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(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.

Postscript

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

In 1999 the Institute of Medicine published its landmark study “To Err is Human” which estimated that medical errors cause up to 98,000 deaths per year. Now, Pro Publica reports on a study in the current issue of the /Journal of Patient Safety that more than doubles that estimate.

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According to the evidence-based study between 210,000 and 440,000 patients die each year as a result of medical errors. This would make medical mistakes the third-leading cause of death behind heart disease and cancer (all cancers combined).

I’d like to say that I’m shocked by this finding, but I’m not. Unfortunately, doing what I do every day I see the mistakes constantly. You would think that I see the bad medicine and not the good, but that isn’t entirely true. In fact, what I see most often is very good, even heroic, medicine every day. The care that is given to try to correct the mistakes made, usually by others, is often incredible. But the mistakes that set the patient down that path are often clear and infinitely preventable.

Attempts to shield doctors and hospitals from the effects of their mistakes, such as attempts to limit the damages that can be awarded in medical negligence lawsuits, are misplaced. Instead, the focus should be on eliminating the mistakes, through the implementation of processes and procedures to eliminate the most frequent errors. And true oversight by state regulators on physician licenses and hospital accreditation is also needed.

It makes sense that the focus should be on eliminating the problems and helping the victims of medical mistakes, not on shielding the negligent.

CNN reports that a popular inflatable pool slide, sold by Wal-Mart and Toys R Us, has been recalled due to deaths and severe injuries.

The U.S. Consumer Product Safety Commission has order the recall of the Banzai Splash inflatable pool slide. The slide can partially deflate, causing serious injuries. At least one death and one incident of paralysis have been reported. Additionally, the slide is unstable and carries inadequate warnings and instructions.

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If you or a family member has been injured as a result of using one of these slides, please call our office immediately for a consultation. You must act quickly to protect your rights. Contact us at 1-800-557-8176 or click here.

Consumers Union, a national non-profit organization, has just released a new report that follows a landmark report of 10 years ago. Unfortunately, the new report isn’t good news.In To Err is Human – To Delay is Deadly, the group reports that more than 99,000 people die each year in the United States from medical errors. This is up from the figure of 98,000 deaths per year reported by the Institute of Medicine in 1999. In the the intervening 10 years, we have made no progress.What are some of the reasons for this disturbing lack of improvement? Consumer Union reports that, among many reasons, few hospitals have adopted well-known systems to prevent medication errors and that the FDA rarely intervenes. Medicine, as an industry has failed to adopt transparent systems for reporting errors. The medical industry has failed to raise standards for competency of doctors, nurses and other health care professionals.Consumers Union makes this disturbing analogy: 99,000 deaths per year is equivalent to a jumbo jet full of passengers crashing and killing everyone on board every other day. In no other industry would Americans allow these kinds of errors to continue to occur.I struggle every day to bring accountability to those who have injured or killed patients. If you or a family member are a victim of medical negligence, contact me at stlpersonalinjury.com.

The Houston Chronicle reported today that three deaths from smoke inhalation as a result of a 2007 Houstan office fire were the result of “pollution,” as in smoke inhalation. The very idea of this is ludicrous in the extreme. The insurance company is trying to get out of paying for the losses suffered by three families due to their family members deaths. Fires cause smoke, smoke contains pollutants, to be sure. But to say that death caused by smoke inhalations is a result of pollution is simply beyond belief. Keep this in mind next time you hear a story about a crazy lawyer suing for a million dollars for a lost pair of pants. For every “missing pants” case, there are literally thousands where insurance companies have adopted these tortured readings of their own policies in an attempt to avoid their responsibilities.

In the most recent 3 years of reported data, more than 94 people have died in ATV accidents in Missouri. //atvsafety.gov Nationally, more than 1200 deaths were reported as a result of ATV accidents.If you or someone you know has been injured as a result of an ATV accident, you should contact The Law Offices of Todd N. Hendrickson. We can investigate the accident and determine if there is an applicable product recall or safety violation. Many people are completely unaware of the Missouri safety laws regarding ATV ridership. These and other factors must be investigated in the event of an ATV accident.Contact Todd N. Hendrickson for a free consultation.