It’s unlikely that a physician – no matter what their specialty is – can get through their professional career without being named in a medical malpractice lawsuit. My first malpractice lawsuit occurred when I was still in residency. I responded to a “code blue” in pediatrics and spent 5 hours with a huge team trying to save the child, after which I was sued. I kept receiving “interrogatories” from the plaintiff’s lawyer asking why I made specific treatment plan decisions prior to the night the child required CPR. I kept responding with, “I never saw this child before I responded to a CODE BLUE.” This back and forth went on for months and I was threatened with contempt for being “non-responsive.” Months later I realized that the parents had mistaken me for the attending physician because we both had log dark hair which we wore in a ponytail. They had sued me by mistake. That happened 34 years ago, and even though I was eventually “non-suited,” I still have to list that lawsuit on medical staff applications.
One suit against me did end in the payment of a settlement. The judge allowed me to be named in a malpractice lawsuit even though I had never personally seen the patient. The rationale for including me was that, as the Medical Director of the outpatient wound center, I was responsible for ensuring that no hospital in-patients in the Intensive Care Unit developed pressure ulcers. The judge allowed me to be named in a suit by a patient I never personally saw after the statute of limitations had passed. Every time I fill out an application for hospital privileges, I have to go through the story again.
We want judges who are both wise and fair-minded and in my experience, most of them are. They are also powerful. They can make decisions that override a jury verdict. I can imagine a situation in which the judge overturning a jury verdict might be the best way to achieve a wise and fair outcome. We have all seen juries do silly things. However, in a 2016 malpractice case against a radiologist, the jury listened to testimony from 11 witnesses and reviewed 925 pages of exhibits before unanimously agreeing that the doctor was not negligent. The judge threw out the jury’s verdict and granted the plaintiff’s request for a new trial because he disagreed with the jury. The physician defendant appealed the case to the Texas Supreme Court, asking for the high court to reinstate the jury’s verdict, and the Texas high court is reviewing it. There are a lot of eyes on this case, because physicians want a consistent and transparent standard for reviewing requests for a new trial.