Medical Malpractice

Some notes on medical malpractice:
There was recently an editorial discussing a wrongful death lawsuit being filed in Texas - an editorial that I feel deserves careful evaluation. The patient was a preschool aged girl who, sadly, was ultimately found to have meningitis. The physician involved was a senior emergency medicine resident (who has since graduated) at UT Southwestern. The initial diagnosis was ear infection.
Let’s look closer (at the case, and the article)...
The patient was initially seen at 2 in the morning for fever. At the time of her initial evaluation, her fever had improved from its peak of 101, but she continued to have a fast heart rate (not uncommon with many infections, although certainly a finding worth noting as it can indicate a more nefarious process) so the physician ordered labs (we’ll get to this in a minute) and gave her fluids. She was then discharged home on antibiotics for an acute ear infection.
Point #1: A resident saw the patient. While this is, indeed, a specialist-in-training, many 2nd year ER residents are good, if not great, clinicians. I would trust my family to any of the residents I train (and if not, our program won’t let them moonlight). Remember, ultimately, an ER means access and convenience. It doesn’t mean you get to see a neurosurgeon or orthopedist for your back pain, and not everybody is entitled to Dr. House M.D. for their difficult diagnosis; you get the doctor that is available - after all, that’s why you’re there, instead of at a primary care’s office. It wasn’t very long ago that many emergency rooms, especially in smaller towns, were staffed by a general practitioner (1 year of post-medical school training). In many cases, the doctor working in the hospital would run down to the ED, see a patient, and then run back upstairs to continue taking care of patients on the floor. The whole notion of a specialty trained physician in the ED is relatively new, and in many places, ERs are still staffed by various medical professionals (general practitioners, family practitioners, general surgeons, opthomologists, hemotologists, etc.).
Point #2: this presentation and management is very common; in fact, this happens nearly every shift in the ED, usually without the labs or fluids (if a kid can tolerate drinking, then that’s the best way for them to get fluids. Plus, it hurts less than an IV). Upper respiratory infections are exceedingly common, as are ear infections. Both usually go away in 7-10 days regardless of what you do. In fact, you are more likely to have an allergic reaction to an antibiotic than you are to get meningitis from an ear infection (though this wasn’t always true). Literally, if we did nothing for every kid with an ear infection, most (80+%) would be just fine (consider, it wasn’t epidemics of ear infections and meningitis that killed kids in the past - it was measles, pertussis, influenza, etc.). I’ve only given my own kids antibiotics twice, and both times I waited 10 days before I started them.
Point #3: Meningitis is rare - really rare, and even if the doctor does everything perfectly (early antibiotics, lots of fluids, etc.) there is somewhere between 10-30% change you will die. Of those who survive, there is a really high rate (nearly 1/2) of neurological complications - usually hearing loss, but a more rapid onset and more severe symptoms portends a worse outcome. Some diseases are just really, really bad, no matter what you do. Medicine is not Miracle.
Point #4: If we did a lumbar puncture on every kid that came in to the ED with a fever, we would still miss cases of meningitis, and the girl who died in this case very well may have been one of them. You see, this is where laboratory interpretation comes in. To begin, one of the accusations in this case was that the WBC was high, so the doctor should have known that she had a serious infection; however, this has been studied and shown to be worthless in diagnosing meningitis. For the statistically minded, the area under the curve for a WBC count (from the blood) was about 0.5, or the same as if you walked into the room, flipped a coin, and made a clinical decision based on the outcome. It quite literally has no predictive power here. If, clinically, a doctor is worried about meningitis, then the appropriate test is a lumbar puncture (a needle into the back). Now, this comes with some risk - headache, bleeding, introducing infection - and it also misses some cases - usually the early ones, and often the most dangerous ones. You see, to be simple, there are two ways a disease can progress: rapidly or slowly. For the slowly progressive diseases, you have time to make a diagnosis, and the outcomes are usually better. For the rapidly progressive diseases (e.g. over hours in this case), if you do a test too early, it will be normal, because the disease hasn’t “sunk in” yet; but by the time you see signs and symptoms of the disease, the patient is already very sick and you’re behind the eight-ball, so to speak. Unfortunately, there isn’t any way to figure out who is likely to have the bad stuff, and who has the less bad stuff, other than just waiting.
To offer a real-life example, there was a similar lawsuit years ago against an emergency physician who, astutely, noted neck pain in a patient with abdominal pain - that’s right, the kid presented with abdominal pain - and got the parents to agree to a lumbar puncture on their smiling, well appearing son. By technical criteria, the tap was negative and the kid looked well (he improved with fluids), and so he was discharged. He died the next day of meningitis. So this initially well-appearing young boy, who presented with abdominal pain, died within 24 hours of a disease that he was tested for, and tested negative for. Despite this, the physician was sued for what I consider to be excellent care (in fact, he should be commended for doing a lumber puncture on a child with abdominal pain - I think most of us would have felt so silly even suggesting this that we never would have mentioned it).

This brings me to the state of modern medical malpractice.
Malpractice hypothetically does (or was created to do) two things: “hold physicians’ feet to the fire,” so to speak, by creating a penalty of sorts should they perform badly (and, as a corollary, it would hopefully prevent bad doctors from practicing), and also to provide some recompense for people, or families, who had suffered at the hands of medicine.
The reality of medical malpractice is that it does neither. Malpractice insurance nearly always covers any losses a physician would have sustained, and it is exceedingly rare that a “bad” physician fails to find employment, despite a claims history (although their employment may be limited). Other than causing a great deal of stress to the physician being sued, malpractice suits often do nothing other than sow discord. If you are thinking that maybe it improves a physician’s practice, I can assure you it does not. It may make them more defensive, but studies, and my personal experience, would suggest that defensive medicine is far more expensive and causes more problems by overtesting and overdiagnosing diseases (in other words, now medicine is directly hurting people rather than diseases).
You might be thinking that at least people who were harmed get some financial recompense - after all, many of these lawsuits settle, or get decided, for hundreds of thousands, if not millions of dollars. Unfortunately for those individuals, and this argument, over 90% of all malpractice money goes to lawyers, courts, and expert witnesses.  It is a rare case that ultimately provides any significant amount of money for the individual harmed. Furthermore, just because someone “wins” a lawsuit does not necessarily mean that they were actually harmed by their medical care. Not everyone who suffered at the hands of medicine will sue (in fact, most don’t), and many who do file suit never had a legitimate complaint to begin with (though they may have had a good sob-story). Ultimately, the “standard of care” is what a jury decides, not what is, in fact, best practice; and even the standard of care/best practice has often been shown, in the long run, to be harmful (think anti-arrhythmic drugs after a heart attack - used to be the standard of care, later found to increase the risk of death). Even when physicians do make mistakes, how fair is it to insist on perfection, every time, all the time? In my opinion, an honest mistake is different than negligence.
Lastly, how unfortunate are those who suffer because of the slings of fortune rather than the honest mistake of a well-meaning doctor? Alas, there is no-one to sue. Our system is set up to exploit the honest mistake, the unintentional oversight (which we all do occasionally) equally with the truly negligent physician.
Overall, I think that our current system punishes physicians without regard for their skill level, increases costs, and pits patients and physicians against one another, rather than allying them with one another.
While I do understand that this was a bit long, I think it is exceedingly important, and worth reflecting on for all of us; after all, a recent report listed medical error as the 5th leading cause of death in the U.S., so it will likely affect all of us in some way.

Texas Wrongful Death Lawsuit - Preschool meningitis