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: aman 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--andsome 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
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: aman 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--andsome 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
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