be reliably managed.  So, they put me on a blood thinner and discharged me.   Weeks later, I went to the Stanford Vascular Center for a second opinion.   The doc I saw at Stanford just shook his head  and said , "THEY couldn't manage the risk, but it WAS manageable."  Of course I was furious.  I talked to three malpractice attorneys and none of them thought I had a case.  They said "you're alive, you still have use of your leg,  a judge would probably throw this out of court."   They all said that the treatment had been "reasonable."  They agreed that treatment with thrombolytics would have been optimal, but that the law didn't require that you have "optimal" treatment.  The treatment only needed to have been "reasonable."

[+ nycman]

5 minutes ago, Rudynate said:

They said "you're alive, you still have use of your leg,  a judge would probably throw this out of court." 

That’s what they said……what they meant was:

"you're alive, you still have use of your leg…there’s not enough cash reward at the end of this for us"

If the treatment was reasonable (it most likely was) then it doesn’t matter if your dead or alive
or have use of your leg or not. The size of the reward however is extremely contingent on you
being dead or alive and/or the extent of the injury. They inadvertently tipped their hand. 

[Rudynate]

Just now, Rudynate said:

30 minutes ago, nycman said:

That’s what they said……what they meant was:

"you're alive, you still have use of your leg…there’s not enough cash reward at the end of this for us"

If the treatment was reasonable (it most likely was) then it doesn’t matter if your dead or alive
or have use of your leg or not. The size of the reward however is extremely contingent on you
being dead or alive and/or the extent of the injury. They inadvertently tipped their hand. 

Of course, I know that.   One of them even explained it in terms of the case's investment value. 

[Guest]

On 10/30/2021 at 1:48 PM, LIguy said:

...The gastro surgeon he sent me to said my oncologist was turned down by a few other docs to do biopsy....

I am angry that this happened....I lost my business and I just want my life back....my family won't allow me upstairs to my apt or to drive...I am walking with a cane.

I want to hire a malpractice firm but I feel if I'm wrong I could damage the reputations of my former oncologist and the gastro surgeon.  I know there are some docs on this board and would love your opinion.

 

It sounds as if the gastro surgeon was telling you the procedure was so high risk, most other surgeons didn't want to do it, or was that not how he communicated it? If it wasn't, it sounds as though he should have told you that this was a high-risk procedure. The fact that there's an adverse outcome most certainly does NOT mean that medical malpractice occurred. Why are you even bringing up the name of the oncologist? Is it your thinking that the mass was not suspicious to begin with, and the oncologist should have never even tried to find a surgeon who'd operate? What exactly is the train of thought in this situation? In that case, what did the radiologist's report say? Did the radiologist say the mass was suspicious? If yes, the oncologist and surgeon were agreeing with a radiological specialist, so I doubt that the decision to operate could be deemed unreasonable. You don't mention the results of the biopsy, but since you're angry about the outcome, I'm assuming that the mass was benign, and you're upset that the procedure was ever done. 

Where are you suspecting there was a breach in the standards of care? Are you suspecting the CAT scan was misinterpreted, and that there shouldn't have been any suspicion of a cancerous growth? In that case, the radiologist bears the primary responsibility. Are you suspecting the surgeon was sloppy when he did the surgery? Do you feel the issue is that the surgeon didn't adequately communicate the risks involved in the procedure? I don't see where the oncologist falls into any of this. 

If you want an unbiased investigation not tainted by possible financial gain, file an official complaint with the medical board. Everything will be investigated at no charge to you. Committees of specialists in the fields involved (radiologists, surgeons, oncologists) will look at the films and the medical records to see if your care was appropriate.  If there were any breaches in the standards of care, the medical board will take whatever remedial actions are necessary (if the breach was minor, a letter of reprimand; if more serious, they may require educational courses for the physicians involved). Expect the process to take about a year. If the care was deemed substandard, this will make any litigation much speedier, as much less discovery will be needed--the only issue will be what the damages are. 

[Guest]

13 hours ago, Rudynate said:

...  Of course I was furious.  I talked to three malpractice attorneys and none of them thought I had a case.  They said "you're alive, you still have use of your leg,  a judge would probably throw this out of court."   They all said that the treatment had been "reasonable."  They agreed that treatment with thrombolytics would have been optimal, but that the law didn't require that you have "optimal" treatment.  The treatment only needed to have been "reasonable."

Just as it takes much more than an adverse outcome for there to be medical malpractice, it takes more than a patient being "furious" for there to be a malpractice case. In this case, it doesn't even sound as if there was any adverse outcome (at least it wasn't mentioned in the post), other than the patient being "furious." Even if the first doctors' care was considered "unreasonable," if the ultimate outcome was favorable, there's no legal case for malpractice. There has to be an injury for there to be a malpractice case (and being "furious" doesn't count). What if you had been given thrombolytics, and you bled out, as in the OP's case? Would that have been malpractice then (certainly there would have been an adverse outcome)? Or were either the more or less aggressive approaches reasonable in this circumstance? For the most part, physicians try to practice reasonably, and it sounds like maybe the Stanford physician was tooting his own horn and stirring up trouble which didn't need to be stirred. 

For there to be a successful malpractice case, at least three things have to be true: (1) one of more physicians breached professional standards of care (did not perform as well as a reasonable physician would under the circumstances), (2) there was a compensable injury, and (3) the breech in the standard of care was what caused the injury in question. Without injury, there's no malpractice, which is what multiple attorneys were trying to tell you. 

Edited November 1, 2021 by Unicorn

[Rudynate]

Of course there was an adverse outcome.  Because they didn't follow the original treatment, they discharged me with the deep veins in my leg and my pelvis obstructed with clot.  There was a a time window of two weeks or less in which the clot could have been treated with thrombolytics.   They squandered that, virtually guaranteeing that I would have lifelong circulatory problems in that leg. Flash forward to twenty years later,  the venous outflow in that leg is 15% of normal and I have venous insufficiency - injuries which were all foreseeable and preventable if they had acted as they had originally intended to.

Once again, Unicorn,  you have embarrassed yourself by trying to sound authoritative regarding something you know nothing about.  You don't know anything about the law of torts and I doubt whether you know much about vascular medicine - PCP's usually don't.

[Guest]

3 minutes ago, Rudynate said:

Of course there was an adverse outcome... You don't know anything about the law of torts and I doubt whether you know much about vascular medicine - PCP's usually don't.

What I said in my reply is that you made no mention of an injury in your post. Only that you were "furious." There's no "of course" about it. For all of your knowledge about torts, you had multiple attorneys tell you your case would be thrown out of court. And I never pretended to have knowledge of the specifics in your case. What I pointed out was that with no injury, there is no legal case for malpractice. I'm sorry you had a bad outcome. I don't know whether or not you were a victim of malpractice. Apparently legal experts think not. 

[Rudynate]

I never said that I was a victim of malpractice.  I was relating my story for whatever use it might have been for the OP - to give him an idea that a bad outcome doesnt mean that under the law you have been a victim of malpractice.  I had a bad outcome yes, one which was foreseeable and preventable.  The only reason it wasnt malpractice was that the treatment offered, however inadequate, was "reasonable" at the time.    It wasn't just the specialist at Stanford who told me I should have been treated differently - doctors within the organization providing the treatment have told me that they would have used thrombolysis in that circumstance.

 

 

[Rudynate]

Who said I had bleeding?  Read my initial post again.  I clearly said that I had a massive blood clot.  What is a thrombus, but a blood clot?  I don't know about you, but I try to stay on topic as much as possible when I post to a thread.

[+ LIguy]

The biopsy showed I have Lymphoma.  I start another round of Rituxan on Friday.

 

[drintor]

my error , the reference was to the original post by LIguy not yours.

[Guest]

59 minutes ago, LIguy said:

The biopsy showed I have Lymphoma.  I start another round of Rituxan on Friday.

 

Well, it sounds as if the radiologist, oncologist, and surgeon were all correct in their concerns. In my mind, you should be grateful the surgeon was willing to undertake a clearly risky surgery, which multiple other surgeons turned down (presumably for fear of the outcome you had, or worse). If he had declined, your lymphoma would not have been found, and you couldn't have received treatment for that. Surgeons are all rated on their success rate (which can be found online). In accepting this risky surgery, you should understand that this surgeon really stuck his neck out for you. The statistics don't take into account the riskiness of the procedure, so I personally applaud surgeons who are willing to take on difficult cases at the risk of their personal reputation (from the statistics alone, let alone the risk of putting their life through the wringer fighting a malpractice case). 

I'm still not quite clear where you believe the malpractice occurred. Was it in the process of obtaining informed consent? Did he not make it clear to you this was a risky procedure? It sounds that this may have been the case, because patients seem to be most upset when caught by surprise. Even if that's the case, however, would you really have refused the procedure had you been adequately informed of the risks involved? What would have happened if your lymphoma hadn't been diagnosed? I'm truly sorry for your outcome, but we must give some credit to the surgeon. And the oncologist seems entirely blameless, from the facts that you've given us so far. In fact, it looks as though he tried very hard to find a surgeon who'd operate, after multiple turned him down. If it were me, he'd have my gratitude.

Edited November 1, 2021 by Unicorn

[+ nycman]

1 hour ago, LIguy said:

The biopsy showed I have Lymphoma

I’m sorry to hear that and I’m sorry you’ve had such a rough course. 

My thoughts and prayers are with you. 

[Rudynate]

1 hour ago, LIguy said:

The biopsy showed I have Lymphoma.  I start another round of Rituxan on Friday.

 

I'm really sorry to hear that.

[+ WilliamM]

8 hours ago, Unicorn said:

Well, it sounds as if the radiologist, oncologist, and surgeon were all correct in their concerns. In my mind, you should be grateful the surgeon was willing to undertake a clearly risky surgery, which multiple other surgeons turned down (presumably for fear of the outcome you had, or worse). If he had declined, your lymphoma would not have been found, and you couldn't have received treatment for that. Surgeons are all rated on their success rate (which can be found online). In accepting this risky surgery, you should understand that this surgeon really stuck his neck out for you. The statistics don't take into account the riskiness of the procedure, so I personally applaud surgeons who are willing to take on difficult cases at the risk of their personal reputation (from the statistics alone, let alone the risk of putting their life through the wringer fighting a malpractice case). 

I'm still not quite clear where you believe the malpractice occurred. Was it in the process of obtaining informed consent? Did he not make it clear to you this was a risky procedure? It sounds that this may have been the case, because patients seem to be most upset when caught by surprise. Even if that's the case, however, would you really have refused the procedure had you been adequately informed of the risks involved? What would have happened if your lymphoma hadn't been diagnosed? I'm truly sorry for your outcome, but we must give some credit to the surgeon. And the oncologist seems entirely blameless, from the facts that you've given us so far. In fact, it looks as though he tried very hard to find a surgeon who'd operate, after multiple turned him down. If it were me, he'd have my gratitude.

I am not sure someone who has just had bad news is inclined to thank the doctor (at least not right away).

[Rudynate]

9 hours ago, Unicorn said:

Well, it sounds as if the radiologist, oncologist, and surgeon were all correct in their concerns. In my mind, you should be grateful the surgeon was willing to undertake a clearly risky surgery, which multiple other surgeons turned down (presumably for fear of the outcome you had, or worse). If he had declined, your lymphoma would not have been found, and you couldn't have received treatment for that. Surgeons are all rated on their success rate (which can be found online). In accepting this risky surgery, you should understand that this surgeon really stuck his neck out for you. The statistics don't take into account the riskiness of the procedure, so I personally applaud surgeons who are willing to take on difficult cases at the risk of their personal reputation (from the statistics alone, let alone the risk of putting their life through the wringer fighting a malpractice case). 

I'm still not quite clear where you believe the malpractice occurred. Was it in the process of obtaining informed consent? Did he not make it clear to you this was a risky procedure? It sounds that this may have been the case, because patients seem to be most upset when caught by surprise. Even if that's the case, however, would you really have refused the procedure had you been adequately informed of the risks involved? What would have happened if your lymphoma hadn't been diagnosed? I'm truly sorry for your outcome, but we must give some credit to the surgeon. And the oncologist seems entirely blameless, from the facts that you've given us so far. In fact, it looks as though he tried very hard to find a surgeon who'd operate, after multiple turned him down. If it were me, he'd have my gratitude.

anticoagulation may have been restarted too soon.

[Guest]

1 hour ago, Rudynate said:

anticoagulation may have been restarted too soon.

Obviously, neither of us knows that, since we're missing lots of facts about the case. If the OP would like to know, I would again advise the medical board investigation. The county medical association or specialty board (American College of Surgeons) can also investigate--probably far more quickly--but they might not be as unbiased, and they have no power to impose heavy sanctions (other than revoking the doctor's membership or board certification). If the OP would like a quick answer, I guess the ACS might be the way to go. For an investigation with teeth, the medical board would be the way to go. 

I will add that if there's a medical board complaint, the surgeon will almost certainly have to hire an attorney if one isn't provided by the organization who hires him (such as Kaiser), since there are serious legal consequences at risk.

Edited November 1, 2021 by Unicorn

[+ FreshFluff]

@LIguyI’m really sorry to hear about this situation. I hope you get better care from now on. 
 

@RudynateI know nothing about the malpractice side. But it’s incredibly frustrating to hear that your previous medical team screwed up, especially when the mistake is consequential.

[Guest]

1 hour ago, FreshFluff said:

...it’s incredibly frustrating to hear that your previous medical team screwed up, especially when the mistake is consequential.

I don't know any more about the details of this case than you do, unless @Rudynatesent you a private message. I'm just curious why, with your limited knowledge of this case, do you think you know more than the three attorneys, who presumably actually looked at all of the records in this case, about whether his "medical team screwed up"??? It's easy to make quick judgments with limited facts. I prefer to reserve my judgment until all of the facts are laid out. 

Edited November 2, 2021 by Unicorn

[Rudynate]

1 hour ago, FreshFluff said:

@LIguyI’m really sorry to hear about this situation. I hope you get better care from now on. 
 

@RudynateI know nothing about the malpractice side. But it’s incredibly frustrating to hear that your previous medical team screwed up, especially when the mistake is consequential.

Things could be worse. My hematologist and vascular surgeon are that kind of Dr.  where you know immediately that you're in good hands and can trust them.