The downside of tort reform
Negligence and malpractice can injure patients, but so can juries, as this specialist discovered.
I'm a medical oncologist who was one of the original forces behind the tort reform movement in Nevada. Overall, I'm happy with the changes in our state, which I believe were necessary to keep good physicians practicing here. Nevertheless, one particular case showed me how the system can backfire.
In 2002, a delightful woman I'll call Mary was referred to me. Two years earlier, she had developed a skin lesion on her pubic area, which her family physician removed and a pathologist diagnosed as a dysplastic nevus. The margins were cleared, and Mary went on her way.
In 2004, the lesion recurred and her FP again removed it. This time it was malignant. Mary was then referred to a general surgeon for a wide excision and primary closure. Because of the lesion's proximity to lymphatics, I requested a lymphoscintigram and a sentinel lymph node biopsy. The surgery was completed and, much to my surprise and chagrin, the lymph node biopsy was positive for melanoma.
Mary was an active person who needed to be fully ambulatory to keep her job and help care for her grandchildren. With this in mind, we discussed the possibility of an inguinal lymph node dissection. But because the surgical complications would interfere with her ability to make a living, she declined.
After a negative staging workup, we discussed her other options: observation, clinical trial, or interferon therapy. Mary wanted to treat her disease, so she passed on watchful waiting. Likewise, participating in a clinical trial was out of the question, because she'd have to leave town to be treated. That left interferon therapy, which she agreed to.
Earlier evidence of malignancy
In the interim, a second pathologist reviewed Mary's original report from 2002 and found the results were consistent with a diagnosis of malignant melanoma, not a dysplastic nevus. Shortly thereafter, the original pathologist admitted that he'd misread the slides.
Then came the interferon therapy, complete with the expected side effects—fever, chills, sweats, fatigue, and depression. Mary's health declined to the point where she had to take a leave from work. She also developed an unexpected side effect: marked liver function abnormalities, which led to profound weight loss. The interferon was stopped, but the abnormalities persisted. A liver biopsy was performed, and Mary was found to have an autoimmune hepatitis, unmasked but not caused by the interferon. Plans for further therapy were abandoned and, in time, her liver problems resolved.
As I'd expected, Mary sued the pathologist who had misread the original biopsy. Soon after, one of her attorneys asked me to serve as an expert witness in the case. As her treating physician, I felt a moral obligation to support Mary's claim. Her lawyer said she was asking only for damages to help provide for her grandchildren—which ultimately became more important when her husband died unexpectedly from a post-surgical pulmonary embolus.
It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.
Juries can be fickle and misinformed
Affidavits were submitted and depositions taken, including mine. With the comments and bare facts now available, the case went to trial. While this easily could have been a $1 million-plus case, tort reform in Nevada meant Mary couldn't receive more than $350,000 in noneconomic damages (pain and suffering) or any collateral source payments. The value of Mary's medical costs, which exceeded $100,000 and were covered by insurance, wouldn't be included in any award.
The trial lasted six days. I was on the witness stand for two hours for direct and cross examination. I described the statistical decrease in Mary's five-year survival, as well as all treatment variations between the different stages of melanoma. I also stated that I thought the pathologist's admission of his mistake was "honorable."
As I'd expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn't awarded any damages. One of her attorneys later told me that the jury wanted to pin an award on the pathologist's professional corporation, but it hadn't been named in the suit. The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state's tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.
The trial judge was incensed by the verdict, because the jury didn't follow the legal standard that should have been applied in the case. I was later informed that the defense attorneys planned to go after Mary for court costs, something that the judge vowed he'd never let happen.
Today, Mary is a widowed grandmother, caring for her grandchildren with few resources—injured, admittedly, by a physician's error. She's been off of all therapies since the interferon, which proved successful. But if her melanoma recurs, it will likely be fatal.
When I helped spearhead the tort reform movement in Nevada, I didn't foresee the unintended consequences of innocent, truly injured individuals not receiving their rightful awards due to jurors' misguided emotions. Had I been aware of that possibility, what would I have done?
© 2008 Advanstar Communications Inc.