(This was originally published on the Lawyerist.com blog, April 2, 2014.)
It is 1:30 in the morning, the night before I mediate a major medical malpractice case. I have spent dozens of hours in the last few weeks preparing. I tend to treat a big mediation the way I treat trial — I over-prepare.
Preparation is my security blanket. I pride myself in knowing the case better than the other attorney. I spend hours crafting an opening which, if the mediation is unsuccessful, will lay the foundation for my later opening statement and closing argument in trial.
I spend hours crafting a PowerPoint, and then mercilessly pare it down the day before mediation. It isn’t time wasted — every minute spent reviewing testimony, editing video clips of stupid shit the defendant said, and anticipating defense arguments helps me to be as prepared as I can for my client.
I am as prepared as I can be for this mediation. For my client, I hope that I am successful. But ultimately, nothing I do, no outcome tomorrow, will change this fact:
My client will die.
That is an incredibly difficult sentence to write. As a medical malpractice lawyer it is a situation that I have faced and will face again. Thankfully, not in every case. The emotional toll is too great.
As the mediation has approached, I’ve slept less and less.
I toss and turn, unable to stop the wheels spinning in my head. At times, all too infrequently, the spinning is that of a fine old vintage auto, alternately accelerating and idling, changing gears and eating up the miles, chewing on a problem and arriving at the destination. At other times it is more like a lawn mower that was simply shoved into a corner of the garage at the end of the summer and pulled out the next spring. The gas is stale and the spark plug hasn’t been changed since … well, never.
In the dark my mind sputters, shudders, stalls, and smokes and ultimately ends up going back and forth over the same patch of ground, again and again, arriving at no destination. And all too often my mind is spinning like a piece of machinery in an old cartoon. It runs faster and faster and part of me watches, knowing that, at some point during the long night, it’s going to explode with a clang and gears and springs will fly everywhere. And I will emerge out the other side with my face blackened, my eyes dazed and little birdies spinning around my head.
And all because, no matter what I do, my client will die.
The cancer that is there will take him. Eventually another surgery will no longer be an option. The surgeon who has worked so valiantly, first to try to cure and then to simply prolong his life, will be unable to open him up again. After every operation the tumors recur. They pick up steam, they mutate faster, they grow like the evil beasts that they are. I have talked to those working so hard for this man. I know that eventually these tumors will simple grow so fast and so large that they will fill his abdomen, squeezing his organs, constricting them, until those vital organs fail, one by one and he dies.
What keeps me up at night is the senselessness.
Senseless in that this shouldn’t have happened. As cancers go, my client was afflicted with one that had a high probability of survival. This particular type of tumor is fairly benign in its early stages. It doesn’t tend to metastasize and it doesn’t tend to invade organs. Rather, it grows and pushes them aside, filling up any available space. It is almost always detected when it is grapefruit sized and smaller, because that pushing against organs has led to symptoms that lead to discovery of the tumor.
But in this case, despite more than 2 years of increasing complaints and problems, my client’s doctor didn’t put it together. He didn’t examine my clients increasingly growing abdomen. Instead the doctor opted to assume that each symptom presented was caused by a different benign condition. My client needed him to be a diagnostician. He needed him to be Dr. House. What he got was Dr. Doolittle. As a result, the grapefruit became a cantaloupe. The cantaloupe became a chicken. The chicken became a turkey and the turkey became an ostrich. The tumor grew to an incomprehensible size before it was discovered. And still, there was no Dr. House. Dr. Doolittle diagnosed something else.
Thankfully, the test ordered led to another that discovered the tumor.
Senseless in that, to everyone except this doctor and his attorneys, the facts lead to only one conclusion. You screwed up. Man up. Admit you made a catastrophic mistake. Pay up and let my client try to enjoy the remaining time he has until the cancer literally squeeze the life out of him. Pay up and let him travel or spend time with his grandchildren or experience something he’s always wanted to do. Pay up and let him enjoy his remaining time rather than waste even one of his dwindling days in mediation or in trial.
Instead, tomorrow we go to mediation. The dance that I am all too familiar with will be danced. The mediator will exhort everyone to compromise and exchange the uncertainty of trial for the certainty of a settlement. I will give my carefully prepared opening. The defendants counsel will tell my client that he is sorry for what has happened to him, but the good doctor doesn’t believe he did anything wrong. Still, they are there in the spirit of compromise to try to resolve this case. My client will listen to this and will bravely refrain from saying anything in response to this insult. I will restrain myself from screaming my frustration.
And the doctor will say nothing. In fact, he probably won’t even have the guts to show up. He will have consented to a settlement and will send the insurance adjuster and the lawyers to resolve his mess.
I don’t know if we will settle this case or not. For my client’s sake I hope so. I don’t want him to spend even one of his remaining days in trial, listening to the ridiculous testimony of experts seeking to excuse what the doctor did. But part of me wants to take this case to a jury and watch their reaction as the evidence unfolds, to see the expression on their faces as they see the photos of a tumor the size of an ostrich. I want to hear the verdict returned and I want to be able to expose this for the injustice it is.
I don’t know what will happen later today. I only know my client will die.
I’ve waited almost a week to come back to this piece of writing. The mediation was held the day after I wrote this. The result of the mediation is, by agreement, confidential. The doctor was a no-show. Defense counsel did his job and tried to show my client how the good doctor didn’t do anything wrong. He attacked my expert witnesses as hired guns. In fact, all my experts were full professors, heads of their respective departments at prestigious medical schools.
Through all this my client sat and listened and held his tongue. When he had the chance to speak to the mediator privately he did so eloquently and succinctly. Throughout the entire process, from the first day I met this client, he exhibited grace and dignity. I guess that is what makes knowing that he will die because of someone’s mistake all the more painful.
In recent weeks, a study has been released showing what my practice had told me for years: the most common cause of a medical malpractice claims is diagnostic errors. This infographic lays out the most compelling statistics. Knowing that this is happening day in and day out only makes it more difficult.
Originally appeared on Lawyerist.com’s law firm client service portal
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