Medical blogger Shadowfax over at Movin‘ Meat has been sued for malpractice. He announced it on his blog.

The information came to him like this:

Nothing good ever comes via certified mail, and it was with a sense of dread that I took the envelope, noting the return address from a law firm. I opened it and was hit in the gut by the block type at the top reading “NOTICE OF INTENT TO SUE,” with my name underneath.

While Shadowfax remains a pseudonym, he is ever mindful of the story of Flea, who had blogged his own malpractice trial under a pseudonym. When plaintiff’s counsel found out, and confronted him on the witness stand, it made front page news.

You might guess that the doc is not happy. He writes:

So I’m not scared. I am pissed. Not at the plaintiff. Just in general, that I am going to have to do the whole deposition-discovery-negotiations-trial thing. I didn’t want to go through this, and it’s going to be painful and annoying. I’m buoyed by the belief that my care was not deficient, and that the case is defensible. In fact, I look forward to making my case that the care was superior

Will Shadowfax blog details of the suit? Read on at his blog to find out…but do it quick since he has threatened to delete it.

Are doctors ratcheting up the protectionism for those that commit medical malpractice, according to an article in USA Today. (Medical malpractice battle gets personal.) The article ledes with a story of a nurse who was fired from her job simply because her husband works at a firm that does medical malpractice litigation. [Update, the story is from 2004, not yesterday as originally posted, but the tension between the two camps of physicians described below still exists.)

Apparently, some aren’t too thrilled that there are lawyers out there trying to hold medical personnel accountable if they commit negligence. It was almost a year ago that I wrote a piece about the White Coat of Silence, regarding a Massachusetts General Hospital and Harvard Medical School study that found 46% of doctors admitted they knew of a serious medical error that had been made but did not tell authorities about it.

According to the USA Today story:

Some doctors are refusing medical treatment to lawyers, their families and their employees except in emergencies, and the doctors are urging the American Medical Association to endorse that view. Professional medical societies are trying to silence their peers by discouraging doctors from testifying as expert witnesses on behalf of plaintiffs. And a New Jersey doctor who supported malpractice legislation that his colleagues opposed was ousted from his hospital post.

This is, of course, appalling conduct. And continuing to discourage investigations and bury the mistakes will ultimately lead to a medical system that is worse off.

Thankfully, this conduct is not universal, as others have taken a vastly different tactic: They apologize for mistakes. And the result of those apologies is that lawsuits have dropped. (See: How to Put Medical Malpractice Attorneys Out of Business on 5/22/08 and More Doctors Encouraged To Say “I’m Sorry” on 4/11/07).

How effective are apologies? According to a May 18, 2008 story in the New York Times (Doctors Say ‘I’m Sorry’ Before ‘See You in Court’):

At the University of Illinois, for example, of 37 cases where the hospital acknowledged a preventable error and apologized, only one patient filed suit. At the University of Michigan Health System, existing claims and lawsuits dropped from 262 in August 2001 to 83 in August 2007, and legal costs fell by two-thirds.

One particularly clueless surgeon quoted in today’s paper, Chris Hawk of Charleston, S.C., doesn’t seem to understand that basic human concept of the apology. Instead, he attacks the lawyers, as if this will stop malpractice from occurring. According to the article:

In South Carolina, Hawk says he first urged fellow doctors to refuse non-emergency treatment to lawyers, their families and employees in a speech at the state medical association’s convention in March.

With that attitude, one has to wonder what Hawk and his ilk would tell a patient if they realized that a medical problem was caused by another doctor. Would Hawk be able to fulfill his ethical obligation to be honest with his patient under those circumstances? Is this the type of physician that a patient would want to have? He might do well if he first tried to understand why patients call lawyers to begin with.

And so the internal battle that the physicians are having continues to rage on. On one side are the protectionists who seek government intervention to afford various immunities for acts of negligence. Personal responsibility is, apparently, not their mantra.

And on the other side are the far savvier, and human, physicians that have come to realize that cover-ups create a whole host of problems. These range from inaccurate medical records and therefore improper treatment, to protecting bad doctors despite the risks to future patients, to resentment by patients who feel they have not had the level of candor that they deserve. And they have come to realize the simple human gratefulness of a distressed patient that has simply been told the truth.

(hat tip to Carolyn Elefant)

Today’s New York Times has an editorial on doctors saying they are sorry for mistakes, and the dramatic decrease in litigation that results. This philosophy of apology is anathema to many doctors, who according to a study, still cling to the White Coat of Silence in covering up their mistakes and those of their colleagues.

A couple dramatic examples from the Times editorial, which follows a May 18th story on the subject:

At the University of Illinois, for example, of 37 cases where the hospital acknowledged a preventable error and apologized, only one patient filed suit. At the University of Michigan Health System, existing claims and lawsuits dropped from 262 in August 2001 to 83 in August 2007, and legal costs fell by two-thirds.

This drop in claims comes as no shock to me, since one of the primary reasons people make that first call to a lawyer is anger at being mistreated or being unable to get information. That doesn’t mean they have a viable lawsuit of course — any decent medical malpractice attorney will decline 95% or more of the inquiries — but it is often the reason for the call.

I wrote about this subject a year ago (see: More Doctors Encouraged To Say “I’m Sorry”) and said:

I’ve always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

So empirical evidence is now supporting the anecdotal evidence that I have acquired over the past 20+ years of medical malpractice litigation.

Just as in politics, and so many other things, the cover-up is often much worse than the initial mistake. Because while the accident may be negligence, the cover-up is an intentional act of deception. And when that deception comes from someone that you have trusted your life with, the sense of betrayal is profound. There are few emotions in this world that can compete with the sense of betrayal.

So if doctors and hospitals want to put me out of business, then say you’re sorry and act like the decent people you likely are when things are going right. But if you want to keep me practicing medical malpractice litigation, then keep turning your backs on the patients when things go wrong, and let them make that upset and angry phone call to me.