Ever wonder how those urban legends get started about crazy lawsuits that somehow find their way into the hands of tort “reformers” who repeat them as true? Read on, my friends.

On a blog called ER Stories, an anonymous individual who calls himself an emergency room doctor in the northeast sets forth this set of facts, but without a single link or method of authentication:

A woman comes into the ER with a claim of a fish bone stuck in her throat, and has an x-ray. The radiologist says its an osteophyte, a small bit of bone. So she gets scoped two days later and, lo and behold, a fish bone comes out, not an osteophyte.

Now the good part, our anonymous doctor continues the story with the good stuff:

A few weeks later, all three doctors get the dreaded “, esq” singed letter – they are being sued for missing the bone. Now, here is the ridiculous part. Her suffering? Severe pain? Infections? Scarring? Worse? No, SHE SUED BECAUSE SHE COULD NO LONGER PERFORM ORAL SEX! Yes, that is right.

The case subsequently settles, allegedly, for $60,000 due to the misdiagnosis.

And so the story spreads. Kevin, M.D., aggregator extraordinaire for medical blogs, picks up the posting and spreads it far and wide with this headline and one-liner:

Unable to perform oral sex, sue the doctor

Read it to believe it.

So Kevin has bought the story. And at least two other highly-rated bloggers have also linked:

• Patient sues as she can no longer perform oral sex..and wins
• Woman unable to perform oral sex sues the doctor

While each of these bloggers no doubt linked to it in good faith, it must be noted that the original story has no case name, no documents or docket number, nor even a state where this allegedly happened.

The original author responded to the challenge of the unsourced material in the comments of Kevin’s blog, in order to “authenticate” the story, with this whopper:

Actually I posted this story. I heard it first hand from a physician (who works with me) who was a partner with the doctor that was sued. He knew the details as they unfolded. Unless he was lying through his teeth to me, it is how it happened.

So the story hits the Internet third-hand:

1. The defendant
2. Defendant’s partner
3. Anonymous Blogger

And that is how an urban legend is born. Not to mention a really good fish story.

New York’s medical malpractice insurance situation has been in the news quite a bit, due to a 14% increase in premiums. (See, Why New York Medical Malpractice Insurance Jumped 14%) Of course, even before that there had been no shortage of complaints that doctors would leave New York out of fears of high malpractice premiums. Every year the doctors go to Albany to lobby for tort “reform” and every year consumer groups rebut the stories they bring with them.

So here’s the latest empirical evidence, as opposed to anecdotes used for propaganda. A recent exit survey of medical residents that have completed their training, from the SUNY Albany School of Public Health, says the the number of doctors leaving New York due to malpractice concerns was just 1.8%:

Forty-eight percent (48%) of the graduates with confirmed practice plans were staying in New York to begin practice, although there were substantial differences by specialty. The in- state retention rate has been relatively flat over the last four years of the survey. For graduates in 2007 who were subspecializing, 53% were planning to do so in New York compared to 52% in 2005.

• When respondents who were planning to practice outside of New York were asked why they were leaving, the most common reasons were proximity to family (26%) and inadequate salary (21%). Thirteen percent (13%) of respondents indicated that they never intended to practice in New York.
• Less than 2% of respondents reported that the principal reason for them practicing outside of New York was the cost of malpractice insurance (1.8%) or the lack of job opportunities for spouse/partner in New York (1.4%).

The number of doctors in New York is the highest that it has been in a decade.

hat tip: PopTort

There are several different reasons that patients (or next of kin) call lawyers regarding potential medical malpractice. Understanding the motivation for the call is important in evaluating the merits of a case during the vetting process.

Two of those reasons are on display now at NY Emergency Medicine, in an extraordinary post by Dr. Brian Fletcher, a fourth year emergency medicine resident recounting a story from his internship. It involves a horrifying code that occurred while he was doing a bedside procedure on a 70 year old man who had undergone surgery some days before. Read that post and come back. It’s very much worth a few minutes of your time.

OK, welcome back. Two possible reasons why a medical malpractice attorney might be consulted popped right out at me during the story, and I’ve added two more to a short list below.

1. An unexpected result and a betrayal of trust: We don’t know from the story about what transpired after the code with respect to the patient’s family. It is strictly a post through the eyes of the young doctor that went through it. But if a family isn’t leveled with, if they think information is being held back from them, then a family may feel a betrayal of trust. It’s pretty darn rare to get a call from someone that trusts their doctor, so something must have happened not only with respect to the medicine but with respect to the personal relationship between doctor and patient. (This is one reason doctors are urged to apologize for errors.) One of the most important questions any lawyer asks a potential client regarding the prospect of litigation is, “What will the other side say is the reason this happened?” This will often lead to clues as to whether the matter is worth the time and money to investigate further by paying for the medical records.

2. The hospital rumor mill. A substantial number of calls are generated by nurses, technicians, doctors or others whispering into the ears of the family about what they heard and urging that a lawyer be consulted. As can be seen from Dr. Fletcher’s story, a lot of people with no first hand knowledge like to talk. It’s old fashioned gossip that often should be appropriately discounted. The important question here is trying to find out what the storyteller really knows.

3. Money, money, money. This is not part of Dr. Fletcher’s story, but it tacked on here because I’m rounding up the reasons for the initial inquiry to the lawyer. Money is an easy motivation to discover because, during the initial consult before you even have a chance to evaluate the case, the person asks, “What’s the case worth?” Anyone with a lick of common sense knows that all parts of the story must then be appropriately discounted, and if the client’s testimony is essential to proving the case (as opposed to being documented on medical records) it is likely a case not worth taking.

4. Outrage. This is usually motivated by a desire to make sure that other patients don’t undergo the same fate. The Dennis Quaid case of his twins getting overdosed with heparin is a classic example. Nobody expects that the Quaids need the money from any suit. They have a point to make. And they are not alone. Many, many people, struck by tragedy from the loss of a close family member or injury to a child, will make the call based on nothing less than raw emotion.

Since investigating and litigating potential medical malpractice cases is long, expensive and difficult, any lawyer that is doing their job properly is declining inquiries at a rate of 95-98%. But that initial call is how it all starts.

Other posts on the subject:

• Medical Malpractice – Vetting the Case
• Medical Malpractice Economics
• Medical Malpractice – A Primer
• No, Your Medical Malpractice Case Will NOT Settle Fast

Addendum 3/19/08 — From TortsProf Sheila B. Scheuerman: “Sorry Works!” – Apology to Prevent Med Mal Claims

Addendum 3/21/08: Why we’ve never been sued for medical malpractice (Ralph Caldroney @ Medical Economics via Kevin, M.D.)