Future Forum: Guilt, Innocence, and the Death Penalty 
Oops!
The doctor makes his cut. The lawyer and the insurance man take their cut. You just get cut.
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Why all the fuss, then? It is true that malpractice rates are soaring—in some specialties like neurosurgery and orthopedic surgery they have quintupled in five years—but the real problem is deeper than that. Medicine is a high-risk profession, but it has always been high-prestige as well. Their mystical reputation as healers has enabled doctors to maintain public confidence and respect through the years. But the essential element of that equation was personal contact. Now medicine is changing. It is increasingly specialized, increasingly impersonal, increasingly costly, and increasingly arrogant. Even today hardly anyone sues his family doctor for malpractice, but the family doctor is less and less a major factor in modern medicine. The great bulk of malpractice claims comes in cases where the ties between doctor and patient are minimal or nonexistent, and this is what doctors fear the most, because that is the direction medicine is heading. The huge rise in malpractice claims doesn’t mean that doctors are getting less competent; it only means that the public is willing to look at its physicians as mere mortals capable of error like everyone else. That’s why the malpractice issue for doctors is as much a psychological crisis as a financial one.
It should be remembered, though, that doctors don’t win all the malpractice cases, and for a very good reason: there’s an awful lot of malpractice going on out there. One oft-cited federal study concluded that the principal cause of the malpractice crisis is malpractice. Doctors and hospitals are usually sued because they ought to be sued. Says State Board of Insurance Chairman Joe Christie: “The way to get the rates down is to count the sponges”—a reference to careless surgeons who sew patients up with various medical implements still left inside the body.
Some people in the medical community have argued that there is no malpractice. TMA lobbyist Ace Pickens says that the Medical Protective Company, which writes 60 per cent of the malpractice insurance coverage in Texas, hasn’t seen a case of actual doctor incompetence in 75 years. (Of course, Ace’s law firm represents both the TMA and Medical Protective, which have long enjoyed an extremely cozy relationship, so it’s not unusual for them to toss bouquets at each other.) Others tell a different story. Dr. Robert Derbyshire, an official of the New Mexico Board of Medical Examiners and a longtime crusader for stricter medical discipline, claims that one of every twenty doctors in the U.S. is incompetent. Study after study shows that millions of unnecessary operations are performed in the nation every year, resulting in more than 20,000 deaths. As many as two-thirds of all tonsillectomies and one third of all hysterectomies are unnecessary, and a Harvard Medical School survey found that in half of several thousand pelvic operations performed on women in New England, healthy uteruses were removed.
Nurses and hospitals come in for their share of the criticism. Rachel Gann’s nurse in Georgia, Carol Banning, told me, “There is a tremendous amount of nurse malpractice. The rule in record keeping is ‘cover your tracks.’ Recopy sheets if necessary. Doctors do this automatically and nurses are instructed to.” As for hospitals, 30 per cent of them account for all malpractice claims, and operative mortalities run four to five times higher in some than in others. Of course, some hospitals perform higher risk operations and can be expected to have higher death rates. Still, there is no doubt that some hospitals are safer than others. Perhaps the most staggering statistic in the entire malpractice area is one contained in a U.S. Health, Education, and Welfare study: as many as 7.5 per cent of all hospital patients are injured during the course of their care. That projects to almost 2.5 million injuries a year, and nearly a third—750,000 people—are injured due to negligence. Every one of them has the basis for a malpractice claim, yet only 6 per cent of them, or around 45,000 victims, actually seek redress.
These are the cold statistics. If anything, the reality of a malpractice case is even harsher. The family of a Midland banker sued Houston’s Methodist hospital for giving him two transfusions of Rh-positive blood after surgery, alleging the hospital knew or should have known that he needed Rh-negative blood. Jaundice, kidney failure, and a large settlement followed. The favorite horror story among malpractice buffs involves a Sacramento, California, doctor named John Nork. Between 1963 and 1970, Dr. Nork took Equanil, Preludin, and Donnatal and became addicted to them. In the 1973 trial of one of 25 malpractice cases against him, Dr. Nork admitted performing at least 36 unnecessary back operations, many of which permanently maimed his victims. He testified that the drugs rendered him incompetent and caused him to treat his patients improperly. Several of his patients nonetheless testified for him as character witnesses.
One of the largest payments in Texas history came in a Houston case that involved a 24-year-old woman represented by trial lawyer Jim Perdue. The version of the case that follows is mostly the plaintiff’s view of the facts, as taken from court records, but many of the facts were accepted by the defense attorney:
On February 15, 1970, Carole Davison went to the Homestead Clinic in northeast Houston and complained of discomfort in her abdomen. She was given a prescription and sent home. Six days later she returned and her examining physician diagnosed her condition as jaundice. He turned her case over to a surgeon who told Carole she had obstructive jaundice—a stone of obstruction in either the gall bladder itself or the duct leading into it. The surgeon decided to remove her gall bladder and scheduled the operation for March 2.
When Carole entered Homestead Hospital—which, like the clinic, was owned by her examining doctor—she no doubt noticed a number of young people walking around wearing white coats, looking and acting like doctors. In fact they were chiropractic students who passed themselves off to the patients and the public as MDs. Although federal regulations require that hospitals like Homestead which receive Medicare funds use only licensed physicians as assistant surgeons, a first-year chiropractic student was assigned to assist during Carole’s surgery. None of this was known to Carole or her husband.
The hospital also told Carole that anesthesia would be administered by an anesthesiologist—a licensed physician—but this was assigned instead to a nurse anesthetist. Proper medical practice dictates that the person supervising anesthesia must see the patient at least one day before the surgery, review the medical records, and become familiar with the case; but the nurse anesthetist didn’t review the records or discuss the case with the surgeon and saw Carol for the first time thirty minutes before the operation. The reason the nurse hadn’t run the routine preliminaries was that for 48 hours immediately prior to Carole’s surgery, she had been on duty at St. Joseph hospital, administering anesthesia to women in childbirth. One of the nurses on duty said later that the exhausted anesthetist has discussed delaying or rescheduling the operation, but the surgeon decided to proceed.
That decision had fatal consequences for Carole. During major surgery, anesthetic drugs are supplied in such quantity that they completely relax the muscles of the respiratory system, rendering the patient unable to breathe on his own. Every few seconds the anesthetist must press a “breathing bag” in order to provide oxygen for the unconscious patient, while at the same time closely observing the patient’s vital signs—pulse, heartbeat, blood pressure, respiration, and color. Color: it was the circulating nurse, not the anesthetist, who first noticed Carole’s hand turning blue. Then she noticed the anesthetist was asleep and not pressing the breathing bag. She touched the anesthetist’s leg; the sleeping nurse awoke, realized the patient was in trouble, and started pressing the breathing bag. No good. The patient wasn’t receiving any oxygen. It appeared that the endotracheal tube was blocked, but various efforts to remove the obstruction failed. Carole’s heart stopped beating. Eventually the surgeon and chiropractic student succeeded in restarting her heart, but Carole’s body was deprived of vital oxygen for several minutes, resulting in permanent and irreversible brain damage. From then on she was decerebrate—conscious, but unable to move or talk. After being discharged from Homestead, she spent a few months in a charity hospital, ending up in a nursing home, where she did little more than lie there and stare, shrinking up like a prune. In 1975 she died.
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