A Bitter Remedy in Medical Malpractice

By MAURA DOLAN

May 28, 2000 12 AM PT

TIMES LEGAL AFFAIRS WRITER

A check for $460,000 had arrived in the mail the day before, but it failed to cheer Mark Johnson. His award for medical malpractice, after legal costs, was slow in coming and far too little, he complained.

Dressed in Bermuda shorts and a short-sleeved shirt, the tall, tanned Johnson watched his two children play outside their former home in Orange. He looked robust and healthy, except for his left leg.

Below his knee was a skinny, shiny metal pole, connected to a wooden foot inside his shoe, the result of a severed artery suffered during an elective surgery.

The medical malpractice system, said Johnson, 41, “failed me.”

Like thousands of other medical malpractice cases, Johnson’s ended in agonizing litigation. It may have hindered his recovery by requiring him to dwell on his suffering. And, from the doctor’s perspective, it did nothing to make medicine safer.

Yet without the legal process, Johnson would have received nothing for his loss. Legal action is the most common way for those injured by medical mistakes to be compensated. It also is often the only vehicle for uncovering what went wrong in a devastating medical calamity and for holding the erring doctor or hospital accountable.

Still, the remedy is an emotionally wrenching experience, rarely leaving either patient or doctor satisfied and discouraging the kind of candor needed to deter future medical mistakes.

Compensation also may be disappointingly small. No matter how great the loss in a medical malpractice case, damages for pain and suffering in California are limited to a maximum of $250,000, a controversial cap that trial lawyers and consumer advocates are trying to raise through legislation in Sacramento. Victims also receive compensation for lost earnings and medical expenses.

Johnson said the litigation process put him on trial. Defense lawyers intimated that he was greedy, litigious and perfectly capable of leading a normal, profitable life without his lower left leg, he said.

“It was as though I was faking,” the amputation, he said. “I didn’t do anything wrong. They cut off my leg.”

On the other side of the lawsuit, the doctor finds his reputation on trial.

Dr. James Lau, the orthopedic surgeon who made the mistake that led to Johnson’s amputation, said the lawyers examined his professional decisions “under a magnifying glass,” even though those decisions had been made in the context of an operating room.

He said he felt all his career was being reduced to one unfortunate “complication”: the mistaken cutting of a vital artery during an operation to correct a foot deformity.

“I wished I had a time machine and could go back and do the surgery again,” Lau said.

Patients’ advocates say the threat of lawsuits makes medicine safer. But studies also show that the fear of liability produces conservatism and secrecy in medicine.

Lau, who practices at Kaiser Permanente Medical Center in Anaheim, said Johnson’s amputation was “the worst” outcome in 20 years as an orthopedic surgeon. Lau initially went into “denial.”

“No one wanted to harm Mr. Johnson,” Lau said in his small Kaiser office in Anaheim. “Everyone was trying to take care of him as best as possible.”

Even the Best Doctors Can Make Mistakes

Tens of thousands of people die nationwide each year because of medical mistakes, and scores of others are injured, according to a recent national Institute of Medicine report. But only a fraction of those who are injured call lawyers, either because they don’t want to pursue court action or because they never learned a mistake was made.

For those who eventually win malpractice cases, compensation tends to be relatively meager, researchers say.

A detailed economic study of individual malpractice awards found that severely injured patients receive only 57% to 87% of their monetary losses, according to Randall R. Bovbjerg, author of a book on medical malpractice policy and a principal research associate at the Urban Institute.

Another study, a 1996 review of hospital medical care, found that 17.7% of the patients had to remain hospitalized longer and had bigger bills because of medical errors. But only 1.2% of them filed claims for compensation.

The study, by Lori Andrews, a professor at Chicago-Kent College of Law, said most of the mistakes occurred during the monitoring and daily care of hospital patients.

Nearly 40% were caused by poor judgment or technical performance, 15.6% by faulty communications and 9.8% by inadequate staffing and unavailable equipment, Andrews found.

There are isolated cases of notoriously inept doctors. And even the best physicians sometimes make mistakes that cause serious injuries or even death.

“I have seen doctors with superb paper credentials making really glaring mistakes,” said San Diego trial attorney Kenneth M. Sigelman, who also is a doctor.

A medical malpractice insurance executive, Philip Hinderberger of NorCal Mutual Insurance Co., estimates that “70% to 80% of physicians will be sued during their careers,” in most cases by patients who didn’t suffer from negligent care.

When suits are litigated, body parts and suffering are measured in dollars and cents.

The median medical malpractice award for an arm or leg amputation nationwide in 1998 was $954,500; for breast cancer, $1.26 million; and for injuries that caused severe mental deficiencies, $6.2 million, according to Jury Verdicts Research, which collects awards data.

On appeal, however, these verdicts may have been cut substantially by judges, or, as in California, by legislatively created caps on damages.

The biggest predictor of who will sue is the gravity of the injury, insurers say.

But there is little correlation between the severity of the injury and who wins at trial, according to jury researcher Neil Vidmar.

Vidmar, a Duke University professor, said juries generally award compensation on the basis of negligence, not of a patient’s injury, and only a fraction of lawsuits end in jury awards.

In more than two-thirds of malpractice cases, insurers and researchers say, the patients receive no money.

Looked Forward to Corrective Surgery

Johnson had looked forward to his surgery. Although he water-skied and played racquetball and golf proficiently, his left foot hit the ground at an angle that produced calluses and put pressure on his back.

He was born with club feet, and years of treatment as a child corrected his right foot but left him walking on the ball of his left foot.

After consulting a Kaiser podiatrist in 1997, Johnson was referred to Lau, an expert in pediatric orthopedic abnormalities.

“I told him I had over 90% confidence I would make him better,” said the Hong Kong-born surgeon, who is board-certified in orthopedic surgery in the United States, England and Australia.

Johnson was thrilled. “I had very high expectations that after 38 years of not being normal, I was going to be a regular, normal person,” he said.

On April 6, 1998, Lau did the surgery with an assisting surgeon. As Lau later described the operation, he was cutting in places he could not see. He had to operate by feel.

He accidentally cut a tendon, realized it and repaired it. But he did not realize that he also had cut an artery adjacent to the tendon. Because of Johnson’s congenital deformity, it was Johnson’s only artery to the foot. Most people have two.

When Johnson’s foot did not pink up after the surgery, Lau attributed the problem to an arterial spasm and prescribed blood thinners.

The assisting surgeon left the operating room before the surgery ended. He had an appointment. Johnson was sent to the recovery room, and Lau tended to other patients.

Two hours later, Johnson’s toes were still pale and cold when Lau came to his bed. “He said, ‘We had a great surgery, came out better than expected,’ ” Johnson recalled. “However, we are having a little problem. The color of your toes isn’t right.”

Tests were done, and a vascular surgeon operated again on Johnson that evening to try to repair the artery. The surgery failed, largely because of the nearly eight-hour time lapse between the cut and the attempted repair. Johnson remembers that Lau was profoundly apologetic.

The following days passed in a blur as Johnson’s toes blackened, his pain escalated. He said the pain medication gave him nightmarish hallucinations that remain vivid to this day.

He does not remember who told him that his lower left leg would have to be amputated.

“After three days of watching your foot die, you gather your own point of view,” he said. “Frankly, it wasn’t much of a surprise.”

Daniel M. Hodes, Johnson’s lawyer, said Lau should have immediately called in a vascular surgeon when Johnson’s foot failed to warm up and regain color after the surgery--particularly because he knew the tendon he had accidentally cut was adjacent to the artery.

Although other factors might have explained Johnson’s pale, cold foot, “one should always rule out the most serious potential diagnosis before one departs,” Hodes said.

Johnson’s leg was amputated April 15, nine days after he entered the hospital. Friends and family members advised him to get an attorney.

While he lay on his hospital bed, he tried to convince himself and his wife, Rose, not to be despondent despite his misfortune.

Johnson recalled an article about the $2.9-million dollar jury verdict that a woman had received for being burned by hot McDonald’s coffee. (The case was later settled for less than $640,000.) Johnson said he figured he would recover millions.

Johnson, a car mechanic, earned $50,000 a year at the time. He had dropped out of high school to help his newly divorced mother pay the bills. With a prosthesis, he would no longer be able to slide under cars, work a clutch or even test drive small cars.

He said he assumed a malpractice award would pay for him to go back to school and learn a new line of work. He also told his wife that they could pay their bills and move out of their well-tended, Anaheim mobile home under the shadow of a freeway.

His hopes for hefty compensation vanished when Hodes, a Newport Beach medical malpractice litigator, “told me about the cap,” Johnson said.

1975 Cap on Damages for Pain, Suffering

California established its $250,000 cap on damages for pain and suffering in 1975 because of skyrocketing medical malpractice insurance rates. No ceiling was placed on compensation for lost earnings and non-reimbursed medical expenses. The California law occasionally produces quirky results.

Monetary damages are relatively small for children, the elderly and low-wage earners who die from medical malpractice. Compensation for their deaths will be limited largely to pain and suffering--topped at $250,000--and funeral expenses. There will be little, if any, money for lost earnings and no future medical expenses to compensate.

Los Angeles medical malpractice lawyer Bruce Fagel, who is also an M.D., contends that hospitals calculate dollars and cents when advising parents when to let birth-damaged babies die.

When babies are born with significant brain injuries caused by doctors’ mistakes, he said, “neonatologists are very quick to turn off life support machines.”

“If a child survives and requires lifetime medical care, those cases cost millions,” he said. “If the child dies, it is worth $250,000.”

Although he concedes that physicians may base their advice on compassion rather than money, he said the malpractice cap on damages “is a known factor.”

“There is not a physician practicing in neonatology intensive care who does not know there is a $250,000 ceiling on medical malpractice cases, except when the child lives,” he said.

The cap has been at the center of a political fight in Sacramento. Trial lawyers want it raised to account for inflation since 1975. Doctors and insurance companies vehemently oppose substantial increases.

Economists generally say caps are effective in limiting the rise of medical malpractice premiums. But many who support caps acknowledge that the one-cap-fits-all scheme is unjust, and they recommend a sliding scale to guide juries and arbitrators in making awards.

The $250,000 cap is too low for a patient who will experience lifetime pain or immobility and too high for someone with a temporary injury, said Bovbjerg of the Urban Institute.

Even a $1-million cap on pain and suffering “is less than half the value routinely placed on a lost life by regulatory reformers,” in cost-benefit analyses, Bovbjerg said.

In addition to pressing legislators to raise the cap, trial lawyers want more information about medical errors to be made public. But the threat of lawsuits makes health care providers reluctant to disclose their mistakes.

Noting that many medical errors are not reported, the 1996 Andrews study said: “In fact, some physicians in the study indicated that they did not include information about errors in the patient’s chart because they wanted to avoid litigation.”

Internal peer review by physicians remains confidential in California, although certain hospital discipline of doctors must be reported to the Medical Board of California.

A hospital typically has several cases being reviewed by medical staff each day. An unscheduled return to surgery will trigger a peer review, as will the filing of a legal claim or lawsuit.

The state medical board is supposed to make public all arbitration and malpractice awards against physicians, but the board depends on doctors and their insurers to report the judgments. Settlements of malpractice cases must be reported to the board, but they are not made public.

The award for Johnson is the only malpractice judgment against Lau on public file with the medical board. In another medical malpractice case that went to arbitration, Kaiser had to pay $75,825 to a former Lau patient.

Kaiser said the latter case was settled after the arbitration award, so it was not publicly posted.

Lau said those two were the only cases in which he was found to be liable. He also has been named with other doctors as defendants in two cases that are still pending.

Executives at medical malpractice insurance companies said two awards over 20 years for an orthopedic surgeon is not out of the ordinary.

“On the average, it is a very good record,” said Dr. Richard Anderson, chairman of the Doctors Co., the largest physician-owned medical malpractice company in the United States. Four out of every 10 orthopedists in California will be named as defendants in legal claims each year, he said.

Dr. Ted Funahashi, head of orthopedics for Kaiser’s Southern California operations, described Lau as the “go-to pediatric surgeon.” Lau specializes in pediatric orthopedics and handled Johnson because his problem stemmed from a pediatric deformity. Other doctors send their own family members to Lau, Funahashi said.

“He is very well regarded by staff,” said Funahashi. “You would have a unanimous vote on him.”

Sharp Impact on Patient, Surgeon

In the months after Johnson’s surgery, his will to resume a normal life gave way to exhaustion at trying so hard. He said he felt “like such an outsider.”

At night, his prosthesis next to the bed, Johnson crawled along the floor to get to the bathroom. He was frustrated that he could not quickly reach his children, Marshall, 6, and Jaymie, 5, in an emergency.

Short-tempered and barely communicating with his family, he finally saw a psychiatrist and began taking antidepressants.

“One time playing racquetball, I got so upset with myself because I couldn’t do what I used to do,” he said.

“I really wanted to take that leg off and throw it across the court. In place of that, I smashed my racquet against the wall,” he said. “It is just something horrible inside you that you can’t get rid of.”

He said his lawyer told him that Kaiser investigators might spy on him and photograph him. If they could show his missing lower leg was not interfering with his life, damages might be less.

Although there is no evidence that Kaiser investigators staked out Johnson’s home--and Kaiser said it did not--he said he became almost paranoid. It became a disincentive toward trying to lead a normal life again.

And, true to the legal advice he received, attempts were made during his case to show the amputation had not severely affected him, Johnson said.

The defense noted that he could still play racquetball and pointed to a resume he had written that boasted of his many abilities, he said. The resume had not produced a job offer.

Lau, 44, said Johnson’s amputation made him question whether he wanted to perform an operation ever again. He considered retiring early or refusing to do high-risk surgeries.

Seated in his Kaiser office, Lau, a small man with gold-framed spectacles, punched keys in a laptop computer to show before and after pictures of some of his patients.

A religious Christian, Lau travels to China each year and operates on the rural poor without charge for a Christian ministry.

One of the pictures on his laptop was of a little girl who came to him unable to walk. She crawled “like a dog,” Lau said, dragging her legs behind her. Lau operated, and she walked for the first time in her life.

Shortly after Johnson’s surgery, a teenage girl with a deformed foot came to see Lau. She could not walk without pain, he said. Given the catastrophe of Johnson’s surgery, Lau asked himself: “Should I take this case? “

He did, and the operation succeeded. The girl smiled for the first time in Lau’s presence when she examined the results, the doctor said.

“I thought maybe God gave me this case to regain my confidence,” he said.

Use of Arbitration

Kaiser, like many businesses today, requires legal disputes to be decided by private judges--arbitrators. Johnson’s arbitration took four days, held in a conference room in Orange, 17 months after the amputation.

Arbitration is generally favored by defense lawyers. Plaintiffs’ attorneys complain that arbitrators tend to rule more often for corporate defendants because they want to be assured of being hired for future cases.

But arbitration also may benefit plaintiffs when liability is not clear cut. Arbitrators, some trial lawyers believe, tend to arrive at compromise verdicts, whereas a jury that believes the doctor will give the plaintiff nothing.

Johnson had asked for $1.4 million in compensation. Two days before the case went to arbitration, Kaiser offered to settle it for $400,000, Hodes said. The lawyer refused.

During the arbitration, Johnson sat on one side of a table, Lau on the other. Experts debated whether the cut artery was a known risk of the surgery or whether it was caused by negligence.

The arbitrators eventually ordered Kaiser to pay Johnson and his wife a total of $682,030: $250,000 for his pain and suffering, $125,000 for his wife for her suffering and $277,030 for future medical costs.

The award for lost earnings was small: $26,500 for past earnings and $3,500 for future lost earnings. Johnson previously had been on disability because of back pain, and the arbitrators figured he would have had to find a new line of work anyway, Hodes said.

After attorneys’ fees and court costs, the Johnsons received $460,000.

The Johnsons used the money to pay off back bills and put down a deposit on a new home in Chino Hills. They banked all that was left--$80,000--for future medical expenses.

Johnson found a job in December, managing a muffler shop, but had to quit less than three months later. The long hours of standing produced painful cysts from his prosthesis.

He said the move to a new house and community has made it easier for his family to cope, but his children “know dad’s different.”

“We used to take the boat out and go water skiing,” he said. “I go out and play with the kids, play ball and run around, but it just is not the same. They have a different dad now and Rose has a different husband.”

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Beginnings of Malpractice Claims

Where Malpractice Claims Originated, 1985-97

Hospital: 64%

Practitioner’s office: 27%

Other*: 8%

Hospital Areas Where Claims Originated, 1985-97

Operating room: 34%

Outpatient: 30%

Patient’s room: 12%

Emergency department 7%

Labor and delivery room 6%