Critical Care Medicine - List
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What Price Death: CCM-L Book Review by David Crippen

Gilbert, Sandra M: Wrongful Death: A Medical Tragedy. WW. Norton, Co. New York, London. 1995. 361 pp.

The record shows that the surgery took much longer than usual for this type procedure and the patient required much more blood than usual as well. The patient had been admitted to the recovery room around 2 pm and his hematocrit was measured at 32. At th at time, his vital signs were good and remained so for the next hour or so. However, at 3:05 the patient suffered a sharp drop in blood pressure to 72/48 from 132/98. This was treated with crystalloid volume expansion and a new hematocrit was ordered st at. Within 10 minutes, the blood pressure was back to 113 systolic but no report of a hematocrit value returned from the lab. During this time the patient became confused, agitated, diaphoretic, tachycardic and was restrained.

Around 6:00 pm, the patient suffered a precipitous drop in his blood pressure to 54/0 and he was again given volume expansion with crystalloids and plasmanate. By 6:21, the blood pressure had transiently risen to 99/41 but progressively deteriorated shor tly thereafter. At 6:30 pm, a hematoctit returned from the lab of 17. This was thought to be the one sent three hours earlier. An order was written at 6:50 pm to "hold heparin and transfuse 2 units packed red blood cells now". At 7:12 pm one unit of p acked red cells was hung. Shortly thereafter, at 7:20 the patient was noted to have a heart rate of 36. The "code team" notes began at 7:30 pm and a second hematocrit was noted to be 13. Despite vigorous efforts to revive him, the patient was pronounc ed dead at 8:15 pm. It is also noted by the code team that there was a large amount of bright red blood in the J-P drain bag. 2450 cc of blood to be exact.

In the lawsuit for malpractice that followed, it was learned by the family that the State in which they lived has recently enacted legislation to deter frivolous medical malpractice claims. In fact, the formula for determining damages is fixed and unalte rable. Economic damages are based on the decedent's salary at the time multiplied by the number of years he might have lived according to actuarial tables. There are no allowances for potential raises he might have received, and the projected cost of th e dead person's "consumption" is taken into account. If he could be proved to be an alcoholic or a gambler, deductions would be made. If it could be proven that the widow was planning to leave her husband before his death, this would be taken into acc ount.

Pain and suffering are not compensable for either the decedent or the family in wrongful death cases. He's dead and he can't recover and so pain and suffering are irrelevant. The family can claim pain and suffering only if they witnessed the event causi ng death. Punitive damages are not allowed in wrongful death, no matter how egregious the circumstances. The attorney recommends that they accept a settlement because court expenses quickly eat up any available money, leaving them with less the more the trial drags on. The attorney says the rules are much different for the recovering injured, and recounts the parable of the "axe under glass" in passenger trains. In the event of a train wreck, any surviving conductor is to break the glass, remove the ax e and use it to insure any significantly injured victim is thoroughly dead rather than injured, to decrease cash settlements later on.

So, how would you calculate money damages for this woman and her family?

Lou Brusco:

I think that the whole idea of "punitive damages" is wrong. If someone does something wrong, and it is illegal, he/she should serve a criminal sentence. If not, if he/she is found to have done something wrong but without criminal nature, then he/she/i nsurance co. should make restitution for actual financial losses. Addition of pain and suffering, or puntive damages, are, in a sense, a form of double jeopardy. It is why, despite my conviction that OJ is guitly as hell, he should not be able to be s ued in civil court; it is against the spirit (if not the letter) of the constitution.

David Crippen:

Hmmmm. I'm not sure I'm on the right wavelength here. Let me see if I can bring this issue into better focus.

Curtailment of the tort laws are ostensibly meant to protect us from vicious, snarling, lupine trial attorneys who sue doctors to make a living, and greedy patients looking for a quick buck. This guy didn't spill coffee from a cup plainly marked "caution " onto his lap. He did not emerge from a CAT scanner sans clairvoyant ability. He did not get hit by a meteorite of get his arm ripped off by The Mummy. Under the care of the Head of the Department, he bled to death over six hours in the recovery room of a major medical center in the United States of America, in full view of nurses, housestaff and God himself. Then his attending told the family he had no idea how this could have happened. You guys are pretty hard nosed about this. What would be your reaction if your spouse died shortly after a routine operation, his/her surgeon passed it off as bad karma, and you found out later.....here me now.... he/she bled to death over six hours in the recovery room of a major medical center in the United State s of America, in full view of nurses, housestaff and God himself.

Midnite Marj:

We've only heard one perspective; I want to hear from the surgeon before I assume what appears obvious is really what happened.

David Crippen:

This book is obviously written from the perspective of the family. However, the sequences from the chart and all the depositions are all verbatim, quoted and expertly footnoted. No one from the physician side has come forward to refute any of the chart d ata, no counter lawsuits for libel have been filed, and believe me, this book names names. It seems unlikely to me that the data given could be in much dispute. The deposition of the attending physician showed that he didn't have much of a clue what was going on. Therefore, I am proceeding with this discussion on the basis that the data is true as stated.

John Herbert:

Modern CQI practices required by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) , include tracking and trending of performance of all practitioners by directors of service. IF one of us began to slip this might be a better way suggesting the administrative parachute.....

David Crippen:

It has been my experience that watchdog bodies like the Professional Review Organizations tend to "catch" deviations from standards that only they understand. Most of these standards are murky, to say the least and review is driven by nurses using the Ph ysician's Desk Reference as a guide. Similarly, buzz words like Continuous Quality Improvement tend to be bandied around to appease other quality assurance groups such as the JCAHO, whose reviews tend to be arbitrary and capricious. If hospital resources could just use the universal maxim: Continuous Stupidity Avoidance (CSA), they would probably fare as well.

John Herbert:

Would you consider the "bad hair day" theory that a good clinician can make a mistake?

David Crippen:

How far are you guys prepared to extend these maxims? You have to ask yourself "what is malpractice". my personal opinion is that it is a throwaway word, like "whiplash". The reality is that there is a standard of care that pretty much everyone subscri bes to, and there are two ways to fall below that standard of care. One generally has two choices: One can consider an array of viable options and then make a mistake that results in a bad outcome or cause damages through negligent use available options .

Now, if you ask Ken Mattox or Tim Buchman or a host of other surgeons in this group what they would personally do to a resident who watched a patient on their watch bleed to death in an area of the hospital specifically constructed to avoid this complicat ion........Well, you tell me. If it were my watch, Katmandu would not be too far but not far enough. Assuming this is a true story, I submit to you that this situation is far from a bad hair day. This is negligence, pure and simple. Negligence that r esulted in a death that shouldn't have happened. So, do you think there should be one schedule of reparations for victims of "honest mistakes" and a separate schedule of reparations for victims of negligence?

Dick Burrows:

1. Shit happens: Could the shit reasonably have been forseen?

2. If so did you take reasonable precautions to avoid it or step over it.

3. When it happened did you then act reasonably to lessen the effects of it ???

That's the test of the reasonable man/peer that applies in this country. Rightly or wrongly I don't know. Trouble is that all our reasonables are different. To me it seems that there are two issues. Firstly the shit on the part of the Medical Man. I was always taught that if I made a mistake that I should learn by it. If I made it again I was incompetent. I went to medical school to learn, amongst other things, that if I made a mistake so fundamently stupid (fundamental to normal practice), if I t ook off the wrong leg that I was not likely to be allowed to continue in practice. Life would be better for me if I committed hara kiri.

That's fine but the argument hinges on reasonables and fundamentals which are defined differently by different people. People who are not medically qualified think that a diagnosis of acute appendicitis is as easy as pie and anyway they say just take the bloody thing out - it doesn't do anything anyway!!! Maybe that's why I've seen so many lilly whites in my junior years as an anaesthetist.

That is the second issue - the shit on the part of Lay man who wants his pound of flesh for no good reason other than mob rule. Trial by television, trial by newspaper etc. We do need to expurgate the negligence and be a lot harsher on those of our co lleagues who get up to shit. But the whole issue revolves around the test of the Reasonable Man. Where the facts speak for themselves you may well be right. Don't take of the wrong bloody leg. Don't leave somebody for six hours to bleed to death. Don 't leave a child by himself to pull out his lines one of which is a fistula. Let reasonable men decide.

Lou Brusco:

In-house policing of senile, incompetent doctors has always been a near-farce, and is being made worse by hospitals that are increasingly dependent upon volume of discharges to survive, making doctors with busy practices much in demand. These docs are usually senior guys who are so politically connected in the hospital that they cannot be touched, and any young buck who tries to push it is discouraged from doing it for with a variety of excuses until they are forced out - since they have morals, n ot patients, the hospital doesn't care about them.

Midnite Marj:

Were I Chairman of a Department and I received a letter describing the case, I'd grab the charts and review it myself and then talk to the physician and others. Hopefully I'd be honorable enough to tell the family the truth about what I found, but even if I were a most amoral political slime I'd be forced (at least privately) to look into the and make changes that wouldn't put my department -- and by default the patients -- in harms way in the future. You don't think that'll work at the great majority of hospitals today? What would you recommend to lurkers on this list faced with a similiar situation as RN here described?

Malcolm Fisher:

Modern CQI practices required by the Joint Commission on Accreditation of Health care Organizations (JCAHO) , include tracking and trending of performance of all practitioners by directors of service. IF one of us began to slip this might be a better way suggesting the administrative parachute..... I agree but does it work?. We are too afraid of seeing our own reflection in the glass to really redirect the incompetent. My US defence lawyer friend tells stories of guys who irradiated people for years beli eving it was good and a guy who deliberately left products of conception when doing terminations so he could do it again for a second fee. There is a level of care where the mistakes are too horrendous to just brush away. I believe for example,a patient i s entitled not to have an endotracheal tube left in their oesophagus or to receive a vasoactive drug if they get anaphylaxis.

Majorie Lazoff writes about the M & M meeting. Have a look at "the Unkindest Cut" by Marcia Millman about how M & M meetings are the tool of the powerful which are used to whitewash errors,. Unless doctors are drugged or drunkor have sex with their patien ts it is very difficult to get rid of them because medicine is not an exact science and you can find someone to agree that your treatment was OK. That person may be a professionalmedical "expert" witness. These days you are more likely to get fired for g rabbing a nurse's bum than for killing someone by "accident" Hold off ,lurkers! I am not saying grabbing the nurse's bum should not lead to retribution. I am saying we have a funny set of rules and values when it comes to policing ourselves which is one o f the important criteria of a profession.

David Crippen:

I have always been fascinated by the concept of the law and it's application to society. I have been retained as an expert witness on numerous occasions. Years ago, my first trip to the witness stand ended with me looking like a fool. I learned how to p rotect myself and still give useful information and I am, today, a fairly formidable witness. That which did not kill me made me stronger. I have seen trial attorneys eat physician expert witnesses alive; render them quivering masses of jelly, undulating in the breeze. I have seen physician experts blow opposing attorneys away like dry leaves. I have seen justice done in the courtroom, and I have seen travesty. Therein lies the tale.

The law, specifically the tort system, was designed to compensate victims for their losses commensurate with circumstances. Litigants went before a jury of their peers and each side had their say. The jury deliberated and made a decision on the merits o f the case that a "reasonable person" would make. As any attorney will tell you, it may not be a perfect system, but it is the best one anyone has thought of in hundreds of years, and so it has persisted in spite of controversy. This I believe to be tru e as well.

In a perfect world, people severely wronged should be able to go before a fair and impartial judiciary system and get simple justice. Since we do not live in such a world; like O.J. and Rodney King, we must settle for whatever passes for justice. Mr. Su preme Court Justice Antonin Scalia once said that the adversarial system of justice in these United States was not unlike placing two poorly focused pictures face to face. Each was unacceptably obtuse, but when placed together, a clear picture emerged. My experiences with the justice system suggest that the opposite is true; the final picture is twice as out-of-focus. The system has goals that have been subverted by the whims of individuals on the take.

In any analysis of the justice system, there are the theoretical desirabilities and the practical realities. Theoretically, a system in which people may sue each other without having to assume any financial liability for the outcome (the contingency syst em), allow poor people a shot at justice. The practical reality is that they have an incentive to sue as a bully maneuver for them and their lawyers simply to manipulate their opponent with no liability if they lose. Theoretically, allowing people to su e for punitive damages and for pain and suffering sends a message to potential offenders that deviations from the straight and narrow costs a lot....don't do it. The practical reality is that such devices act as an incentive for attorneys to try for them even if there is no evidence that their criteria exist. 40% of the take is 40% of whatever take you can promote.

And so, somewhere along the line it became apparent that the scale tipped in favor of abuses within the judicial system. Attorneys running around like sharks....creating conditions for litigation, creating delay at $150.00 per hour, churning the pot for the maximum outcome. They do it because the system allows it, even though it may not necessarily encourage it. As a natural consequence, regulation soon followed. Draconian restrictions of pain and suffering awards, restriction of punitive damages, lim iting access to the legal system for potential litigants. Viscerally,it is a satisfying concept. Curb the abuses by simply creating an environment where abuses are not welcome.

But I submit to you that these restrictions are two edged swords. This patient and his family formed a contract with his health care provider for certain services with the expectation that a reasonable level of vigilance would be a part of the deal. If h e had suffered an unexpected event that had nothing to do with the course of his usual care, such as a sudden, unexpected myocardial infarction postoperatively, I believe he should be awarded no compensation other than his life insurance. However, in the commission of these services, negligence entered the picture, resulting in an adverse outcome that would not have happened had reasonable care been given. Therefore, I believe that the wife and family of th is patient should be compensated above what his normal wage would have been for the duration of his actuarial life, simply because there are extenuating circumstances that mitigate for it.

In an unrestricted tort world, this family would have a jury take into account the circumstances of this death and adjust the compensation to this family accordingly. Yes, in such a free system there will always be abuses and excesses. Coffee spills fro m plainly marked cautionary cups will beworth millions. Former clairvoyants emerge from CAT scanners clueless and get millions for their infirmity. People who stub their toe on your sidewalk will get paid off. Burglars trapped in snares while robbing y our home will make out like bandits, so to speak. But I would exhort you to consider the alternative. In order to squash the relatively few big awards for stupidity related cases, the entire system is being revamped to exclude the many at the price of t he few. In society's haste to quash a few highly visible legal excesses, they have also quashed meaningful compensation to those who have a more viable claim of it.

This family lost it's patriarch purely and simply because of NEGLIGENCE. This wife describes her PAIN AND SUFFERING so eloquently that it is emotionally wrenching in the extreme. I cannot believe that anyone in their heart of hearts would beso callous as to tell this woman and her family that they don't deserve any compensation from this situation because this is the price they must pay to avoid idiots raping the system for bullshit complaints that the system is too insensitive to filter out. This man d ied because someone who was supposed to be looking out for him was asleep at the switch. IMHO this requires justice. Since it is unlikely that justice will be found in the medical system, justice should then be found elsewhere. I would have given this family the moon and the stars.

It seems that we can have things one of two ways, but not both. Either we can put up with a few excesses, maybe some spectacular, in order to allow some meaningful compensation for victims of NEGLIGENCE, or we can construct as system completely insensiti ve to extenuating and mitigating circumstances of damages. Tough bounce, lady........but you can be content that we're screening out excesses in the system :-). Which world would would you rather live in?

PS: There are two exceptionally interesting an informative books on the legal system written by Peter W. Huber. Mr. Huber is an MIT trained engineer and Harvard Law graduate and former clerk for Supreme Court Justice Sandra Day O'Connor.

• Huber, PW: Liability: The Legal Revolution and it's Consequences. Basic Books, Inc. New York (paperback).

• Galileo's Revenge: Junk Science in the Courtroom. Basic Books, Inc. New York (paperback)