Guilty of negligence?BMJ 1994; 309 doi: https://doi.org/10.1136/bmj.309.6961.1094 (Published 22 October 1994) Cite this as: BMJ 1994;309:1094
- H Lavender
My husband and I grew up and qualified in England. In 1974 he was invited to join a family practice residency at the University of Western Ontario in Canada. We had planned to stay abroad for two years but we stayed for 15. We worked as family doctors in Canada, New England, and Texas. Many experiences we must have shared with doctors the world over, but some were unique to America. Here is the aftermath of one of them.
The jury are locked in the juryroom. We are waiting for their verdict after five and a half years of anguish and anxiety.…
She was a thin, pale woman, asthmatic, menopausal, mildly depressed, and angry. She had come to hate her husband. He aggravated her so much. She was making plans to leave him and return to Toronto, but she did not want to leave her nice home in Texas.
That day they had another argument. She said that she did not want him around any more. She grabbed her handbag and took the car. The car and she were found along a dirt road not far from home. A map was left open at the wrong place. Had she got lost? The gear was in the drive position and the petrol tank was empty. Was this the last straw, which made her take the diazepam, prescribed by another doctor, and the amitriptyline, which, with her asthma drugs, she always kept in her handbag?
I shared the shock, anguish, and guilt with her husband. Later came the dreaded certified envelopes with threats to sue. “The dosage of amitriptyline was not adequate.” But she was taking large doses of theophylline, she was not severely depressed, and she said that the dose was sufficient.
“Why didn't you involve the family?” I would have breached confidentiality and destroyed her trust if I had spoken to her husband. The family never contacted me.
“The prescription was for far too long a period.” How do you manage a patient when she hates doctors and will not keep follow up visits?
“Why wasn't an electrocardiogram ordered before prescribing tricyclics?” For years she would not even permit her blood pressure to be taken.
Over the years there were interrogations, comments from expert witnesses, depositions, and transatlantic wrangling. The trial kept being postponed. At last I was on the plane, then with my attorney and his team in downtown Houston. He talked and questioned me for four and a half hours.
* “The prosecuting lawyer tried to show defects in my knowledge, judgment, character, and credibility.”
The next day I found the courthouse and found every bench in the courtroom was full. Who were these people? They had been called to be jurors. The selection took all morning.
“Who thinks medical malpractice trials are wrong?” Several admitted they felt malpractice settlements were too high and so they were excused. “Who resents doctors?” “Who has been a patient of the accused?” Twelve jurors were finally selected.
The prosecuting attorney spoke in a folksy way to the jurors and told them about all the bad things I had done.
Then came the evidence. The police officer came on. He was being paid by the prosecution. The death scene had been videotaped. I recognised my patient, but she was all bloated and had been attacked by fire ants.
The next day my name was called and I climbed into the witness box. My mouth was dry at first. The kindly bailiff noticed and brought me some water. Soon the questions consumed my attention and the hours flew. It felt like playing a game of chess. The plaintiff's lawyer was trying to checkmate me.
The afternoon brought a psychiatrist, and expert witness for the prosecution. The prosecuting attorney asked the psychiatrist to show the jury how negligent I had been in the care of a depressed patient and how my negligence had caused her tragic death. Then it was my lawyer's turn to cross examine. How could the psychiatrist make these broad statements? How did these statements apply to this particular patient? He made the psychiatrist contradict himself and then he pointed out the contradictions to the jury.
The next day the dead woman's son came to the witness box; her husband had died of cancer. Then came the family doctor, an expert witness for the defence. He was charismatic and even made us laugh.
The trial was ending its third day and again I was called to the witness stand. My lawyer asked me to justify myself and refute the prosecution's arguments. The prosecuting lawyer tried to show defects in my knowledge, judgment, character, and credibility. I struggled to justify myself, but felt worn down. The questioning lasted for two hours.
Does this improve patient care? Isn't there a better way? I wanted to talk to the family and say how sorry I was that this has happened, and how I liked their mother and how devastated I was by her death. I would have wanted to go over with my colleagues each decision and how I could have made a better decision.
This is a contingency case. The son and daughter want $200 000 (pounds sterling 133 000) each. They have paid their lawyer nothing. My insurance company has had to pay out $33 000 (pounds sterling 22 000) to defend me.
There is a knock on the door. The jury are ready with their verdict. The judge nods and signs the papers. The court clerk reads “Not guilty.”
I feel a sense of quiet relief. The son and I shake hands. My attorney is delighted. The chief juror comes with a message from himself and all the jurors. They are sorry that I was brought all the way from England for the trial.
Was five and half years of anguish and anxiety and vast expense useful? We need to find a better way.