• January 15, 2013

A recent article in the Star Tribune reported on a lawsuit involving an interesting suit by a former employee of HealthEast’s Woodwinds Hospital.  The employee alleges that while working as a patient advocate she was instructed to destroy certain patient grievance records that could create liability problems for the hospital.  According to the news report, a hospital spokesperson didn’t just simply deny the allegation, but rather claimed it was false because the employee had only been asked to remove duplicative materials from the file.  Hmmm,  duplicative  or duplicitous, that is the question.  An outright denial might have served the hospital’s interest in avoiding liability and bad publicity much better.  Their qualified response, acknowledging some kind of request for record destruction, really makes one wonder.  My experience as a malpractice lawyer has taught me that paranoia about legal liability is often unreasonably high in the health care industry.  Such paranoia can lead to business practices that run contrary to the core ethic of the medical profession in which concern for the patient’s welfare is supposed to be the highest value.

I offer some examples from personal experience.

Some years ago I was asked by a lawyer from a fine local law firm to take over the handling of a medical malpractice case that he had prepared.  Despite his belief in the merit of the case and his substantial work on the file, he had to bail out despite the time and money he invested to investigate it.  Why? The risk manager for the corporate owner of the possible defendant had threatened retaliation to one of his law partners.  Although his law firm had no open files or current representations for this company, and the case had passed the firm’s conflict check, apparently one of his partners had done work for the parent company in the past, and hoped to do so again someday.  The risk manager, learning that a claim was under investigation by the firm, took it upon herself to reach out to the law partner (apparently without regard to patient confidentiality) and told the partner about the case and her view that if his firm pursued the case, they would never see any legal business from the corporation again.  As a former conflicts committee chair at a large law firm, I know this type of thing goes on in the rough and tumble world of private enterprise.  Even when corporate counsel are not so crass as to make such threats explicitly, lawyers widely fear that retaliation will be automatic.  Still, is it crazy to expect a little higher standard from an industry built around another true profession, the medical profession?  It is a unique  industry composed largely of “non-profit” corporations, that is supposed to strictly respect patient confidentiality, and whose stated missions are to cure illness and promote patient welfare.

Another very different experience reminds me of the depth of paranoia about legal accountability that afflicts some members of the medical profession.  A physician friend once invited me to give a talk to a local medical society to explain medical malpractice law and its real world applications. It was a novel opportunity, since the medical profession was more accustomed to hearing from defense lawyers, whose focus on the horror stories of potential litigation certainly has the effect of raising the level of paranoia.   It was a case of Daniel being invited to appear in the lion’s den.  During my talk, I shared the story of a case I handled in which there was a delayed diagnosis of cancer and I caught the physician who missed the diagnosis actually altering his medical records to make it look like the delay in treatment  was the patient’s fault.  I shared with the group copies of the actual medical records (redacted to preserve patient confidentiality of course) and explained the standard of care issues in the case.  I then distributed copies of the phony records that the defendant physician created and tried to pass off as the real deal. The records included an additional entry making it appear as though the patient was asked to return in follow up and simply failed to do so.   It is hard to say what was more impressive about the response – the collective gasp, or the synchronized jaw drop of the assembled physicians?  It was wonderfully reassuring to see the consensus disgust with this behavior.   Later, my friend told me that he received extensive feedback from his colleagues, all of whom expressed surprised to emerge from the meeting with a new outlook and conclusion that maybe professional negligence law did serve an important public purpose.

These examples are isolated cases and, despite my many years of reviewing medical cases in which patients suffered very bad outcomes, my basic admiration for the medical profession as a whole remains intact. But something tells me that undue paranoia about legal liability or the legal system is not strictly a matter of personal reaction by a few outliers.  I suspect this mentality has become widespread enough that it has warped the standards of the medical profession more broadly.

In a future post, I will revisit this subject and discuss some examples  of why I think my suspicion may be true.

By Michael W. Unger.

Mr. Unger, of Unger Law Office in Minneapolis,  is a certified civil trial specialist who represents plaintiffs in personal injury, wrongful death and medical malpractice cases.

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