by Atul Gawande
The dermatologist sat straight-backed and still in the witness chair as Lang fired questions at him. He tried not to get flustered. A friend of mine, a pediatric plastic surgeon who had had a malpractice suit go to trial, told me the instructions that his lawyer had given him for his court appearances: Don't wear anything flashy or expensive. Don't smile or joke or frown. Don't appear angry or uncomfortable, but don't appear overconfident or dismissive, either. How, then, are you supposed to look? Reed seemed to have settled on simply looking blank. He parsed every question for traps, but the strenuous effort to avoid mistakes only made him seem anxious and defensive.
"Wouldn't you agree," Lang asked, "that [melanoma] is very curable if it's excised before it has a chance to spread?" If a patient had asked this question, Reed would readily have said yes. But, with Lang asking, he paused, unsure.
"It's hypothetical," Reed said.
Lang was delighted with this sort of answer. Reed's biggest problem, though, was that he hadn't kept notes on his mid-September phone conversation with Barbara Stanley. He could produce no corroboration for his version of events. And, as Lang often reminded the jury, plaintiffs aren't required to prove beyond a reasonable doubt that the defendant has committed malpractice. Lang needed ten of twelve jurors to think only that it was more likely than not.
"You documented a telephone conversation that you had with Barbara Stanley on August 31, isn't that correct?" Lang asked.
"That is correct."
"Your assistant documented a discussion that you had with Barbara Stanley on August 1, right?"
"That is correct."
"You documented a telephone call with Malden Hospital, correct?"
"That is correct."
"You documented a telephone conversation on September 6, when you gave Barbara Stanley a prescription for an infection, correct?"
"That is correct."
"So you made efforts and you had a habit of documenting patient interactions and telephone conversations, right?"
"That is correct."
Lang began to draw the threads together. "Exactly what Barbara Stanley needed, according to you, [was] a two-centimeter excision, right?"
"Which is what I instructed Ms. Stanley to do."
"Yet you did not tell Dr. Hochman"--Stanley's internist--"that she needed a two-centimeter excision, right?"
"That is correct."
"But you want this jury to believe you told Barbara Stanley?"
"I want this jury to believe the truth--which is that I told Barbara Stanley she needed a two-centimeter excision."
Lang raised his voice. "You should have told Barbara Stanley that, isn't that correct?" He all but called Reed a perjurer.
"I did tell Barbara Stanley, repeatedly!" Reed protested. "But she refused." Reed tried to keep his exasperation in check, while Lang did all he could to discredit him.
"In your entire career, Doctor, how many articles have you published in the literature?" Lang asked at another point.
"Three," Reed said.
Lang lifted his eyebrows and stood with his mouth agape for two beats. "In twenty years' time, you've published three articles?"
"Doctor, you do a lot of cosmetic medicine, isn't that true?" he later asked.
I could not tell whether the jury was buying Lang's insinuations. His examination made my skin crawl. I could picture myself on the stand being made to defend any number of cases in which things didn't turn out well and I hadn't got every last discussion down on paper. Lang was sixty years old, bald, short, and loud. He paced constantly and rolled his eyes at Reed's protestations. He showed no deference and little courtesy. He was almost a stereotype of a malpractice lawyer--except in one respect, and that was the reason I'd come to watch this particular trial: Barry Lang used to be a doctor.
For twenty-three years, he had a successful practice as an orthopedic surgeon, with particular expertise in pediatric orthopedics. He'd even served as an expert witness on behalf of other surgeons. Then, in a turnabout, he went to law school, gave up his medical practice, and embarked on a new career suing doctors. Watching him, I wondered, had he come to a different understanding of doctors' accountability than the rest of us?
I WENT TO meet Lang at his office in downtown Boston, on the tenth floor of One State Street, in the heart of the financial district. He welcomed me warmly, and I found that we spoke more as fellow doctors than as potential adversaries. I asked why he had quit medicine to become a malpractice attorney. Was it for the money?
He laughed at the idea. Going into law "was a money disaster," he said. Starting out, he had expected at least some rewards. "I figured I'd get some cases, and if they were good the doctors would settle them quickly and get them out of the way. But no. I was incredibly naive. No one ever settles before the actual court date. It doesn't matter how strong your evidence is. They always think they're in the right. Things can also change over time. And, given the choice of paying now or paying later, which would you rather do?"
He entered law practice, he said, because he thought he'd be good at it, because he thought he could help people, and because, after twenty-three years in medicine, he was burning out. "It used to be 'Two hip replacements today--yay!'" he recalled. "Then it became 'Two hip replacements today--ugh.'"
When I spoke to his wife, Janet, she said that his decision to change careers shocked her. From the day she met him, when they were undergraduates at Syracuse University, in New York, he'd never wanted to be anything other than a doctor. After medical school in Syracuse and an orthopedics residency at Temple University in Philadelphia, he had built a busy orthopedics practice in New Bedford, Massachusetts, and led a fulfilling and varied life. Even when he enrolled in night classes at Southern New England School of Law, a few blocks from his office, she didn't think anything of it. He was, as she put it, "forever going to school." One year, he took English literature classes at a local college. Another year, he took classes in Judaism. He took pilot lessons and before long was entering airplane aerobatics competitions. Law school, too, began as another pastime--"It was just for kicks," he said.
After he finished, though, he took the bar exam and got his license. He got certified as a public defender and took occasional cases defending indigent clients. He was fifty years old. He'd been in orthopedics practice long enough to have saved a lot of money, and law began to seem much more interesting than medicine. In July 1997 he handed his practice over to his startled partners, "and that was the end of it," he said.
He figured that the one thing he could offer was his medical expertise, and he tried to start his legal practice by defending physicians. But because he had no experience, the major law firms that dealt with malpractice defense wouldn't take him, and the malpractice insurers in the state wouldn't send him cases. So he rented a small office and set up shop as a malpractice attorney for patients. He sunk several thousand dollars a month into ads on television and in the phone book, dubbing himself "the Law Doctor." Then the phone calls came. Five years into his new career, his cases finally began going to trial. This was his eighth year as a malpractice attorney, and he had won settlements in at least thirty cases. Eight others had gone to trial, and he had won most of them, too. Two weeks before the Reed trial, he won a $400,000 jury award for a woman whose main bile duct was injured during gallbladder surgery and required several reconstructive operations. (Lang got more than a third of that award. Under Massachusetts state law, attorneys get up to 40 percent of the first $150,000, 33.3 percent of the next $150,000, 30 percent of the next $200,000, and 25 percent of anything over half a million.) Lang has at least sixty cases pending. If he had any money troubles, they are over now.
Lang said that he receives ten to twelve calls a day, mostly from patients or their families, with some referrals from lawyers who don't do malpractice. He turns most of them away. He wants a good case, and a good case has to have two things, he said. "Number one, you need the doctor to be negligent. Number two, you need the doctor to have caused damage." Ma
ny of the cases fail on both counts. "I had a call from one guy. He says, 'I was waiting in the emergency room for four hours. People were taken ahead of me, and I was really sick.' I say, 'Well, what happened as a result of that?' 'Nothing, but I shouldn't have to wait for four hours.' Well, that's ridiculous."
Some callers have received negligent care but suffered little harm. In a typical scenario, a woman sees her doctor about a lump in her breast and is told not to worry about it. Still concerned, she sees another doctor, gets a biopsy, and learns that she has cancer. "So she calls me up, and she wants to sue the first doctor," Lang said. "Well, the first doctor was negligent. But what are the damages?" She got a timely diagnosis and treatment. "The damages are nothing."
I asked him how great the prospective damages had to be to make the effort worth his while. "It's a gut thing," he said. His expenses on a case are typically forty to fifty thousand dollars. So he would almost never take, say, a dental case. "Is a jury going to give me fifty thousand dollars for the loss of a tooth? The answer is no." The bigger the damages, the better. As another attorney told me, "I'm looking for a phone number"--damages worth seven figures.
Another consideration is how the plaintiff will come across to jurors. Someone may have a great case on paper, but Lang listens with a jury in mind. Is this person articulate enough? Will he or she seem unreasonable or strange to others? Indeed, a number of malpractice attorneys I spoke to confirmed that the nature of the plaintiff, not just of the injury, was a key factor in the awarding of damages. Vernon Glenn, a highly successful trial attorney from Charleston, South Carolina, told me, "The ideal client is someone who matches the social, political, and cultural template of where you are." He told me about a case he had in Lexington County, South Carolina--a socially conservative, devoutly Christian county that went 72 percent for George W. Bush in the 2004 election and produces juries unsympathetic to malpractice lawyers. But his plaintiff was a white, Christian female in her thirties with three young children who had lost her husband--a hardworking, thirty-nine-year-old truck mechanic who loved NASCAR, had voted Republican for the past twenty years, and had built the addition to their country home himself--to a medical error. During routine gallbladder surgery, doctors caused a bowel injury that they failed to detect (his wife called several times about his worsening pain after he was discharged home from the hospital, but she was told to just give him more pain medication) until he collapsed and died. The woman was articulate and attractive but not so good-looking as to put off a jury. She wasn't angry or vengeful but was visibly grieving and in need of help. If the family hadn't spoken English, if the husband had a long history of mental illness or alcoholism or cigarette smoking, if they'd been involved in previous lawsuits or had a criminal record, Glenn might not have taken the case. As it was, "she was darn close to the perfect client," he said. The day before trial, the defendants settled for $2.4 million.
Out of sixty callers a week, Barry Lang might take the next step with two and start reviewing the medical records for hard evidence of negligent care. Many law firms have a nurse or a nurse practitioner on staff to do the initial review. But Lang himself gathers all the records, arranges them chronologically, and goes through them page by page.
There is a legal definition of negligence ("when a doctor has breached his or her duty of care"), but I wanted to know his practical definition of the term. Lang said that if he finds an error that resulted in harm and the doctor could have avoided it, then, as far as he is concerned, the doctor was negligent.
To most doctors, this is an alarming definition. Given the difficulty of many cases--unclear diagnoses, delicate operations--we all cause serious complications that might have been avoided. I told Lang about a few patients of mine: a man with severe bleeding after laparoscopic liver surgery, a patient who was left permanently hoarse after thyroid surgery, a woman whose breast cancer I failed to diagnose for months. All were difficult cases. But in looking back on them, I also now see ways in which I could have done better. Would he sue me? If he could show a jury how I might have avoided harm and if the damages were substantial, "I would sue you in a flash," he said. But what if I have a good record among surgeons, with generally excellent outcomes and conscientious care? That wouldn't matter, he said. The only thing that matters is what I did in the case in question. It's like driving a car, he explained--I could have a perfect driving record, but if one day I run a red light and hit a child, then I am negligent, he said.
Lang insists that he is not on a crusade against doctors. He faced three malpractice lawsuits himself when he was a surgeon. One involved an arthroscopy that he performed on a young woman with torn cartilage in her knee from a sports injury. Several years later, he said, she sued because she developed arthritis in the knee--a known, often unavoidable outcome. Against his wishes, the insurer settled with the patient for what Lang called "nuisance money"--five thousand dollars or so--because it was cheaper than fighting the suit in court.
In another case, a manual laborer with a wrist injury that caused numbness in three fingers sued because Lang's attempted repair made the numbness worse and left him unable to work. Lang said that he'd warned the patient that this was a high-risk surgery. When he got in, he found the key nerves encased in a thick scar. Freeing them was exceedingly difficult--"like trying to peel Scotch tape off wallpaper," he said--and some nerve fibers were unavoidably pulled off. But the insurer wasn't certain that the argument would prevail at trial and settled for $300,000. Both cases seemed unmerited, and Lang found them as exasperating as any other doctor would.
The third case, however, was the result of a clear error, and although it took place two decades ago, it still bothers him. "I could have done more," he told me. The patient was a man in his sixties whom Lang had scheduled for a knee replacement. A few days before the surgery, the man came to Lang's office complaining of pain in his calf. Lang considered the possibility of a deep-vein thrombosis--a blood clot in the leg--but dismissed it as unlikely and ordered no further testing. The patient did have a D.V.T., though, and when the clot dislodged two days later, it traveled to his lungs and killed him. Lang's insurer settled the case for about $400,000.
"If I had been on the plaintiff's side, would I have taken that case against me?" he said. "Yes."
Being sued was "devastating," Lang recalled. "It's an awful feeling. No physician purposely harms his patient." Yet he insists that, even at the time, he was philosophical about the cases. "Being sued, although it sort of sucks the bottom out of you, you have to understand that it's also the cost of doing business. I mean, everybody at some time in his life is negligent, whether he's a physician, an auto mechanic, or an accountant. Negligence occurs, and that's why you have insurance. If you leave the oven on at home and your house catches fire, you're negligent. It doesn't mean you're a criminal." In his view, the public has a reasonable expectation: if a physician causes someone serious harm from substandard care or an outright mistake, he or she should be held accountable for the consequences.
The three cases that Lang faced as a doctor seemed to me to epitomize the malpractice debate. Two of the three lawsuits against him appeared unfounded, and, whatever Lang says now, the cost to our system in money and confidence is nothing to dismiss. Yet one of them concerned a genuine error that cost a man his life. In such cases, don't doctors owe something to patients and their families?
BILL FRANKLIN IS a physician I know who has practiced at Massachusetts General Hospital, in Boston, for more than four decades. He is an expert in the treatment of severe, life-threatening allergies. He is also a father. Years ago, his son Peter, who was then a second-year student at Boston University School of Medicine, called to say that he was feeling sick. He had sweats and a cough and felt exhausted. Franklin had him come to his office and looked him over. He didn't find any obvious explanation for his son's symptoms, so he had him get a chest X-ray. Later that day, the radiologist called. "We've got big trouble," he told Franklin. The X-ray showed a tumor filling Peter's
chest, compressing his lungs from the middle and pushing outward. It was among the largest the radiologist had encountered.
After he had pulled himself together, Franklin called Peter at home to give him and his young wife the frightening news. They had two children and a small house, with a kitchen that they were in the midst of renovating. Their lives came to a halt. Peter was admitted to the hospital and a biopsy showed that he had Hodgkin's lymphoma. He was put on high-dose radiation therapy, with a beam widened to encompass his chest and neck. Still, Peter was determined to return to school. He scheduled his radiation sessions around his coursework, even after they paralyzed his left diaphragm and damaged his left lung, leaving him unable to breathe normally.
The tumor proved too large and extensive for a radiation cure. Portions of it continued to grow, and it spread to two lymph nodes in Peter's lower abdomen. The doctors told his father that it was one of the worst cases they had seen. Peter was going to need several months of chemotherapy. It would make him sick and leave him infertile, but, they said, it should work.
Franklin couldn't understand how the tumor had got so large under everyone's eyes. Thinking back on Peter's care over the years, he remembered that four years earlier Peter's wisdom teeth had been removed. The surgery had been performed under general anesthesia, with an overnight stay at MGH, and a chest X-ray would have been taken. Franklin had one of the radiologists pull the old X-ray and take a second look. The mass was there, the radiologist told him. What's more, the original radiologist who had reviewed Peter's chest X-ray had seen it. "Further evaluation of this is recommended," the four-year-old report said. But the Franklins had never been told. The oral surgeon and the surgical resident had both written in Peter's chart that the X-ray was normal.