A CCM-L EXTRA: INTERVIEW WITH THE ATTORNEY
(Re: Futile resuscitation).
Guest CCM-L Lawyer X:
I am now an attorney. I specialize in representing plaintiffs in medical negligence cases, and in bringing false claims act or "qui tam" cases for victims of Medicare fraud. As you might guess from my background, I am very selective about what cases I choose to prosecute, and I would be willing to open up any case I am working on and show you where I think there is malpractice because I will not take a case I do not believe in. So I don't take marginal cases, and I don't take cases where the deviation is not absolutely provable to my satisfaction.
David Crippen:
Mr X, this makes you a very rare bird indeed, but your story is incompatible with others I know in the business of trial lawyering. One of my closest personal friends (for 30 years) is a trial attorney who sails a 40 foot mahogany ketch rig around the Caribbean courtesy of the many doctors he has successfully sued. I do believe he is an honest attorney and I also do believe he tries to do the right thing, but with certain notable caveats. -
He rarely if ever makes any personal decision about whether or not the case has merit. His job is to represent the best interests of his client. If his client says he or she has been wronged and demands redress, he is the instrument of that recompensation.
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He looks at the case in terms of whether it can generate money for him and his client. Period. There are no shades of grey. If he can't get damages, the case will not be pursued, regardless of how egregious the specifics might be. He works on a contingency. He has to put up all the money. He isn't going to do that unless he thinks he can win.
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When he contacts a physician for an expert opinion, he has two questions. Is there a standard of care in this situation in question? and has that standard been breached? He has no hired guns. He calls people he trusts to give an honest opinion. On the basis of that opinion, he decides if the case can generate enough money in damages to pay off the money he will have to put into it plus a profit.
The way this system is set up, there is good news and bad news. The good news is that people who are legitimately harmed and have no money to pursue the large cost of bringing legal action have a shot at redress. The bad news is that there has to be enough damages in the works to feed the system. That means that legitimately harmed people with insufficient money making potential get left at the door.
I think you must also remember is that most attorneys do not want to go to court because it's too expensive and too chancy. Most would rather bully insurance companies into settling for a lesser amount by threats of lawsuit. We have several in Pittsburgh that are past masters at it. You see their concerned faces on the TV in the middle of the night standing at the scene of motor vehicle accidents..........."Don't trust an insurance company to treat you fairly........let us deal with them". " A finger jabbing out of the screen...."We'll get money for you!". Free money. How many John Q. Publics have an interest in pursuing "real" cases when free money is involved?
The reality is that these guys have a very well oiled algorithm when grieved potential clients call in looking to sue. They get a secretary with a set of questions carefully constructed to see if there is money making potential for the law firm, beginning with "what kind of insurance do you have?" If you fit the circumstances needed, that can usually bully an insurance company into settling for nuisance value. If you don't have those circumstances, you get tactfully shown the back door, even if you have a legitimate complaint.
So, counsellor, I submit that the machinery of the legal system serves itself first, and those who insist on keeping the flame of the pure essence of justice for all can't make a living at it. There probably isn't enough "real" malpractice to maintain the bloated ranks of trial lawyers in their wood paneled offices. The trial lawyer industry would have us believe that limits on how many attorneys churned out from diploma mills yearly should be set by market forces. When the jobs disappear, people will stop going to law school. But it hasn't worked. Unlike soon to-be-extinct anesthesiologists who cannot induce demand for surgery, lawyers can "find" malpractice and milk it dry. When new graduates find out there isn't any legitimate work they simply make work by finding thinner and thinner excuses to sue people.
My personal opinion is that a schedule of damages payable up front for demonstrable injury is preferable because everyone would get something instead of high profile cases getting too much and low profile cases getting nothing, but that's another story.
Guest CCM-L Lawyer X:
Crippen said: "He rarely if ever makes any personal decision about whether or not
the case has merit. His job is to represent the best interests of his
client. If his client says he or she has been wronged and demands
redress, he is the instrument of that recompensation".
I think I feel this way when and if I am satisfied that a good case exists.
If the case doesn't exist, I have a responsibility to the system. It
takes a lot from a physician to defend himself against a charge of
negligence. It robs the doctor and everyone else so accused of the one
thing that may be vital to their care of other patients -- their confidence
-- and I will not deprive someone of peace of mind lightly. One cannot
accept bar membership and figure that the other lawyer will take care of
his client. We have a responsibility to others as well, and any one-sided
view is incompatible with my core value which is a pursuit of justice. If
your friend truly operates this way, then he is hurting a lot of people.
(FWIW: I drive a 91 Grand Am, have 3 kids, and count on every paycheck).
David Crippen:
But the system is one of adversaries duking it out. If one side is prepared to give ANY concessions to the other side, theoretically they compromise their client. The system goes into it assuming that each side will twist the truth to the best advantage of their client. Antonin Scalia once defended the legal system by likening it to putting an overexposed photo on an underexposed photo. Theoretically, the exposure becomes normal somewhere in the middle. My response to that was that the product was probably twice as ill-exposed.
Watching the impeccably lothesome OJ Simpson trial taught me one very important lesson about dealing with the law. It is not a system where truth and justice prevails because of honorable intentions. It is a system where aggressive and imaginative trickery and intimidation wins. If you try to win on the fact that the "right thing" prevailed, your opposing attorney will do everything in his/her power to insure that the jury sees the "right thing" as something more compatible with their point of view. If I were sued, and I risked the possibility of losing any of my resources, I would go straight to Barry Sheck; I would borrow or steal whatever he wanted for a retainer and then I would whisper in his ear: "Go do to my opponent what you did to Dennis Fong".
Taking a chance on the current system distributing justice is simply too iffy. If I was in trouble and important things were hanging on it, I would go for the throat, as I can assure you my opponent would as well. I have said in the past that peaceful negotiation is a very esthetically pleasing concept when the stakes are low. When the stakes get big, people start fighting, and they don't quit until there is only one standing. I didn't invent the system but I have been around it long enough to know how it works in real life.
Guest CCM-L Lawyer X:
Crippen said: "He looks at the case in terms of whether it can generate money for
him and his client. Period. There are no shades of grey. If he can't
get damages, the case will not be pursued, regardless of how egregious
the specifics might be. He works on a contingency. He has to put up
all the money. He isn't going to do that unless he thinks he can win."
Granted, this mentality is common among the vast number of successful
malpractice attorneys. I even know a couple of lawyers very close to me
who behave in this manner. But a bottom-line mentality without compassion
for the client is, in the long run, a bad strategy.
Crippen said: "When he contacts a physician for an expert opinion, he has two
questions. Is there a standard of care in this situation in question?
and has that standard been breached? He has no hired guns. He calls
people he trusts to give an honest opinion. On the basis of that
opinion, he decides if the case can generate enough money in damages to
pay off the money he will have to put into it plus a profit."
From a strictly business approach, I think you're right -- lawyers do this.
Crippen said: "That means that legitimately harmed people
with insufficient money making potential get left at the door."
That is certainly the truth, and I hate that aspect of my job. I have to
tell people, from time to time, that I can't take their case because of the
system. For example, lets say you lose a 68 year old retired woman. She
has no lost wages, no lost earning potential, and very little economic
value. So her case is, from an economic standpoint, very limited. Now,
lets say there is an allergist, a rheumatologist, and an internal medicine
doctor all potentially at fault. That means I need three experts to look
at the case, probably six to testify, and that means that before this case
ever gets to trial, I will have shelled out at least $12,000 in expert
fees. Now, in Kansas, on the best day, I get $100,000 in non-economic
damages for wrongful death, and $250,000 for non-economic if there is a
survival action. So the insurance company knows that on the worst day, it
will be on the hook for no more than $350,000. So, they know if they name
three experts, all who require $5,000 before their deposition, that I will
never be able to generate enough money in damages to pay off my experts,
pay my expenses, and still have anything for the heirs. So they stonewall,
and unless their is a potential for punitive damages (very very rare), they
are home free. So I will not disagree that too many people get left out
of the matrix by our current system. You are absolutely right.
Crippen said: "Secondly, you must remember is that most attorneys do not want to go to
court because it's too expensive and too chancy. Most would rather
bully insurance companies into settling for a lesser amount by threats
of lawsuit. We have several in Pittsburgh that are past masters at it.
You see their concerned faces on the TV in the middle of the night
standing at the scene of motor vehicle accidents..........."Don't trust
an insurance company to treat you fairly........let us deal with them".
" A finger jabbing out of the screen...."We'll get money for you!".
Free money. How many John Q. Publics have an interest in pursuing
"real" cases when free money is involved?"
This part makes me sick. Our firm never advertises, and I get nauseas
listening to these sharks feed in the water. You'll get no argument from
me on this one.
Crippen said: "The reality is that these guys have a very well oiled algorithm when
grieved potential clients call in looking to sue. They get a secretary
with a set of questions carefully constructed to see if there is money
making potential for the law firm, beginning with "what kind of
insurance do you have?" If you fit the circumstances needed, that can
usually bully an insurance company into settling for nuisance value.
If you don't have those circumstances, you get tactfully shown the back
door, even if you have a legitimate complaint."
Yes sir, that is true too. I've seen this system work too. In fact, a
firm I clerked for for about 3 months in law school used to specialize in
having "repeat business" from their personal injury clients. It made me
sick and I quit. Let me tell you, the bar does not do a very good job of
policing this.
Crippen said: "So, counsellor, I submit that the machinery of the legal system serves
itself first, and those who insist on keeping the flame of the pure
essence of justice for all can't make a living at it."
Right again. That's one reason I am pursuing the qui tam cases now.
Crippen said: "There probably isn't enough "real" malpractice to maintain the bloated ranks of trial
lawyers in their wood paneled offices."
Of course, this depends on whom you believe. I think, for the most part,
most medical negligence goes undiscovered. And I wonder, and this
question would apply to all the physicians out there, have you ever
reported a colleague for malpractice or professional misconduct? I've had
the unpleasant task of reporting an individual for the unauthorized
practice of law, and I was made to feel like a lizard over it -- I can
imagine it is much worse in the medical field. And, I would note, I saw a
lot of malpractice that never got reported, and I saw medical records
altered to erase traces of negligence when I worked as a therapist. I saw
it two times that I know of, and as a therapist, I did not feel I could
bring this to the attention of medical staff, and the hospital
administration told me to "shut up and sit down."
Crippen said: "The trial lawyer industry would
have us believe that limits on how many attorneys churned out from
diploma mills yearly should be set by market forces. When the jobs
disappear, people will stop going to law school. But it hasn't worked."
Right again. There are too many lawyers, no argument here.
Crippen said: "Unlike soon to-be-extinct anesthesiologists who cannot induce demand
for surgery, lawyers can "find" malpractice and milk it dry. When new
graduates find out there isn't any legitimate work they simply make
work by finding thinner and thinner excuses to sue people."
Some do, but I think this is an overgeneralization. Remember, a lot of
those lawyers go to work manufacturing defenses for cases as well!
Crippen said: "My personal opinion is that a schedule of damages payable up front for
demonstrable injury is preferable because everyone would get something
instead of high profile cases getting too much and low profile cases
getting nothing, but that's another story."
The problem is that lawyers can game any system. The Workers Comp system
in Missouri is a good example. One of my colleagues described it as
legalized stealing -- and I think he was right. I can never convince you that all trial lawyers are pure as the driven
snow. They are not. But I can tell you that, as a former health care
worker, I am sensitive to what I do, and to the impact that what I do has
on others. And I could tell you some stories about defense experts that
would curl your hair!
David Crippen:
OK, lets look at a hypothetical. I will supply any further questions you have after you hear the story.
A client enters your office and states he desires to pursue legal action against physicians and hospital because they undermined his autonomy as the legitimate surrogate of his mother. The patient, age 86, resided in a nursing home incapacitated from multi-infarct dementia and debilitating arthritis. She had not communicated in 6 years and suffered from musculoskeletal contractions such that she could not sit in a chair, and so had inevitable decubiti ulcers from enforced bedrest.
However, the patient tells you that his mother was able to communicate with him by facial gestures during long conversations he held with her at the bedside during visiting hours. Nursing home staff had never been able to duplicate any of this coherence. During these conversations, the patient told her son to insure that "everything" be done for her no matter what her medical condition deteriorated to. She allegedly told him that she wanted CPR and full life support even in the event that her condition became apparently irreversible as she felt this eventuality would only be a test of her faith in God. She was sure her faith would not be found wanting and her trials would be cut short after God was satisfied that her faith was strong enough to stand the test.
Accordingly, she was transferred to the emergency department in septic shock from one of increasingly frequent bouts of urosepsis. The son arrived at the ED and loudly demanded that "everything" be done. He produces a document signed by the patient giving him durable power of attorney to make decisions for her in her incapacitated state. Her condition was moribund. However, CPR, intubation. central venous access, vasopressors and guidance with a PA line brought her hemodynamics back to stability. However, she did not respond to painful stimuli and her pupils were mid position and fixed. She was duly transferred to the ICU, along with the son who slept on the floor outside the ICU for the rest of the night.
The next morning the patient almost but not quite met the clinical criteria for brain death. She showed no clinical evidence of meaningful cerebral activity but on close exam she was seen to take a very shallow attempt at ventilation about very 15 seconds when removed from mechanical ventilation. An EEG was ordered by the attending ICU physician and it showed only the sparsest activity, but not electrical silence.
The son was very vocal in his demand that "everything" be done. This is a test of his mothers faith and he is certain that her faith will be found acceptable and then God will allow her to come back to her baseline function, where she can continue to communicate with him during their visits at the nursing home.
The ethics committee is contacted and a meeting is set up with the son. He is polite, but firm. His first question: "Do you people have any authority to take my mother off life sustaining technology over my wishes to the contrary?" Answer: "No, but we would like to discuss........". Reply: "Thank you very much. This meeting is over".
The patient remains in the ICU for one week on life support during which time she becomes hypothermic, develops renal failure, diabetes insipidus, has a colonic bleed and continues to require vasopressors. Of course, the son demands chronic dialysis. However, during dialysis, she requires large increases in vasopressors. The son sleeps in the ICU lounge and demands to read the bedside chart to insure "everything" is being done.
Next night, the patient drops her blood pressure to 50, gets bradycardic and her oxygen saturation drops to 75% on 10% oxygen. The bedside nurse calls the ICU attending to the bedside. Should we do CPR? The attending considers the situation. No CPR, Just wait. Several minutes later the patient expires in asystole.
The attending goes to the son and tells him the patient is dead. The son asks: "Did you do "everything" to try and save her?" Answer: "We did everything reasonable we could do". Next question: "Did you do CPR when her heart failed?". Answer: "No, I did not feel that CPR would have been of any utility". Reply: "Doctor, I made it very clear that I wanted you to do CPR and I explained in detail the reason. You have gone against my expressed wishes and now I am going to sue you for wrongful death. If you had just done CPR, that final act of trust on your part would have completed the final link for my mother's trial from God, and at that point God would have been satisfied that her faith was strong enough and the faith of her physicians was strong enough as well and she would have been miraculously revived." By disregarding her request, you have broken the link and now she is doomed to everlasting damnation.
I was very explicit in my wishes. You have violated my mother's autonomy do be treated as she desired. I am contacting a lawyer".
Does he have a case? Would you take this case?
Guest CCM-L Lawyer X:
Okay, to answer the call of your question, "does he have a case," not in
wrongful death. In wrongful death cases there must be three things,
negligence, causation, and damages (or, in some cases, an intentional act,
causation, and damages). Here the son would never find a doctor who would
be believeable testifying that CPR would have saved his mother's life,
especially given the statistics on hospital-based CPR in the ICU. This
case is defended on causation by asking this question: "What did the ICU
doctor do, or fail to do, that caused the patient's death?" The answer, of
course, is that nothing he did or failed to do caused the death; the cause
of death was total body failure or what we used to call YSAGDS syndrome
(you sa gonna die, sucker). The plaintiff would have to prove, to a
reasonable degree of medical probability, that the doctors action was the
cause in fact of the death, and there is no way that could be done.
Does he have a cause of action for some other, inchoate tort? Maybe! The
ADA and the Rehabilitation Act would provide an opener, and a resourceful
plaintiff's attorney, I suppose, could argue that these federal laws were
violated ala Baby K. Then there is the "Breach of fiduciary duty," cause
of action, and, although its a stretch, I suppose assault might work under
a theory that the refusal to render care was the same as an intentional
harmful touching. Very difficult, but in these cases, sometimes new law is
made.
Now, who is going to take a case like this? No rational plaintiff's
attorney. Would I put up $50,000 of my money for a religious nut in a time
when, for the most part, people view this kind of person as a lunatic? No
way. I would want a deposit up front for costs and expenses of at least
$50,000, and then, maybe I would consider it if the plaintiff agreed to pay
me $125 per hour for my work on the case (I'm talking straight theory here
as the reasonable plaintiffs attorney, I PERSONALLY would never take this
case).
When people like this come in, you explain the law to them. You say
"juries like doctors and hate plaintiffs. If we are really really lucky,
and the doctor really pisses off the jury, then maybe, just maybe, we'll
get a verdict in your favor, but 70% of these cases are LOST at trial, and
this one will never settle."
Then you offer to give them the name of the lawyer referral service,
because if you try to pass this case off to another lawyer you'll liable to
open up a letter bomb!
David Crippen:
I carefully worded my case because I wanted to explore just this issue, which is simply that the physician did not do what he was directed to do by the patient, through her dural power of attorney. I agree with you that withholding CPR in this circumstance would be a risky legal proposition, not on the basis of futility, but simply on breach of duty. What is my duty? My duty is to maintain life. Now it gets sticky.
What is futility? Depends on how you define it. If you equate "life" with "vital signs", that is not the same thing as equating life with all the things we normally consider to be human. In this case, the patient is "alive" because she exhibits spontaneous vital signs and she is NOT "brain dead". Therefore, it could be construed that her life is defined by her ability to take spontaneous respirations and maintain a heartbeat, even augmented. Continuing her aggressive care cannot be construed as futile if it is "possible" that she could survive with continued aggressive care, and so therefore, futility can not be used as a reason to withhold CPR.
Hear me out now before you all start stirring the tar pot. If you define futility as something that does not accomplish it's stated goal, I would not be required to do it even if demanded. Ex: If Dr. Mattox came to me and demanded that I drill holes in his head to let out accumulated evil vapors causing his headaches, I wouldn't have to do it. HOWEVER, if you define medical utility as simply maintaining vital signs, then ANYTHING that will maintain vital signs is fair game. Ergo:
Living people exhibit vital signs
Vital signs are a direct measure of life
As long as vital signs are maintained, life exists
CPR maintains vital signs
Therefore, CPR maintains life
If the patient or their surrogate equate vital signs with the sustinance of life, anything that maintains vital signs is, by definition, not futile, and it could be construed that it is my duty to provide such care if requested by the patient
Whether or not I choose to do this is pretty much an individual decision on how I feel about doing such things, and also a decision on how much I wish to fight it out in court if someone chooses to do so.
That brings up the interesting question of whether or not it can be won in court. I brought out a point previously that most lawyers will not go to court unless they can make a LOT of money on the deal, no matter what the merits of the case. But if there are wacko plaintiffs willing to put forth this kind of case, there are surely wacko attorneys willing to give it a shot hoping to win a big emotional judgement from a sympathetic jury and establish a precedent for winning bigger in future similar cases. AND, it has to go before a jury of my peers, namely people who couldn't get out of jury duty. By and large, those people don't work for a living, and historically they like to see other people get money as social recompensation for suffering, real or imagined. And then there is the OJ jury.
Therefore, whether or not I might end up paying for some kind of breach of contract including punitive damages, is highly problematic. I am not an ethnic sports figure and there would be no exclusive jury analyst available to insure the jury was filled with ethnic females. I would take my chances on damages calculated simply on how much the jury thinks it worth.
I now ask you as an attorney, should I take a chance on all this and do the right thing? What is your legal opinion?
Guest CCM-L Lawyer X:
Before I go committing legal malpractice here, let me say this. My opinion
is based on this hypothetical, and should not be construed as authoritative
by anyone, and anyone in such a situation would be well advised to seek
competent legal counsel.
My best legal advice is to go ahead with the CPR. You won't get sued, and
while there might be adverse financial consequences for the hospital for
maintaining this woman on life support, you and the hospital will not have
to pay legal fees on top of it.
But, before that, I would say this. When a physician gets into a
doctor-patient relationship that becomes incompatible, I think he has a
right to extract himself from it where he can do so practically. I think
the proper approach varies from state to state, but long before this woman
coded, the better approach would have been to declare your professional
ethics were in conflict with the family member's demands, and that
therefore you could not do your job the way you thought it ought to be
done, and that you were withdrawing from care (if that is possible -- if
another physician would not assume care, that makes it impossible I
suppose).
But lets assume you did what you consider to be the right thing. (1) you
have malpractice insurance and it should cover you for this kind of thing.
That is why you have that insurance -- to allow you to follow your calling
and the dictates of your conscience. (2) If you maintain appropriate
limits of liability, your personal exposure should not be too extensive,
and you should have confidence that you did the right thing.
If you came to me, summons in hand, and said "I'm being sued over this,
what do I do?," my response would be "lets call up Mr. X's attorney there,
and offer to acquaint him with the law of malicious prosecution." Then I
would file motions to dismiss for failure to state a claim, and I would
file a malciious prosecution case when you were exhonerated. Sometimes you
have to send a message.
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