What Malpractice Lawsuits Can Teach Us About Coping With Uncertainty

Most physicians are sued at least once before they hit the age of forty. This is not necessarily due to actual malpractice, but rather to the inherent complexity of the work. Mistakes can sometimes be made without intent and even without the possibility of prevention. When something goes wrong, there is almost always guilt. And when lawsuits arise, blame becomes the guiding force to operate on that guilt.

When I was eighteen, my father was sued for medical malpractice for a case that proved blameless in nearly every capacity. Accordingly, not a single attorney took on the case, let alone ruled against my father, but nevertheless, because of that lawsuit, the hospital where my father worked took away his privileges to practice medicine. With a loss of identity, livelihood, decades of training, and limited funds, my father decided to sue the hospital to right his own wrong, displacing the blame in order to get his name, reputation, and livelihood back, and it was this lawsuit—not its source—that devastated our family financially and in many ways, personally. We lost our home and bank accounts—of course, incomparable losses to what other families lose in legitimate malpractice cases. Yet because of this, I learned at an early age that lawsuits are based not always on guilt, but on blame. When blame is not easy to spot, they are filed because of the need to learn the full story.

After years, my father was eventually able to move past the lawsuit and continue practicing the medicine he loved so dearly. He found new hospitals in which to work, additional outlets beyond general surgery to help others, discovered a joy in working in small-town emergency rooms in need across Texas, and embraced a renewed sense of purpose despite the outward bruises. Nevertheless, this conceit crystallized in early 2012 when I moved to Los Angeles and took a job as a medical malpractice defense attorney at a midsize law firm. That one year alone decimated thirty-three years of complete trust in the medical establishment as my everyday focus became the exception to the medical norm.

The infinitesimal percentage of things going wrong became the one hundred percent focus of my daily life. I saw lawsuits flying in where no fault could possibly be found. I saw families drained and mourning as they longed for answers. I saw physicians devastated by split-second decisions that they believed were right at the time. I did also see malpractice, actual wrongdoing on the part of institutions and physicians where blame and guilt properly belonged, but this was far less common than the undeniable sadness of both parties wishing their time was spent anywhere but with us.

One case remains with me, years later. The defendant: a young man working as an anesthesiologist, happily married. His wife is pregnant with their first child, and a few weeks after giving birth, he returns to his work. He is scheduled to perform anesthesia on a case for an elective surgery. He goes into work as he has for years. Sure, he had been dizzy for weeks by the time of this particular surgery, but that is because he is a new parent. This change in temperament, this sleeplessness, all comes with the territory of new parenthood. Given his work, it is vital that he sleeps sufficiently, that he does not come to work exhausted. The slightest movement in the wrong direction could result in catastrophe.

There is another young man—kindhearted, eager to start his own business, a devoted husband and father. He elects to have surgery to combat his battles with obesity. Though it’s usually a straightforward operation, this surgery still carries with it risks and complications, as do all surgeries. He signs waivers, is prepped, and looks forward to a better future professionally and personally.

The anesthesiologist begins to administer the anesthetic. Though a bit more exhausted and dizzy than usual, he is well trained to perform his job. He has performed this work hundreds of times and under far more stringent conditions than exhaustion.

This time, though, the anesthesiologist places a tube in the wrong anatomical airway, and as a result, the patient can’t breathe. Numbers are flying in the wrong direction on the monitors, but not everyone catches the numerical anomaly in time. There is a lack of oxygen in the patient’s brain for a period of time. The doctor doesn’t quite catch the numbers slipping. He isn’t communicating properly with his team, with the surgeon, with the nurses. The surgeon tries to help; he struggles to get oxygen to the patient, but it is too late. For that brief moment while the patient loses oxygen, he suffers anoxic brain injury. He is placed in a coma, and his future becomes unknown.

And yet the story, like all stories, is not that clear. The doctor never comes home after the surgery. Following the mistake in the OR, the anesthesiologist realizes something must be very wrong, so instead of going home after the operation, he visits a doctor and discovers that it isn’t new parent exhaustion causing his slip of the hand, but rather that he has been unknowingly suffering from a brain tumor. He spends the rest of his life in treatment centers, operating tables, doctors’ offices, chemotherapy suites, and hospital beds.

The patient lives, and the family is able to focus on his recovery. In this time, he regains consciousness and with extensive rehabilitation, is able to learn how to walk and talk again, though never as well as before. While his condition does improve daily, he is disabled, requires home health workers, and loses a substantial amount of his future livelihood.

The anesthesiologist dies just over a year later, leaving behind his wife and new baby. The patient later sues the dead doctor’s estate for malpractice. Did the anesthesiologist make a mistake? Yes. But could he be ethically blamed? It is unlikely. There are no winners, no exculpatory individuals in this case, only people understandably looking for answers. Even in a potentially clear-cut case of malpractice like this one, where blame may be discernible, there still may be guiltless parties. How do we accept this reality when we need to make sense of an event catastrophic to so many lives?

Intellectually, I know things can go wrong in medicine, but even when they do, it is hard to accept that often nobody is at fault morally. Unlike criminal cases, medical malpractice cases present a window into an often blameless system of fault. And when that happens, what do we do with guilt? We turn it inward. Blame, though, somehow shifts the angle outward. It needs a scapegoat. It tells itself that it needs the law. In some cases, it absolutely does. But in most, the law is a poor substitute for closure.

I saw people—both patients and physicians—lose their livelihoods, their lives, their minds, all seeking one thing: exculpation in the narrative of litigation. Deeply, passionately, desperately seeking someone on a pedestal with a gavel, saying “guilty” to someone other than themselves.

I saw my father do it in my childhood for years as the arguments with my mother escalated and the numbers in their bank account dwindled. Until all of their children left home and tried to move past this “fourth child,” this lawsuit that served as nothing more than a need to place certainty in a world where there is none.

It didn’t take long in my practice of law to realize that the main reason people sue is not for money, but for answers. True, there is a hefty group of individuals who sue purely for money, perhaps motivated by revenge or greed or often the necessity to pay bills, but tainting all of it is the need for answers. For discovery of truth, discovery of life. The early process in litigation is literally called “discovery”; it is a means by which people can investigate the truth about their injuries and health crises and find someone to blame, find a culpable party that is hopefully anyone but themselves. Often they do not find a clear and objective answer, and with no answer there is no certainty. This reality is one of the only truths: that sometimes there is simply nothing and no one to blame. A cruel revelation for an attorney. A beautiful one for a writer. A necessary one for a patient.

From The Tincture of Time by Elizabeth L. Silver. Reprinted by arrangement with Penguin Press, a member of Penguin Group (USA) LLC, A Penguin Random House Company. Copyright © Elizabeth L. Silver, 2017.

What Malpractice Suits Can Teach Us About Facing Uncertainty