CHAPTER ELEVEN
I’LL SEE YOU IN COURT
The idea of a legal redress for medical errors dates back almost four thousand years to the Babylonian Code of Hammurabi. It was a strict code, at least if the patient was a person of means: “If a surgeon performs a major operation on a nobleman with a bronze lancet and caused the death of this man, they shall cut off his hands.”1 Surgeons today are surely relieved that modern malpractice penalties center on financial compensation rather than amputations, but King Hammurabi laid down the idea that the doctor bears responsibility if medical care harms the patient. Additionally, Hammurabi developed the beginnings of a trial, with a panel of judges hearing the case, witnesses providing sworn testimony, judgments handed down in written form, and the option to appeal (to the king himself, of course).
The first malpractice case in the United States was in 1794 and focused on breach of contract rather than medical wrongdoing. A doctor promised to perform a surgery “skillfully” and evidently did not, causing the death of a patient. The patient’s husband sought redress for breach of contract and won. It took another half century before the idea of “standards of care” came into being, setting benchmarks for what medical care should be. The formation of the American Medical Association in 1847 was largely focused on the idea that there should actually be standards of medical care.
In order to prove malpractice in the modern legal system, four criteria must be met:
1. There is an actual doctor-patient relationship (that is, you can’t sue any random doctor; it has to be one who has actually taken care of you).
2. The doctor did not adhere to the standards of medical care.
3. The doctor’s substandard care was, in fact, the cause of the patient’s injury.
4. The patient’s injury resulted in quantifiable damages.
The second and third points are the meat of most malpractice cases. Lawyers have to prove not only that the doctor did not render the best medical care, but that the negligence actually caused the injury. In practice it can take years of investigation to work this out before a trial can even begin. Lawyers from both sides have to formally question the doctor, the patient, expert witnesses—what is known as the deposition process—in order to figure out if standard-of-care was indeed violated and if the doctor’s actions indeed caused the harm.
This process is extraordinarily expensive—requiring money for lawyers, expert witnesses, researchers, independent reviewers, court reporters, and videographers to film the depositions. This can add up to hundreds of thousands of dollars before anyone even sets foot in a courtroom. For this reason, malpractice lawyers are exceedingly selective about which cases they take. Most of the lawyers I spoke to said they have to turn down the overwhelming majority of the cases that patients bring to them. These lawyers work on contingency; that is, they get paid only if they win. Thus, they won’t even touch a case unless they are confident it is winnable (all four criteria are met) and that the payout for damages will cover their costs and also provide worthwhile sums to the patient and, of course, to the lawyer. This is where the fourth point—quantifiable damages—becomes critical, since it is these damages that decide what the financial penalty will be. If the patient suffered only a broken toenail (even if the doctor’s negligence clearly caused this damage), the payout will not cover the colossal costs of pursuing the case. Lawyers, therefore, usually take only cases in which a patient has been severely harmed.
Jay’s case seemed to qualify: Tara felt she could prove that the medical team was negligent in its care of Jay and that this negligence caused the harm. The harm was indeed severe. A lawyer agreed and took on the case.
As the key witness, Tara would have to testify in court. She wanted to be sure that she knew her stuff, so she prepped in the same way she’d prepared for her nursing exams—exhaustively immersing herself in the material until she could recite it backward and forward. By her own account, she became obsessed with the details, of knowing every precise fluctuation in oxygen saturation. But reliving the details, over and over again, was traumatic. “Having to memorize every moment of Jay’s death so that I could testify accurately,” Tara said, “tore a fiery hole through my heart.”
It took a toll on her physical health too. Normally a slim 115 pounds, Tara weighed one hundred pounds at the time of Jay’s funeral. She had to borrow clothes from her daughter since none of hers fit. Two months later, she looked down at her belly one day and could see the pulsing of her aorta, the vessel that rests against the spinal column. Her weight was 92 pounds by then. Even sweatpants slipped off her hips.
Tara soon learned—like most people who pursue a malpractice case—that a lawsuit does nothing to heal the pain. On the intellectual side, suing might offer a sliver of gratification in terms of exposing the facts, but on the emotional side, it’s more akin to bandaging a wound with sandpaper. One day, while driving on a bridge above a river, Tara was gripped with a vision of driving over the edge. She could see her car sailing through the air, crashing through the surface of the water and sinking. “I imagined myself sitting calmly, waiting for the water to engulf me so that I would cease to exist. Perhaps my kids would be better off. Hopefully, the police would assume I was texting and driving or, maybe, after checking my medical records, that I’d had a longer run of tachycardia causing me to lose consciousness. This way, there would be no mention of suicide, and my kids wouldn’t have a problem getting my life insurance.”
Tara persevered, though. She had to. She felt this was the only way to get any sort of justice for Jay. She also felt she had an ethical duty to help future patients. She wanted the lawsuit to prevent the pulmonologist, Dr. Peterson, as well as the hematologist, Dr. Mueller, from ever practicing medicine again. She wanted to put a stop to their ability to harm patients. To do so, she wanted every single person involved in Jay’s care to provide sworn testimony (deposition) so that her lawyer could demonstrate the pervasive disregard in the face of Jay’s worsening condition and Tara’s drumbeat of warnings.
But that’s not what happened. Tara quickly learned that the legal system, just like the medical system, is guided largely by money. Each deposition costs money, and so the cost would have to be justified with respect to the possible payout at the end. Her lawyer had to pay all the deposition fees and expenses in advance, and if they didn’t win the case, he wouldn’t be able to recoup those costs. Likewise, expanding the scope to take down the two physicians (as opposed to just settling the case over Jay’s death) would increase the cost of the case but wouldn’t increase the payout. Therefore, getting the doctors’ medical licenses revoked would not be a stated goal of the case.
“Each legal move,” Tara said, “felt like it had more to do with the lawyer earning money than it had to do with seeking justice for my husband.” It felt eerily similar to her experience as a Clinician Nurse Educator, in which the hospital administrators seemed more concerned about financial liability than about the health of the patient and prevention of future error.
Tara attended the deposition of every physician. “In my idealistic mind,” she said, “I assumed that everyone would speak the truth.” In her clinical experience, even doctors who were nasty or nurses who were rude still maintained a basic adherence to medical facts. But that was not quite how things played out at the depositions. She expected that Dr. Peterson might fall back on the convenient murkiness of diagnostic uncertainty or conflicting clinical judgments. Or maybe he would say he just couldn’t remember. Who could argue with that? But he openly stated things that were in direct conflict with what Tara had observed at Jay’s bedside. Dr. Peterson recounted his visit to Jay on what turned out to be Jay’s last day alive. He reported that Jay was clinically stable at 1 p.m., and that he and the patient had a “full and easy conversation.”
Tara remembered that day all too well. She’d spent the entirety of that day at the bedside watching Jay struggle for air. He could hardly stitch two words together, much less participate in a full and easy conversation. Dr. Peterson further stated in the deposition that no one had alerted him to the patient’s decline over the course of the afternoon. The only time he answered, “I don’t recall” was when he was asked about Tara’s repeated requests for Jay to move to the ICU and her frantic urgings to ramp up the level of care.
Tara was shocked not just at the untruths that Dr. Peterson offered, but at the ease and conviction with which he did so. But from the perspective of the legal system, it was just Tara’s word against Dr. Peterson’s. It would be left to a jury to decide who sounded more believable, since the only other witness who could have corroborated what did or did not transpire, of course, was Jay.
For Tara, the sense of betrayal cut even deeper when it came to the nurses. Nurses! The hospital infantry dedicated to faithful documentation—sometimes to a fault—how could nurses be untruthful under oath? And yet she heard them say things, with a straight face, that strained credulity.
One nurse, for example, had rewritten all eight notes she’d documented over the course of her twelve-hour shift. Rewriting even a single note after the fact is unusual. Rewriting eight notes raises a red flag. When questioned about that highly unusual behavior, the nurse said she’d inadvertently written the wrong time and date and so thought it better to rewrite every note in its entirety rather than just correct the time and date.
Tara was dumbfounded. First of all, every nurse knows that if you’ve written a time or date or really anything in error, the correct course of action is to cross out only the wrong information—though leave it legible—and then write in the correct information immediately adjacent, along with your initials. This indicates that you’ve noted your error and corrected it. Leaving the original error legible beneath the cross-out shows that you have nothing to hide.
Second, could any nurse make the same error eight different times during her shift? By the time you’ve finished a twelve-hour shift documenting every vital sign and every organ system on every patient on your ward, you may not remember your own name or when you last went to the bathroom, but the one thing you do know is the date.
Another nurse denied saying that Jay’s gray and mottled skin was a side effect of chemotherapy. For this one, though, a family friend had been present, so Tara knew she had someone to back up her recollection. Still, it was staggering for her to witness her fellow nurses saying things—under oath, no less—that were simply untrue.
The process of depositions and mediation took a grueling three years. There were exhausting negotiations plus endless documents and statements to review. And every step of the way entailed reliving the horrific details of Jay’s death. On top of that, Tara had to reconcile how much or how little to share with her children. “In one breath I was telling them their dad died professing his love for them,” she said, “and then in another I was seething about the harsh realities of his demise.” Sasha and Chris began to avoid talking to her about Jay and grew distant. “But I couldn’t contain myself,” Tara said, because the details and emotions from the lawsuit seeped into every waking moment of her life. The only way she could prevent herself from inflicting more pain on her children was to simply stop talking. “There were times where I simply didn’t speak to them at all,” she said.
Throughout this period, the hospital made several financial offers to Tara, offers that came with money but without any admission of wrongdoing. Settling out of court would bring a quick end to the pain of this ordeal. It would also provide immediate financial relief for Tara, who was still struggling to pay off the medical bills. Most important, it would save her from the risk of going to trial and potentially losing the case, and with it, any possibility of a settlement. Tara couldn’t ignore the financial reality of a lifetime of raising two children as a single parent, without Jay’s help and without the income from his job. Their savings were modest, the bills were considerable, and she was no longer confident of her ability to work as a nurse. A financial settlement could go a long way toward relieving this uncertainty.
But the lies and the evasions Tara heard coming from her professional peers during the depositions disgusted her. “I didn’t get the feeling, individually or collectively, that anyone was owning up to their mistakes and poor clinical decisions,” she said. Jay was such a straight shooter when it came to taking responsibility for shortcomings, even for the littlest things. She couldn’t imagine him standing for the lily-livered equivocations that the medical staff were putting forth. “I didn’t believe they acknowledged the systemic problems at their hospital,” she said. As a nurse, she could not bring herself to take the settlement without seeing things set right. “I wanted these issues addressed,” she said.
Tara turned down the offers. Her lawyer supported her, feeling that she’d have a good chance of winning the case in court. The fact that the hospital kept raising the amount of its offer suggested that it was nervous. After all, the patient had died. Juries tended to be sympathetic in the face of a tragic death.
But if the deposition process had been painful, the preparation for the trial was downright caustic. A week before jury selection, Tara’s legal team staged a mock trial so that Tara could become familiar with the proceedings. Tara sat in the witness stand of a pretend courtroom set up at the law firm. Lawyers fired questions at her, and she was instructed to direct her answers toward the jury—in this case a mural of a jury posted on the opposite wall. Tara tried her best to talk to the wall, but it felt awkward and unnatural. She kept instinctively turning back toward the lawyer who was questioning her. Worse, though, she stumbled over her answers. She flubbed easy questions and drew blanks on things she knew well.
At one point the lawyer asked her to relay the words Jay had said to her the night before he died. It was three simple words. Three agonizing words. Three anguishing words that still, to this day, haunt her: “I . . . can’t . . . breathe . . .”
Yet at that moment, in the simulated witness stand, she couldn’t remember them. Tara frantically turned her mind upside down, trying to recall the three words that had been seared into the membranes of her soul. She became distraught as it grew clear that she wouldn’t be able to pull that quote from her memory.
The lawyers observed this panic and so switched to simpler, more mundane questions. They pitched her easy questions about time and place, but still she couldn’t come up with answers, even for basic facts. It was hopeless. The legal team finally called off the session. Tara staggered to her feet and could hardly keep herself upright as she tottered toward the door.
Five days later—the day before jury selection—the hospital increased its offer significantly. By this time, Tara was nauseated and shaky almost every day, hardly eating or sleeping. Her weight, which had recovered in the prior year, dropped back down to ninety pounds. “I felt paralyzed,” she said, “as if something was strangling me. I didn’t believe I could survive the trial. I knew my kids would be present, and they would have to observe me falling apart. I finally realized that I couldn’t save this hospital’s broken system any more than I was able to save Jay.” She accepted the settlement, even though the hospital would not admit any wrongdoing.
Receiving money after the loss of a loved one is discordant by any human logic. Trying to replace the irreplaceable is already an impossibility, excruciating even to contemplate. Filling that hole with the crassest of commodities can seem like an insult to the human spirit. And yet . . .
And yet, that is what we do in our legal system to redress medical errors. That is what Tara received after losing the love of her life—a check. It seems almost horrifying to contemplate these two concepts in a single sentence—a beloved human being and a piece of paper with numbers on it.
A supreme unfairness. And yet . . .
And yet, money can make a tangible difference. Besides the bills that needed to be paid, Tara discovered that the practical parts of recovery were expensive. Therapy wasn’t cheap—or easy—but it enabled Tara and her children to grapple with the trauma from Jay’s sudden and violent absence from their lives. It took years of therapy for Tara to deescalate the paralyzing flashbacks of witnessing Jay’s death. The money also enabled her to visit her children when they left for college, to help them with the painful emotions that trailed them for years.
But the money didn’t restore Tara’s faith in the medical system. It didn’t repair the strained relationships with family and friends. It didn’t bring back the years lost to suffering and grief. And, of course, it didn’t bring back Jay. It didn’t create a father for Sasha and Chris. It didn’t fill the throbbing, bottomless hole created by the loss of a life partner. It just made an awful experience a few degrees less awful.
Tara fully recognized how much worse life would have been without the financial settlement. Experiencing grief, PTSD, and insomnia while simultaneously trying to exude strength and solidity for her children, who were experiencing crushing emotional devastation of their own, was hard enough. To do that while sinking financially would have been unspeakably cruel, though that is a fate that many people face.
Malpractice suits are far from perfect. Because of the cost, effort, and stringency involved, they are available only to a tiny fraction of patients who’ve experienced medical error. Additionally, there is little consistency within malpractice law: different juries can come to opposite conclusions on similar sets of facts, and payouts for patients vary tremendously. Beyond this, there is the side effect of defensive medicine—all the additional testing and treatment that doctors undertake because of the fear of lawsuits, whether real or imagined.
In addition to estimated costs of $45–55 billion wasted on defensive medicine, there is the actual harm that can come from this unnecessary treatment. Just the superfluous CT scans alone can lead to kidney damage from IV contrast, additional cancers from the extra radiation, and, of course, false positive diagnoses from the plethora of incidental findings that pop up like mushrooms after a spring rain.
Given all of these drawbacks, it’s reasonable to ask whether lawsuits actually work. Does the malpractice system make medicine safer? This is tough to answer with any reliability because you can’t really do a randomized controlled trial. Researchers who’ve examined the data estimate that only about 7% of patients who’ve been harmed by negligent medical care ever receive any compensation. On the flip side, fewer than 20% of people who receive compensation actually suffered from negligent care. Additionally, more than half the money paid out goes to cover litigation costs rather than to the patients themselves. So at the very least, it is an inefficient system.2 Many in the medical community believe that rather than improving patient safety, the system simply causes doctors to practice defensive medicine.
Most malpractice lawyers, perhaps unsurprisingly, say the malpractice system is beneficial to patient safety. “The fact is,” Seattle-based lawyer Peter Mullenix told me, “the medical profession does not do a very good job of policing itself.” A malpractice case speaks not only to the doctors who have acted carelessly, “but also to all of the other doctors who know that doctor.” There is a ripple effect across the medical community that affects both individual practitioners and regulatory boards, imbuing these lawsuits with a powerful potential to save lives. “For every malpractice case,” Mullenix said, “there are probably fifteen doctors who look at it and say, ‘I’d better not do that!’” He made the analogy to car safety: “We now have seatbelts, airbags, and excellent brakes because the system held the automotive industry liable.”
You will surely not be surprised that most doctors beg to differ on this viewpoint. Certainly most British doctors did not react that way after Hadiza Bawa-Garba was convicted of manslaughter in the death of young Jack Adcock. The general sentiment was more along the anguished lines of “There but for the grace of God go I.” They saw a scenario that they’d all been in—overworked, understaffed, dealing with malfunctioning technology, perhaps cutting a few corners in order to survive an impossible workload. Rather than learning lessons about medical actions they shouldn’t do, they saw the court as a weapon to scapegoat doctors for the shortcomings of the entire medical system.
But even beyond that extreme case in which there was a highly unusual criminal conviction, the threat of a lawsuit—even in theory—strikes fear in the hearts of most doctors. Even knowing that doctors win most cases doesn’t assuage the terror or reduce the aggressive over-testing and overtreatment from defensive medicine. Sara Charles, a psychiatrist I interviewed for an earlier book, What Doctors Feel, described to me a bruising lawsuit that is emblematic of many doctors’ experiences. A patient of Sara’s attempted suicide by jumping off a rooftop. The patient survived, though she was permanently injured, and sued Sara for negligence in her care. The patient contended that Sara did not appropriately treat her depression and that this negligence resulted in her suicidality and severe injury.
Sara ultimately “won” the case, but even she would put that word in quotation marks. The fact that the jury found that she had not been negligent could hardly make up for the five agonizing years Sara suffered. Her personal and professional lives were ravaged by the experience, and being vindicated hardly offered relief. When Sara began to research malpractice, she realized that her experiences were depressingly common among physicians. Moreover, her patient ultimately wasn’t helped by the experience either. It was the same five miserable years for her, with nothing at the end to make it worthwhile. The lawsuit didn’t improve the patient’s situation and it didn’t make Sara a better doctor. The only change to Sara’s practice was that she became hesitant to take on patients with more severe psychiatric conditions.
While some errors are committed by medical personnel who are truly negligent and substandard, the vast majority of errors are committed unintentionally by otherwise conscientious doctors and nurses. For these folks, malpractice suits do not serve to educate or improve. The devastating outcome for their patients usually delivers a powerful enough dose of grief, shame, and awareness of the error. There is rarely much constructive gain that malpractice suits can add to individuals who recognize their errors and feel remorse about them. Many, like Sara, shy away from complicated patients after that, thus decreasing medical options for very sick patients. In a survey of four thousand doctors, more than half who’d been sued reported that malpractice fears influenced their care with every or nearly every patient. Even the doctors who had never been sued felt that way—40% reported the same behavior.3
Doctors who’ve been sued commonly experience depression, anxiety, isolation, and loss of trust in the doctor-patient relationship. The effect can be so shattering that the term “clinical judicial syndrome” has been developed to encompass the depth and breadth of the fallout.4 Though it never denies the primacy of the damage to the “first victim” (the patient), clinical judicial syndrome recognizes that medical error can also create a “second victim.” Doctors often experience their personal and professional lives being shredded during a very public and humiliating process, one that can drag on for years. Many have likened the emotional trauma to experiencing a death in the family, and some never recover. While the general public, perhaps understandably, might be loath to yank out the violin for well-paid doctors, it’s important to note that up to 40% of lawsuits turn out to contain no medical error at all.5 A not-insubstantial number of doctors, therefore, have their lives upended when they haven’t done anything wrong.
Peter Mullenix has a different take on this. “The weird thing about malpractice,” he said, “is that doctors, unlike any other profession, seem to think they should be immune from consequences of their carelessness because their ultimate goal is to help people.” He points out that altruism exists in many other lines of work. Architects, engineers, lawyers, and plumbers are all trying to help people. “Every profession has members who make careless choices that sometimes harm people. But it only seems to be doctors who think the law should protect them against their bad choices because their motivation is to help people. If a lawyer commits malpractice, the lawyer expects to face legal consequences. But doctors don’t think it’s fair and they’ve been able to set the system up to avoid accountability in all but the most egregious cases.”
When it comes to institutions—as opposed to individuals—there seems to be evidence that direct legal action and financial penalties can be effective. For example, when Medicare starting fining hospitals for high rates of certain complications that were felt to be avoidable—bed sores, falls, blood clots, hospital-acquired infections—hospitals moved quickly to clean up their act. As with the auto industry, the bottom line is a powerful motivator.
The bottom line, however, isn’t always effective for individuals. For most doctors and nurses—as opposed to institutions—money is, at best, an oblique incentive. We all want our patients to do well. No clinician with a detectible heartbeat wants her patient to get a hospital-acquired infection, or have surgery on the wrong side of the body, or receive a delayed diagnosis of cancer. Threats of lawsuits are not necessary to instill this priority.
The adversarial nature of litigation also runs counter to the general mode of medical learning, which involves gradual accrual of evidence leading toward a consensus. Doctors and nurses generally see themselves as being on the same side as the patient, wanting things to work better. Committed clinicians expect to be held accountable when they fall short, but adversarial litigation usually ends up embittering rather than engaging. We’d much rather an adverse outcome rally doctors and nurses to improve the system, not cause them to sequester themselves behind a wall of defensive medicine.
For cases of blatant medical negligence or egregious medical care, litigation is clearly appropriate. But for most adverse outcomes and for errors that are not a result of callous disregard, the malpractice system is an unwieldy tool. From the patient perspective, it is inefficient because it can aid only those for whom vast financial damages can be calculated. If the potential recoverable amount doesn’t exceed the prodigious cost of litigation, it’s not worth the patient’s or the lawyer’s time, so nothing happens.
Peter Mullenix, the malpractice attorney, told me he has to turn down 99% of cases that come to his firm, either because it’s not possible to prove causality or because the damages are not extensive enough to merit the costs. He estimates his firm has to spend up to $200,000 per case, so he needs to be sure the ultimate payout will cover this. They have to hire experts on standard-of-care for the medical issue at hand, experts knowledgeable about medical records, and experts on the calculation of damages. Sometimes law firms have to hire economists and experts on government regulations. They have to conduct depositions of witnesses for both the prosecution and the defense. The witnesses and experts can be scattered geographically, so travel expenses figure in.
In light of this, they will only take a case that seems winnable, in which the doctor’s liability is obvious and egregious, such as ignoring a clear-cut infection or misdiagnosing an evident cancer. To generate a potential settlement that will cover all the costs, plus the lawyers’ fees, plus a worthwhile payout for the patient, means the firm can only take a case in which calculated damages are severe—medical bills in the millions, a patient who is left permanently paralyzed or requires lifelong care or has died.
Only about 1% of cases that come to their firm fit these criteria.
Mullenix said he found it saddening that so many patients—even those who experienced legitimate errors—weren’t able to muster a winnable case. It was painful to explain, over and over, that even if you suffered harm or had a bad outcome, the malpractice system wouldn’t be able to help you. His frustration with the narrow reach of his professional world led him to the arena of patient-safety advocacy.
Mullenix joined the Washington Advocates for Patient Safety as a way to help patients for whom the malpractice system is inadequate. The goal of WAPS is to help minimize medical errors and patient harm. This involves working on legislation, raising awareness, educating medical professionals, educating patients and families, and providing resources. Mullenix’s particular interest resides in the area of medical devices—artificial joints, pacemakers, surgical tools, and the like. He’d been shocked to learn how lightly medical devices are regulated and how sales representatives are often present in the operating room alongside the surgeons.
Patient-safety advocates, as I’ll discuss in chapter 13, have become another rung of scaffolding in the effort to decrease medical error. Most enter the arena the hard way, after struggling through a wrenching and often isolating medical experience. Typically patient-safety advocates find each other online or by word of mouth, with battle-weary recognition of kindred spirits. Even for the rare few who have been vindicated and won a lawsuit, the trauma remains. As Tara learned, the money may help with the overwhelming bills, but it never makes up for the lost loved one or any of the permanent damage suffered. And it certainly doesn’t fix the system.
“The system in which Jay died was undeniably broken,” Tara reflected, “partly because of an atmosphere of secrecy. The nurses could not admit to what they didn’t know. And, I suspect, neither could the doctors. Dr. Peterson prided himself on his twenty-plus years of doctordom. I got the feeling he used that line a lot: ‘In my twenty-plus years of experience, blah, blah, blah.’ He seemed like the type of doctor who’d be dismissive of anyone with less polished credentials, a guy who’d intimidate those around him from questioning his judgment.”
When the hospital offered to settle out of court, Tara wanted a commitment from it to improve the conditions she felt had led to Jay’s death. She wanted them to confront the shoddy communication among the staff. She wanted them to lower the barriers to transferring patients to the ICU. She wanted the hospital to mandate nursing education about sepsis. She wanted hospital leadership to commit to engaging patients and families in a meaningful way.
What was the hospital’s response? It offered to put up a plaque in the BMTU in memory of Jay. Tara could hardly contain her rage. A plaque?!? At her creative best, Tara could not have come up with a more apt metaphor for the hospital’s myopia—nailing a piece of wood on a wall instead of training the staff about sepsis, critical care, and communication.
The hospital came back with an offer to hold an annual lecture in Jay’s name. This piqued Tara’s interest, as it might actually translate to education and improved patient care. But it turned out that the lecture would only be for the medical students, not the BMTU staff. And when Tara asked if she could be one of the speakers, the hospital flatly refused.
In desperation, Tara requested a single meeting with the BMTU staff, a roundtable discussion where, at the very least, they could review the case and the lessons learned. At first glance this sounds like the least desirable thing to request in a settlement: an intimate engagement with the people you felt had killed your husband. But at some point, almost all patients and family members facing medical error find they are simply too exhausted for revenge. It’s too painful and too depleting and, ultimately, fruitless. The error will not unwind. Your loved one will not walk in the door. The damage will not reverse.
Tara had been run ragged by the three-year legal process and her own grief, as well as that of her two children. The only meager light anywhere in that endless tunnel was the chance to protect future patients from what Jay had experienced. A face-to-face meeting with the BMTU staff was about the only thing she could effect at this point. The hospital agreed.
Tara channeled whatever energy she had left into this roundtable discussion. She prepared relentlessly for the meeting, spending months organizing documents and handouts, rehearsing what she would say. She didn’t want to alienate the staff; she wanted to engage them as a colleague from the medical trenches. She understood their world—she wanted them to know that—but she needed them to understand hers. She wanted to impress upon the staff the human dimensions of their actions and how to prevent a future error.
The roundtable meeting was held in a hospital conference room. Tara scanned the staff as they filed in—not one of the doctors was there. Not one of the floor nurses from the BMTU was there. The only people Tara recognized were Constance—the nurse manager of the BMTU who was more of an administrator—and the hospital’s attorney. Tara knew that Dr. Everett had moved to a new hospital and that the two hematology fellows—Dr. Samir and Dr. Chowdury—had graduated by this time, but Dr. Mueller and Dr. Peterson were still on staff. The attending hematologist and pulmonologist were the two doctors most responsible for the decision-making in Jay’s case. Where were they? And the floor nurses who performed the daily care for Jay, who were the ones that Tara reported her observations to—where were they? Their absence stung.
This wasn’t what Tara had in mind when she’d requested the meeting. She wanted to have a direct discussion with the clinical staff, the ones actually taking care of patients. The ones who’d taken care of Jay. Instead, she faced ten administrators and nurse managers who looked as though they’d been frog-marched in at gunpoint.
She had no choice, though, but to plow forward. Tara opened the meeting by passing out photos of Jay. She wanted to them to see the person he was—father, husband, friend, aviator. But the atmosphere around the table was cold. Nobody spoke or made much of any connection. The discussion that Tara had hoped for turned into a monologue, but she persevered, describing Jay and what had transpired during his one-hundred-hour stay in the BMTU. Tara distributed copies of the state’s nursing code of ethics, sliding the sheets along the leaden chill of the vast oak table.
Would these words even mean anything? she wondered. Would these nurses-turned-bureaucrats even remember what it was like to look into the eyes of a terrified, critically ill patient? Or were they too far gone? Too sunk in their monthly reports to recall the feel of a racing pulse beneath fevered skin. Too enmeshed in their policy manuals to remember the give of a syringe or the bristle of gauze. Did they still retain the instinct of how to transfer a patient from gurney to bed without unsettling IVs, catheters, or a patient’s trust? Could their hand muscles even summon up the brisk squeezes to inflate a blood pressure cuff?
Tara told them that she well understood the severity of AML and that she’d harbored no illusions about Jay’s prognosis. She knew from her own nursing experience that MRSA sepsis was ferocious. She knew that Jay might have died even if his sepsis had been treated appropriately. But it hadn’t been—and that was why she was in this conference room right now.
If Jay had been intubated when he could no longer breathe and been transferred to the ICU when his condition grew critical, she would have understood his death. She would have accepted Jay’s death as a tragic outcome of a terrible disease complicated by a virulent infection. But that’s not what happened. “No one paid attention to the signs and symptoms of sepsis he was exhibiting,” she told them. That by itself was substandard medicine. But even if the staff didn’t notice Jay’s worsening condition, there was Tara—the patient’s wife, yes, but also a trained RN—pointing it out to them over and over. “No one listened to my concerns,” she said to the group.
As a result, Jay was never offered the high-intensity care of the ICU that would have given his body a fighting chance of eradicating the MRSA infection. He might not have survived even in the ICU, true, but there was a chance that he might have. And if he pulled through the sepsis, then the AML treatment could continue with the goal of a bone marrow transplant, which was Jay’s only chance for a cure. Tara knew that the bone marrow transplant held its own grave risks, and that the odds of a cure were long—but they weren’t zero. And if you are thirty-nine years old and have two children, you deserve that chance, however slim. But by ignoring the signs of worsening sepsis, the BMTU staff deprived Jay—and deprived his children—of that singular chance.
Tara talked about the importance of training nurses on the BMTU about sepsis, since their patients were at especially high risk. She also talked about the nurses’ role in educating family members about noticing—and reporting—any concerning signs. Tara had learned, after the fact, that family members themselves were allowed to initiate a “rapid response” that would call an emergency team to the bedside. Had she known that, she would have done so, but the nurses had never told her. She stressed how critical it was for the nurses to inform patients and their families about that option.
Tara’s audience sat in rigid silence. Nobody moved. Nobody spoke. There wasn’t the slightest twitch from the 430 collective facial muscles gathered grimly around the table. If there had been cardiac monitors in the room, they would have registered a collective flat line. But Tara pressed on. “I wasn’t nervous at all,” she recalled. “This felt right, and I felt Jay’s energy all around me.”
Tara told the group about the profound guilt she was saddled with: she—an experienced ER and CCU nurse—had allowed Jay to die on her watch. She could never forgive herself for that. She described to them her predicament at the bedside, trying to navigate her role as the supportive spouse versus that of the instinctive nurse. At that moment, a solitary whimper escaped from her. It echoed in the room against the rigid surfaces and silent bodies. Tara quickly corralled her composure; she was not going to break down in front of these people and be dismissed as the overemotional wife.
She pleaded for them to learn from Jay’s death, imploring them to spend more time and money educating the nursing staff. Tara explained that she hadn’t wanted to sue—that was neither her nature nor her philosophy. Litigation against her own profession was downright devastating. She’d finally brought the suit only because she’d learned that hospitals attend to problems only when major dollars are at stake.
But she felt as if her words were evaporating into the walls that were painted corporate-compliance gray. Everyone at the table appeared to be watching the second hand on the clock, counting down the time until they could get back to their spreadsheets and quarterly reports. Tara was about to wrap up the meeting when Constance, the nurse manager of the BMTU, asked if she could speak.
“I remember Jay,” Constance said quietly, “and so do others from the floor. He has not been forgotten.” Tears began to well up in her eyes, and Tara felt her own heart ache. Maybe, Tara thought, I haven’t been the only one suffering with guilt.
“What happened was horrible,” Constance said, as the hospital’s lawyer squirmed visibly in his chair. “That day was the worst day of my medical career,” Constance continued, ignoring him, “and I am deeply sorry for what happened.”
Then she looked directly at Tara and said, “You tried harder than anyone to save Jay.”
It was almost audible, the first faint splintering of Tara’s strangling guilt. Somebody—somebody—recognized her efforts. Constance’s words offered the first stuttering glimmers of reprieve. Maybe Tara wasn’t the worthless nurse she’d been feeling like, or the useless wife, or the feckless advocate. Maybe Jay didn’t die because she wasn’t smart enough, or tenacious enough, or dedicated enough. Maybe, just maybe, Jay’s death wasn’t her fault.
Tara had been determined not to cry during this meeting—nothing would get her written off more efficiently than a puddle of tears—but she could hold back no longer. It was clear that there would be no resolution with any of the doctors. And no resolution with any of the floor nurses who had been caring for Jay. “Thank you,” she choked out to Constance. “Thank you for saving my life.” This single exchange with the nurse manager would be the only human response Tara would ever get from the hospital system.