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.
Patients in doctors’ waiting rooms last fall were surprised to find some new reading materials stacked neatly beside the inevitable piles of National Geographic. Thoughtfully supplied by the Texas Medical Association (TMA), the medical profession’s trade organization and lobby, the little pamphlet shrieked its warning:
“No Texan can escape this epidemic . . . malpractice insurance rates here are out of control. They’ve soared as much as 600 per cent in the last five years . . . The insurance crisis is already having a crippling effect on health care in Texas . . . The threat of a severe doctor shortage is growing in Texas . . . It’s the most frightening kind of medical crisis because it threatens the life of medicine itself.”
Alarmed? Don’t be. Most of the foregoing is greatly exaggerated. Far from being out of control, malpractice rates for the first time in several decades are under some semblance of regulation. And though there may be a doctor shortage, it has little to do with malpractice: there just aren’t enough openings in Texas medical schools to handle all the qualified applicants, and more doctors are graduating from medical schools than can fit into residency programs. The TMA itself is requesting the Legislature to create 300 more residency positions. Still, even if malpractice isn’t the gravest crisis medicine has faced since Hippocrates first spoke his oath, it is a thorny problem. Neither doctors nor lawyers nor insurance companies are happy with the current situation, but each group is leery of any solution that might favor one of its rivals. It is a classic fight between large and politically powerful special-interest groups, and as usual the public is caught in the middle.
Rachel Gann wouldn’t be old enough to understand such things, even if she were alive today. In 1973 Rachel was left a quadriplegic at the age of four after an automobile accident in Canton, Georgia, which killed her mother. Her phrenic nerve, which affects breathing, was also injured, necessitating the use of a special respirator. Confined to an Atlanta hospital, Rachel was able to watch Sesame Street on television, learned to tell time, and was generally considered an alert and responsive child. Nonetheless, testimony would later show that hospital officials were pessimistic about her chances for survival.
In 1974 she was transferred to the Texas Institute for Rehabilitation and Research (TIRR), a highly respected Houston facility known for taking high-risk cases. TIRR also used a respirator, but unlike the Atlanta hospital, it did not use an alarm to warn the staff in case the respirator accidentally became disconnected. TIRR preferred instead to rely on personal supervision by nurses who were to be in the patient’s room at all times.
After Rachel had been at TIRR a week, her respirator became disconnected during a nurses’ shift change. Of the two nurses in Rachel’s room, one was at the medication area filling out forms for the shift change and had her back to Rachel. The other nurse was administering to another of the four patients in the room and also had her back to Rachel. A period of time passed—the length was later disputed at the trial—during which Rachel received no oxygen. She went into cardiac arrest and suffered severe and permanent brain damage. Houston attorney Mac Gann (no relation) sued TIRR on behalf of Rachel for well over $1 million.
The fundamental burden of the plaintiff in a malpractice case is to prove negligence. It sounds easy, but there are two major obstacles. First, all the records are in the hands of the defendants, and both doctors and hospitals have been known to do a little editing before turning them over for scrutiny. In Rachel’s case, her lawyer got upset when the hospital had a doctor review the records before it released them; then it delayed the release for four weeks and charged him $250 for the privilege of copying them. The second problem is that in order to prove that the hospital was negligent, Mac Gann needed an expert witness who could testify what acceptable practices were. But, as in all malpractice cases, expert witnessed can come only from the medical profession itself, and most doctors are loath to testify against other doctors. Add to that the antipathy most doctors feel toward lawyers suing for malpractice, and it becomes easier to see why lawyers claim there is a “conspiracy of silence” among doctors not to testify in malpractice cases. That in turn has led to the rise of a modern legal phenomenon: the so-called “traveling troubadours.” These doctors are professional witnesses for malpractice plaintiffs who advertise in lawyers’ magazines and travel the country, sometimes receiving fees of $1000 a day. Some attorneys for defendants in malpractice cases contend that there are doctors who literally make their living this way.
Mac Gann based his case on the contention that the hospital was understaffed and that this, coupled with its failure to use an alarm on the respirator, constituted negligence. He as well as TIRR’s attorney Bill Payne criss-crossed the country seeking expert witnesses, taking depositions, inspecting rehabilitation facilities, questioning users and critics of the alarm system, and reading over 3000 pages of medical records. At the trial Gann contended that Rachel’s respirator had been disconnected for three to four minutes; the defense countered that the time span was less than a minute. Payne contended that the hospital was less well staffed than usual, but argued that it still had a lower patient-nurse ratio than other Harris County hospitals. But the real battle centered around the alarm. Payne said the system resulted in a lot of false alarms and that nurses tended to ignore them as a result. He found cases in the Atlanta records of children who almost died because the staff ignored what they thought to be false alarms. Furthermore, Payne claimed that Rachel’s original spinal cord injury was so severe that she had already exceeded her life expectancy, and that the brain damage may well have begun before the respirator was disconnected.
The critical point in the drama occurred offstage, when the hospital’s insurance company offered to settle out of court on two conditions: first, that Rachel’s $100,000 hospital bill be paid, and second, that Rachel be moved from TIRR immediately. Gann and Rachel’s father faced an agonizing choice. They could take the $300,000, which might or might not be sufficient to take care of Rachel’s continuing medical needs (care of a paraplegic usually runs $150 to $200 a day; without deducting for attorney’s fees or rising hospital costs, the settlement was enough for less than six years) or they could gamble on an all-or-nothing decision by the jury. Gann’s expert witnesses and several nurses told him that if Rachel left the hospital and was transferred to a nursing home, she could not get the kind of care she needed and would not survive long. TIRR countered that Rachel was taking up bed space that could be used by patients who could still be helped and that the nonprofit hospital, which is dependant on charitable contributions, was being denied necessary funds as long as Rachel’s bill went unpaid.
Gann chose to reject the settlement offer; the case dragged on for four weeks, and the verdict was… not guilty. No malpractice. No damages. In July 1976, Rachel Gann was transferred to a small-town Texas nursing home. She died two weeks later.
The sad case of Rachel Gann illustrates one of the main things to keep in mind about the malpractice “crisis”: defendants—the doctors—win most of the time. Doctors fear that juries are overly swayed by their sympathy for a man in a wheelchair and will compensate them overgenerously, but the statistics tell a different story. Of the claims that go to court, doctors win 97 per cent. A number of those are thrown out by the judge long before they ever get to a jury, but even in the remainder of cases, doctors win four of every five verdicts. Bill Payne says, “Juries usually give the doctor the benefit of the doubt. This is unquestionably true in rural areas. When cases go to litigation, there’s a real doubt about whether the doctor was negligent. Legitimate claims are usually settled out of court.” Mac Gann puts it this way: “We settle our good cases and try our hard ones.”
The courtroom statistics are just the tip of the iceberg—93 per cent of all malpractice claims are settled out of court—but even the settlement statistics belie the doctors’ warnings of a crisis. The majority of claims—65 per cent—result in no payment at all, and only 3 per cent produce awards of more than $50,000. Concludes Houston insurance man Richard Cross: “There is no real malpractice crisis if you can read the numbers.”
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