Medical Malpractice and Tort “Reform”
I’m riding my white horse today.
As a lawyer, I know that people get harmed through no fault of their own by other’s people’s negligence and failure to pay attention to what is important. Whether it’s a car accident, a doctor who ignores symptoms, or a vicious dog who attacks a child, the person who is hurt should not have to pay the price for the injury. The court system cannot give back the things these people have lost: time away from work which leads to the loss of their careers, the pretty face that existed before the dog mauled the four year old girl, the mother who was killed by a drunk driver, living without constant pain caused by the injuries in the accident, the cheerful contributions to her family that the coma patient used to make before the doctor ignored the pulmonary thrombosis that led to her vegetative state.
When lawyers screw up a case, clients want to sue them and recover their losses. And they should. They should also be able to sue doctors, negligent drivers, and other people whose failure to pay attention has hurt them.
Unfortunately, “tort reform” usually means “medical malpractice lawsuit reform.” People think that lawyers are mean to doctors, who are just doing their best to heal people who probably can’t be healed in the first place.
That is not the case.
Look at the statistics in a recent Huffington Post article. Only 2-3% of ALL medical malpractice results in a lawsuit. That’s not 2-3% of medical care cases; that’s 2-3% of actual malpractice situations. Is such a number of lawsuits really excessive?
Caps on punitive damages is the issue Obama is expected to embrace, though. Punitive damages don’t reimburse someone for money they are out. Compensatory damages cover that. Punitive damages are intended as punishment – hence, the name “punitive.”
Why would someone require punishment for a screw-up? Think about how we decide how and whether to punish our children for negligence. Let’s say that Susie and Jenny are at a birthday party for one of their classmates and it’s cake and ice cream time. Susie gets excited explaining something and throws her arms wide, knocking over Jenny’s glass of punch, spilling it on her and ruining her party dress. Of course, Susie has to apologize to Jenny, and she has to get Jenny another glass of punch. She has to help clean up the mess, and if Jenny’s party dress is expensive Susie’s mom might offer to pay for it to be cleaned. These actions are compensatory in nature. They compensate Jenny for the loss of her glass of punch, her clean and dry dress, and her hurt feelings.
If Susie knocks the punch over because she was dancing on the table, though, Susie will be punished. Punitive action will be taken to ensure she doesn’t dance on the table and spill someone’s punch again.
Maybe we put Susie in time-out. Maybe Susie gets a spanking. Maybe Susie is grounded from her Barbies, or she is not allowed to go to any parties for the next month.
The point is not that Susie is being punished for doing something intentionally. She did not. She did spill the punch while being grossly negligent, though. She should have known that if she danced on the table where Jenny’s punch sat, the punch would spill.
Punitive damages in these cases are intended to stop gross negligence. They are not appropriate where there is no gross negligence – where the punch spills accidentally due to something unforeseen or where the negligence was minor. Punitive damages are for those egregious cases where the doctor ignored clear warning signs of his patient’s impending doom and did nothing.
Punitive damages are not awarded lightly by any jury. If a jury awards an amount in the millions, it is because the defendant in those medical malpractice actions has the resources to pay such an amount, even if it hurts. Punishment is not intended to kill, and punitive damages that bankrupt a company or a doctor aren’t appropriate. Punitive damages are supposed to hurt, though – just like being grounded from birthday parties hurts. And just like Susie, the idea is that punitive damages will hurt for a little while, but the defendant will get over it – hopefully to go forth more carefully in the future.
Après la Chirurgie
Me ‘n’ Esmeralda, in happier times
Did you hear? I had a softball-sized tumor removed from my neck three weeks ago.
I first noticed it about a year ago and shrugged it off, thinking it was a little lipoma that wasn’t any big deal. Then I began having trouble turning my head. The lump was getting bigger – about the size of a golf ball – and I couldn’t comfortably wear turtlenecks or even mock neck shirts. I named my lump Esmeralda, and patiently waited for her to gain sentience.
When Esmeralda started aching, I decided to go to the doctor. I hate going to the doctor, especially when I think I’m going to get bad news. I’ve already had cancer twice, so having a tumor made me think that number three was here and if I pretended it didn’t exist, it would go away. I’m a very bright girl in these matters, so I knew exactly what I was doing when I ignored the wretched thing for so long. Really.
My doctor looked at it and said that there was no question that it needed to come out. Clearly it was causing me trouble, and even if it was probably just a lipoma and not something devastating, it was in a bad place. And, he said, even for a lipoma it was, well, kind of big. There was definitely an asymmetry to my non-gazelle-like neck. A bump about the size of half a golf ball hung off the side it.
I knew all this before he told me. I knew he’d have to refer me to a surgeon. That’s why I was there, right? So, deep breath, I got the referral and made the appointment and went the next week to see when I could divorce myself from dear Esmeralda, who I was beginning to think of as my dicephalic parapagus conjoined twin.
Me ‘n’ Esmeralda before we started misspending our youth
He sent me to an otolaryngology clinic. Apparently, otolaryngologists are the guys who cut on people’s necks when the spine isn’t involved. I was glad my spine wasn’t involved, although I did wonder if that was because I simply didn’t have one. What kind of person, being possessed of a spine, was afraid of what was probably just a harmless little lipoma?
At the otolaryngology clinic, I got a CT scan of my neck. Back in the examination room, the surgeon pulled up the scan on the computer screen. “Wow, it’s really big!” he exclaimed. He showed me what to look at. The difference in the two sides of my neck were obvious. One side of the screen looked like what you’d think a neck should look like on a CT scan. By that I mean it had not much flesh and a big amount of bone. At least, that one side did. The other side? Well, it was different. Waaaay different.
There was a vast blackness that took up a lot of space on the right half of my neck. It looked as though Darth Vader himself had taken up residence there and his helmet was pushing things around. The doctor pointed out how my muscle was stretched over this dark growth, how my nerves and blood vessels were pushed out of place, and how much space the thing took up. “It’s sooo biiiig,” he said again. And again. And yet another time, just in case I hadn’t heard him before.
That’s right. Only I could have a freakishly large tumor in a place with as little flesh as my neck and not notice it for years on end. Evidently, I can’t see a damn thing with my eyes full of sand.
Lipomas usually grow just right under the skin and are fairly simple to remove. In fact, unless they become bothersome, it’s not necessary to remove them at all. Mine was different. It was under the muscle, which, the doctor graciously postulated, was probably the reason I had never realized it had been growing there for so long. It was also pressing on important nerves and blood vessels. There just isn’t a lot of room in a neck, and there’s a lot of important stuff there. Like, say, the carotid artery, which feeds blood to the brain. Which my lipoma had shoved out of place.
In fact, it had shoved things so far out of place that I was in danger of soon looking like the Elephant Man, Joseph Merrick.
Fetus in Fetu: Sanju Bhagat
The problem was, the size and location of the tumor meant that a different doctor needed to do the surgery. Someone who specialized in cancers of the head and neck. Swell. The”C” word again. Fortunately, I liked the new surgeon. I liked the old one, too, but the new one was quick-witted, funny, and personable. And probably married. (sigh)
My family rallied around me. My sister went with me to the pre-surgery appointment, my mom took me to her house after the surgery so I could be pampered. Jack came to see me that night. I felt pretty raw, and my throat, complete with drainage tube, wasn’t pretty either.
See?
Three weeks later, I’m still a little tired, but I’m fine. Some mornings it’s harder to shake off the latent effects of the anesthesia than others. Of course, staying up til 1 a.m. to finish a novel I can’t put down sort of contributes to the problem, but I’m gonna do what I’m gonna do.
Brent Weeks is a new, young author and he has time to grow. I can’t wait for his next offering.
*My son, Jack, has demanded credit for cajoling me into reading this series. Here you go, son.
So now I have an awe-inspiring scar on my throat, and I can come up with plenty of tales to explain its presence.
I’ve told the story of Jack the Ripper to my wide-eyed nieces and youngest nephew (they’re 11, 8, and 6). I have the scar to prove that I narrowly escaped him.
Next I plan to work up a tale of the Bride of Frankenstein for their entertainment. I’ve already got the white hair at the temples going on, so between that and the scar, I’m not going to have to spend a lot on costuming.
The surgeon said that the tumor had to have been there for a very, very long time to be as large as it was. What I want to know is how the hell a softball manages to hide in a neck for years and only show up, finally, as a golf-ball sized bulge.
The size of the thing was apparently really impressive. Every time I call his office his nurse exclaims, “Oh, you’re the one with that really huge lipoma!” Every time. Every stinkin’ time. I’m beginning to wonder if I ought not to have saved the damn thing and taken it on the road. I could have made a living in the sideshow as the girl with the softball in her neck.
“It’s soooo big!” the statement is made in the context of, well, first of all, a man. And it’s said by an admiring woman, or at least one that is either thrilled or terrified at the prospect of something that huge… you know. I’m a woman and male doctors have been saying “It’s soooo big!” to me. It’s unsettling.
Maybe I should have had the thing cut in two and used it for a boob job.Next time, if there is a next time, I’m going to think that through carefully.
Migraines
I have chronic daily headaches.
My migraines were diagnosed when I was 9 years old. I don’t remember the first one I had. I have always had what we called “sick headaches.” My head would pound to the point where I couldn’t speak or think, and my stomach would lurch. Then I’d lose everything I’d eaten in the last 24 hours. It might last a few hours, or it might last 3 days. However long it lasted, the hours and days were simply written out of my life.
My migraines came at irregular intervals. I would get three, four, or perhaps five a year. They were manageable with pain medications, which would help me to sleep despite the pain. Without the meds I would lie curled up and moan. Tears, unbidden, would leak from my eyes, which were screwed tightly shut to ward off light. I was prescribed codeine.
When I was in boarding school no drugs were allowed in our rooms. Even aspirin had to be deposited with the school nurse, who was there only from 7 a.m. to 5 p.m. The nurse didn’t believe my headaches were real. She thought I was a druggie teenager seeking narcotics when I asked for my medication, so I kept a bottle of pills in my room and another in my purse. Had they been discovered, I would have been suspended or maybe even expelled. They were the only way I could even partly function when the headaches were their worst, and sometimes even then I couldn’t. I hoarded and guarded those pills. There was no way they were going to be used recreationally. Those pills were more precious than diamonds.
The world often seems brighter, louder, more active, and more intense just before a migraine hits. Sometimes before the pain begins colors suddenly take on an energetic quality, smells become more pungent, and sounds seem louder. Activity around me makes my heart beat faster. I don’t perceive it as a threat, just as too much energy that makes me uncomfortable or edgy. I get irritable. This is my “aura.” I don’t hallucinate. I don’t see anything that isn’t really there, unless the increasing intensity of my senses counts.
Sometimes a migraine hits with no warning at all. I may be calmly walking to my car and be slammed with a 2×4 to the brain. I fumble in my purse for the triptans – drugs that are designed to abort a migraine – knowing that it may be an hour or more before the pills begin to work. Another slam, and I wonder if I can drive my car home. I have to. That’s the only way I can get there. Digging back into my purse I come up with the Vicodin ES my doctor prescribed for pain that isn’t alleviated with the non-narcotic triptans. It still takes an hour before I can drive, and I am thankful I don’t have to drive far. It’s not just for my sake, either.
I call these headaches “Mike Tysons.” With the first sudden blow I am reeling; with the second I am almost unable to move, talk, walk, or look at anything. I curl into a fetal position in a small, dark, cool place and wait out the pain. I am oblivious to my surroundings except for the sounds and lights that assault my senses.
A car accident a decade ago made them worse. The headaches I got perhaps five times a year suddenly became several times a month, then several times a week, and now are almost daily.
My triggers include physical stress to my cervical spine (sleeping wrong on my pillow), soy, corn, preservatives, artificial sweeteners, the weather, seasonal allergies, irregular sleep, stress, irregular meals, alcohol, and aerobic exercise. Being in a crowd where I can’t hear well causes a headache, too – I’m talking about football games, crowded parties, and noisy restaurants.
Emotional surges can induce a migraine. When I was told my father died, one hit me immediately. Great joy can induce one, too. Winning a tough case makes me feel wonderful, and is always followed in just a couple of hours by a splittng headache. The shouts of boys playing inside on a rainy day, the birth of my favorite oldest niece and both of her siblings, a favorite song cranked to top volume, the satisfaction of a difficult job done well, the pleasure of a story completed after wrestling with the plot and characters for so long – all of these things make me feel wonderful, and all leave me with a hatchet striking my frontal lobe repeatedly.
In college, I would always get a migraine after the exam or after the term paper was turned in. I call it my neurological let-down. Once the period of stressful high productivity was over, my body and brain knew they could rest. Before I embarked on another project, a migraine would force that rest on me. The same thing happens still. I finish a brief, I’m through with a settlement conference, I leave a hearing and my head throbs. The stress is over; the migraine is just beginning.
I lose the ability to speak coherently. My brain fumbles for the right words. My fingers fumble with the Imitrex packaging. What sociopath at Glaxo-Welcome designed that packaging, anyway? It’s hard enough for someone without a migraine to open it, but someone with a migraine, who suddenly has the strength of a kitten and the coordination of a newborn has an extremely difficult time getting to the stupid pill!
Migraineurs know exactly what the ice pick in the eye feels like. We have experienced a head that literally feels about to explode, and we pull our hair in an effort to force the explosion to completion or we squeeze to hold it in. Other time we feel the vise tightening around our skulls, squeezing until we think the bones must shatter… but there’s nothing there.
Migraineurs have experienced soft pillows that are too hard. Walking up or down stairs is excruciating. Any movement causes a swell in the degree of pain, a giant THROB that suppresses all reason. Each footstep across a room creates those throbs, as does turning over in bed and sitting up to accept the glass of water and pill from someone kind enough to bring it to me. Turning one’s head during a migraine can be agony. Every migraineur understands exactly why decapitation would be a relief.
I’ve tried biofeedback, meditation, acupuncture, chiropractors, cupping, Chinese herbs, oregano, and magnesium supplements. I’ve tried several drugs that work for others, including Neurontin, Topamax (the gastro side effects of this drug were horrific), Verapamil, and Atenolol (Beta Blockers).
I’ve stopped working full time to reduce my stress levels, and moved my law office home so that I can take a nap when I need to. My bedroom is painted a dark mossy green and I have blackout curtains. I am careful to take cases that will not cause undue stress. I got out of a stressful marriage. I don’t drive more than an hour at a time because even on cloudy days the glare gets to me. Forget driving in the rain, too – windshield wipers are like strobe lights to me. They induce a headache in a very short time. Even the long shadows falling on the road through the trees in the late afternoon are enough of a strobe effect to set me off, and it only takes a few minutes.
In an effort to avoid soy and corn additives to food , I am now make almost everything I eat from scratch – I can’t eat any of the prepared meals from the frozen foods section of the grocery store, and practically no canned or packaged foods other than fruit or vegetables. My bread machine gets a great workout. I read food labels religiously.
My migraines are manageable with my current regimen of drugs, which includes an anti-seizure medication. Triptans like Imitrex, Maxalt, Zomig, and Relpax usually break off the headache. I use Vicodin ES for extra help in reducing the pain. I use Phenergan suppositories to quell the nausea. I take a mild muscle relaxer before bed to help keep my neck supple. I use ice packs, heating pads, and naps. I listen to cool jazz even though I really want to hear Foo Fighters. I never go anywhere without my medications. The pain killer, the triptans, the anti-nausea… I am a traveling pharmucopia.
I have also discovered a fantastic massage technique. It’s expensive, and my insurance doesn’t cover it, but once a month I go to a masseur who does myofascial release. I follow that appointment with a deep muscle massage. I have found that the massages not only help relieve muscle tension, but they help relieve stress.
Learning to live with chronic daily headache doesn’t mean giving up the fight against it. I go to my neurologist every three months, and I am always up for trying new procedures, drugs, supplements, and techniques to alleviate the pain and prevent the headaches from happening.
I am realistic about what I can do, though. Because I can’t be relied upon to be at functions (crowds stress me, and a headache is guaranteed), I do the behind-the-scenes stuff at my son’s school and for two historical societies I belong to. I wish I could do more, but I have learned the hard way that I usually have to say “no.”
Even the things I want to do will be torpedoed by a migraine. A coffee date with girlfriends, a dinner out, plans for the theater – all of these get derailed by migraines occasionally. My friends don’t understand. It’s just a headache, after all.
I’ve had people tell me, “Oh, you have a magnesium deficiency.” Nope, sorry. I tried magnesium and saw no appreciable difference in the frequency or severity of the attacks.
“Oh, you need to relax more,” I’m told. I have eliminated all possible stress from my life. It’s not just stress.
If I could tell you the number of times someone has told me about Topamax, or fever few, or acupuncture, or some other remedy! And even friends who suffer common migraine with aura don’t seem to get it. Mine occur almost every day, not once a month with my period (that stopped at 32 when the plumbing got yanked for cervical cancer). Hearing that this treatment or that treatment will “definitely” work amounts to a platitude. I want to say to them, “Don’t condescend to me. You have no idea what I’ve tried and what I’ve gone through.”
I live life one day at a time. The rare day without a migraine – today! – is a treat. I accept it with cautious pleasure. Tomorrow the drugs may work, and I’ll be able to function. The next day I may be in bed, wishing the Red Queen’s executioner would hurry up.
Fear of Addiction
Momma Dish wrote a blog about addiction that touched my heart. A friend of her children’s died as a result of his use of mind-altering substances.
I have a cousin. He’s 66. He’s a medical doctor. He is currently serving six concurrent one year terms in the Berks County, Pennsylvania, Prison for six DUIs he had in the last 14 months. Two of the incidents where he was arrested involved accidents. In one accident someone was hurt, although I’m not sure how badly. It’s amazing to everyone in the family that he hasn’t killed himself yet. He lives alone when he’s not in jail. He drinks alone.
I had an aunt. She was an Olympic class equestrian. She and her horse fell in the early 1970’s at a practice for the trials for the Olympics. Her horse had to be put down and she never rode competitively again. She took solace in a bottle and in the prescriptions she was given. For more than 30 years, alone and angry because her dreams were dashed, she drank and medicated herself. She was hospitalized at least 20 times for detoxification, overdoses, and various problems with her health due to her alcoholism. When she died her blood alcohol content was .043. Yes, she drank herself to death.
Alcoholism runs hard in the genes of my family. I can point to almost any member of my grandparents generation and say, “He was an alcoholic” or “She was an alcoholic.” The alcoholics are fewer in my parents’ generation, but the ones that are alcoholics are bad ones. I remember swearing to myself growing up that I would never drink alcohol.
I did drink. In college I realized that I drank too much and too often. I thought about the alcoholics in my family. I slowed down. I slowed further in law school, and then when I married and had a baby I realized how hard it was to change a smelly diaper with a raging hangover. I slowed drinking even more.
In 1997 I was in a serious car accident. As a result of that accident the migraine headaches I have had all my life became worse. Ten years later I have a condition called “Chronic Daily Headache.” I have to take drugs to combat it. Most of the drugs don’t alter my mind, but occasionally I have to take muscle relaxers and painkillers.
Because of my headaches I have stopped drinking alcohol almost completely. Two drinks and I can guarantee myself a migraine. The margaritas aren’t worth it. I may go out with friends and sip one drink for three hours. I may drink it faster then switch to soda water. I never have more than one drink any more.
But there’s another problem. You see, addictive behavior runs in my family. And I have prescriptions for addictive medications for the pain I have almost daily.
I am afraid of these drugs. I hoarde them; I use them sparingly. I don’t want them to control my life.
Yesterday and today have been a bad days. My headache started early yesterday, but I was focused on something I was doing and didn’t take a break to get my Imitrex. By the time I was through with my project, I could barely sit at my desk. I wanted to curl up under it in a fetal position. Unbidden, tears fell down my cheeks. I staggered downstairs. The movement exacerbated the pain. I could barely think.
I fumbled for the device that contains the most powerful dose of Imitrex. It’s an injection, and thankfully it works quickly. I can use the injection no more than twice a month. I use it only when I can’t bear the pain. By the time I reached for the device, I was unable to form a coherent sentence. My thoughts were disjointed, and overlying it all was a little girl crying plaintively in my mind, “It hurts! Make it stop!”
I gave myself the shot. I took a muscle relaxer. I went to bed. I slept for three hours. When I woke, I still had a horrible headache. I took a painkiller. My head still hurt. Yet I still had to function.
I am a mother; I run a business. I have to take care of myself so I can take care of my child and my office.
I worry that I will become addicted to the painkillers. I worry that I take too many prescription drugs. I take three pills every morning in a futile attempt to control the neurological aspects of my migraines. They have helped. I shouldn’t say it’s futile. The headaches would be worse if I didn’t take them. Then there are the triptans – the drugs that actually stop the migraines. I can’t take them more than three days in a row, or I risk rebound headaches.
On days like today, when my head feels like it is split in two and one side is three times the size of the other, when a throbbing pain goes from above my left eye over the crown of my head and down into my left shoulder blade, when the pain is so bad I can’t sleep even with the soporific effect of the drugs, I despair of ever feeling good again.
The drugs don’t make me feel good. They just mask the pain. It’s still there; I just don’t care as much. I can laugh and joke and carry on a conversation with the drugs. I hate them.
I am terrified of addiction.
Brie: It's What's For Breakfast 
