My Client Will Die

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It is 1:30 in the morning, the night before I mediate a major medical malpractice case. I have spent dozens of hours in the last few weeks preparing. I tend to treat a big mediation the way I treat trial — I over-prepare.

Preparation is my security blanket. I pride myself in knowing the case better than the other attorney. I spend hours crafting an opening which, if the mediation is unsuccessful, will lay the foundation for my later opening statement and closing argument in trial.

I spend hours crafting a PowerPoint, and then mercilessly pare it down the day before mediation. It isn’t time wasted — every minute spent reviewing testimony, editing video clips of stupid shit the defendant said, and anticipating defense arguments helps me to be as prepared as I can for my client.

I am as prepared as I can be for this mediation. For my client, I hope that I am successful. But ultimately, nothing I do, no outcome tomorrow, will change this fact:

My client will die.

That is an incredibly difficult sentence to write. As a medical malpractice lawyer it is a situation that I have faced and will face again. Thankfully, not in every case. The emotional toll is too great.

As the mediation has approached, I’ve slept less and less. I toss and turn, unable to stop the wheels spinning in my head. At times, all too infrequently, the spinning is that of a fine old vintage auto, alternately accelerating and idling, changing gears and eating up the miles, chewing on a problem and arriving at the destination. At other times it is more like a lawn mower that was simply shoved into a corner of the garage at the end of the summer and pulled out the next spring. The gas is stale and the spark plug hasn’t been changed since … well, never.

In the dark my mind sputters, shudders, stalls, and smokes and ultimately ends up going back and forth over the same patch of ground, again and again, arriving at no destination. And all too often my mind is spinning like a piece of machinery in an old cartoon. It runs faster and faster and part of me watches, knowing that, at some point during the long night, it’s going to explode with a clang and gears and springs will fly everywhere. And I will emerge out the other side with my face blackened, my eyes dazed and little birdies spinning around my head.

And all because, no matter what I do, my client will die.

The cancer that is there will take him. Eventually another surgery will no longer be an option. The surgeon who has worked so valiantly, first to try to cure and then to simply prolong his life, will be unable to open him up again. After every operation the tumors recur. They pick up steam, they mutate faster, they grow like the evil beasts that they are. I have talked to those working so hard for this man. I know that eventually these tumors will simple grow so fast and so large that they will fill his abdomen, squeezing his organs, constricting them, until those vital organs fail, one by one and he dies.

What keeps me up at night is the senselessness.

Senseless in that this shouldn’t have happened. As cancers go, my client was afflicted with one that had a high probability of survival. This particular type of tumor is fairly benign in its early stages. It doesn’t tend to metastasize and it doesn’t tend to invade organs. Rather, it grows and pushes them aside, filling up any available space. It is almost always detected when it is grapefruit sized and smaller, because that pushing against organs has led to symptoms that lead to discovery of the tumor.

But in this case, despite more than 2 years of increasing complaints and problems, my client’s doctor didn’t put it together. He didn’t examine my clients increasingly growing abdomen. Instead the doctor opted to assume that each symptom presented was caused by a different benign condition. My client needed him to be a diagnostician. He needed him to be Dr. House. What he got was Dr. Doolittle. As a result, the grapefruit became a cantaloupe. The cantaloupe became a chicken. The chicken became a turkey and the turkey became an ostrich. The tumor grew to an incomprehensible size before it was discovered. And still, there was no Dr. House. Dr. Doolittle diagnosed something else. Thankfully, the test ordered led to another that discovered the tumor.

Senseless in that, to everyone except this doctor and his attorneys, the facts lead to only one conclusion. You screwed up. Man up. Admit you made a catastrophic mistake. Pay up and let my client try to enjoy the remaining time he has until the cancer literally squeeze the life out f him. Pay up and let him travel or spend time with his grandchildren or experience something he’s always wanted to do. Pay up and let him enjoy his remaining time rather than waste even one of his dwindling days in mediation or in trial.

Instead, tomorrow we go to mediation. The dance that I am all too familiar with will be danced. The mediator will exhort everyone to compromise and exchange the uncertainty of trial for the certainty of a settlement. I will give my carefully prepared opening. The defendants counsel will tell my client that he is sorry for what has happened to him, but the good doctor doesn’t believe he did anything wrong.  Still, they are there in the spirit of compromise to try to resolve this case. My client will listen to this and will bravely refrain from saying anything in response to this insult. I will restrain myself from screaming my frustration.

And the doctor will say nothing. In fact, he probably won’t even have the guts to show up. He will have consented to a settlement and will send the insurance adjuster and the lawyers to resolve his mess.

I don’t know if we will settle this case or not. For my client’s sake I hope so. I don’t want him to spend even one of his remaining days in trial, listening to the ridiculous testimony of experts seeking to excuse what the doctor did. But part of me wants to take this case to a jury and watch their reaction as the evidence unfolds, to see the expression on their faces as they see the photos of a tumor the size of an ostrich. I want to hear the verdict returned and I want to be able to expose this for the injustice it is.

I don’t know what will happen later today.  I only know my client will die.

Postscript

I’ve waited almost a week to come back to this piece of writing. The mediation was held the day after I wrote this. The result of the mediation is, by agreement, confidential. The doctor was a no-show. Defense counsel did his job and tried to show my client how the good doctor didn’t do anything wrong. He attacked my expert witnesses as hired guns. In fact, all my experts were full professors, heads of their respective departments at prestigious medical schools.

Through all this my client sat and listened and held his tongue. When he had the chance to speak to the mediator privately he did so eloquently and succinctly. Throughout the entire process, from the first day I met this client, he exhibited grace and dignity. I guess that is what makes knowing that he will die because of someone’s mistake all the more painful.

In recent weeks, a study has been released showing what my practice had told me for years: the most common cause of a medical malpractice claims is diagnostic errors. This infographic lays out the most compelling statistics. Knowing that this is happening day in and day out only makes it more difficult.

This was originally published on May 9, 2013. It was (lightly) revised and republished on April 2, 2014.

Featured image: “Last Minutes” from Shutterstock.

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  • http://www.goldberg-law.com Kelly Madden

    Thank you for your extremely well written and thoughtful post. Our firm had a similar mediation just yesterday, and I find your insights to be very timely. I rarely comment on this blog, but your post really compelled me. Nicely done.

  • http://www.stlpersonalinjury.com Todd Hendrickson

    Thanks Kelly. Your comment means a lot to me. See, if you mediated one of these cases yesterday, then you are a warrior, a gladiator, and you understand. In the weeks and months leading up to mediating or trying a case like this, you find yourself questioning why you decided to do this work. Why would any sane person take on this kind of pain. And ultimately I remember it is because, at the end, the gratitude of the client is overwhelming. It truly is about helping people.

  • Mary Kay

    Kelly,
    Your post is heartfelt. Your practice is an emotionally difficult discipline, and the best lawyers are those who are able to remain compassionate and focused. Indeed your article demonstrates that you are compassionate and a focused lawyer. Hang in there, because YOU are needed in this world.

    If I may, I’d like to offer a couple of thoughts that I had upon reading your words. First, always know that we will all die. I believe that is important to always reflect upon, since you are dealing with catastrophic cases regularly. Certainly, a “cheated” destiny, or a seemingly too early death is unfortunate–but I always ponder the destiny piece. It sounds like this particular client is approaching the end of life with grace. A nice gift that he is giving you and those around him–but most importantly himself.

    Next, I just want to share that your career and your life is a journey. Of course the legal profession is one of judgment–that said, we can all be better at what we do when we are humbled. Every professional can benefit from your story. We can all be better at what we do–in order to be the best at what we do, we need to listen, observe and understand our client–this include business clients–they know their business. The lawyers who survive in their profession over the next 10 years will need to know more than the law–they will need to offer more than the facts. They will need to do what your client’s doctor did not do–take time to understand his client and offer smart solutions that benefit the client.

    Kelly, thank you again for sharing your story. You have been granted wisdom through your experience. Best wishes to you and your client. Your dedication to your practice makes the world a better place.

    Mary Kay

  • http://www.painjurycase.com Dave S

    Todd, nice job. Med mal is not for the faint of heat. Sounds like you helped your client maintain that dignity with the way you handled his case.

  • Rey

    Beautifully written. It’s a very interesting perspective regarding law. However, I have question: why didn’t your client get a second opinion from a different doctor?

    • Jonathan Kleiman

      Ray we’re blaming other people here get with the program

  • http://www.stlmedicalmalpractice.com Todd Hendrickson

    There is no simple answer to Rey’s question as to why didn’t my client seek a second opinion. This question comes up in almost every failure to diagnose case I handle. We all carry a bias that in any given situation we would have done what now appears obvious. But the reality is, in the moment, that isn’t the case. We all place trust in our doctors. (Yes, even plaintiff’s malpractice attorneys.). The same hindsight bias question exists for the physician: how could they miss a glaringly obvious problem? In my mind it comes down to this: who is trained to make the diagnosis? The patient or the doctor? Are you going to hold the patient to the standard of the doctor? Because by implying that the patient should have known to seek out a different doctor you are, in effect, saying that th patient should have diagnosed and referred himself. When ou stop and think about that do you want to be held to that standard?

  • http://www.susangainen-nanoscapes-smallfriends.com/ Susan Gainen

    Thank you, Todd. Your post captures the reason that plaintiff’s lawyers do the work that they do.

  • Curt Bogen

    Todd, as you may recall, my twin is a surgical oncologist. You are correct in that byb the time these patients get to the surgeon, they need the surgeon to be “Dr. House”, because the General Practitioner was “Dr. Do-Little or Nothing”. I had a close friend in an identical situation with a slow bone cancer–years after he’d lost a leg to it…which should have been diagnosed at recurrence, and wasn’t. On my desk at work, I have a small memorial, and a photo from St. Louis when Nick Franke (Class of 88) and I took him to the Arch. I see it every day. As you know, the insurance lobby in Ohio passed tort reform, and the poor, poor Dr.’s in their fine fancy automobiles with their big homes and trophy second wives are STILL crying poor….while there are no consequences for those of them who are less than competent The best thing you can do is try to remember that what you do, you do for his family…and in honor of his courage. The insurance lobby is an insidious lot….thanks for the post–reminds people why we all fight cases in our respective practices the way we do…

  • Medical student

    Thanks for the post. Hope everything turns out okay for the patient — if nothing else, hospice care can do wonders.

    In my future practice, once I’m done with training, every single patient that walks into the door will automatically get a full-body CT, complete CBC w/differential, BMP, brain MRI, cardiac enzymes, and upper and lower GI endoscopy. Let’s throw in ANA, pANCA, cANCA, Ro, La, anti-Smith, Scl70, and anti-centromere antibodies. Also, since we’re focusing on cancers, which can present just like any of 1000′s of common benign diseases, let’s also get PSA, CEA, CA-19-9, CA-125, AFP, calcitonin, alkaline phosphatase, and hCG. Just to be sure.

    I’m realizing more and more the important need to protect myself, legally. After all, I’m giving up my 20′s and going into approximately $250,000 in debt (before interest) so I can achieve my childhood dream of becoming a doctor and helping others. It would be irresponsible of me to risk my medical license and my livelihood after a decade of training. I mean, I could do everything correctly and still get sued. For all I know, the physician in this scenario went down the exact diagnostic work-up a good physician was supposed to — can’t really say since the details of patient’s history are unknown (and we can’t take the author’s word at full-value, due to his obvious conflict of interest). Anyways, the point is that, thanks to stories such as this one and the thousands of others that I hear from my mentors on the wards and in the clinics, I know what kind of physician I will be in the future: A defensive one. As one of my mentors (the department head and prominent member in the specialty) says, “I’d order 1000 unnecessary CTs to avoid one potential lawsuit.” We can’t afford to be human these days.

    If you’re wondering where the state of medicine is at right now, there it is for you.

    • William C.

      Oh, poor freaking me! You’re not giving up your twenties and going into $250,000 into debt to become your childhood dream of becoming a doctor and helping others. You’re becoming a doctor to help others and MAKE A LOT OF MONEY. Doctors are the highest-paid professionals aside from professional athletes, CEOs, and white collar criminals. Please get off the high horse, be honest and admit that money motivates you.

      Look at how you are approaching this. A human being would say that they’d be thorough to avoid having a patient die from a cancer that he missed. But you’re only thinking about yourself—you’re thinking of protecting yourself from a malpractice lawsuit, not your future patient from dying from a mistake.

      Sadly, that’s the state of medicine right now.

    • Pat Stoneking

      I hope that when you become a real doctor you develop a more thoughtful approach to the significant dangers created by preventable medical mistakes. You shouldn’t be thinking in terms of “avoiding potential lawsuits” – you should be thinking about giving patients excellent care. One follows the other and your patient’s lives depend on it.

  • http://Www.stlpersonalinjury.com Todd Hendrickson

    Thanks for the kind words and so great to hear from a law school class mate. I do take strength from knowing I help his family. And as my own children are now in high school and college, I take no greater pride than when I earn their praise for a job well done.