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20
Wed, Oct

Anatomy of Medical Harm in America (from the plaintiff’s side)

HEALTH & WELLNESS - You’re a healthy person with an active life. On your list of things-to-do, (right before throwing a graduation party for your kid, getting your Masters Degree, or moving out of town for that long-awaited job promotion), is to get that back surgery your doctor has been harping on, or a breast reduction for structural reasons to relieve ongoing pain. 

Or a knee replacement, hernia surgery, a mole surgically removed, or one of any number of medical procedures well people get. Maybe you decide to treat yourself to a mommy makeover – a series of several risky procedures done concurrently - like your friends. 

Or perhaps you just got the bad news you have cancer and were told you need a tumor or breast removed, or already had a mastectomy and the oncologist’s office referred you to a plastic surgeon for reconstruction. The plastic surgeon suggests liposuction to transfer fat from your hips to your breast or tram flap to transfer fat, skin, blood vessels or muscles from your abdomen to your breast. “It’s no big deal, you’ll be so pleased, and laugh afterwards when you realize your concerns were totally overblown,” they tell you. 

You long to feel normal again. Whole. You want two breasts, or you need that hernia repair. The procedures seem legitimate, needed, and of value to you, so you agree. 

You trust your doctor’s referral. The surgeon, after all, wears a long white coat and has a lovely office, framed degrees, and a plaque from the mayor. You do your research. You check the doctor’s license on the medical board website; there are no sanctions - this buoys your confidence. You pull out your datebook, circle the days you expect be out of commission, make meticulous plans with work, family, and other obligations. Stock up with supplies. Rally your troops. You’re ready to go! 

On the other hand, maybe you rush to the hospital with a sick child or parent, or premature labor contractions - you don’t have time to research. Many scenarios bring people in contact with hospitals or ambulatory centers. 

So, what happens next? 

  • It goes well and your concern is addressed.
  • It doesn’t go well; you die, are disabled, disfigured, and/or left in permanent pain. 

If it goes well, you may not realize just how lucky you are. Medical harm in hospitals is cited to be the third lead cause of death in the U.S. These studies don’t count morbidity and mortality done in ambulatory centers or private medical offices. 

  • There are no comprehensive and honest medical databases 
  • Medical harm is commonly covered-up 
  • The doctor’s fellows and medical boards protect doctors, not consumers 
  • The medical notes are often fabricated to cover the harm and blame the patient. This is easy to do in especially in private ambulatory centers. If it isn’t in the medical records it never happened. This is a legal veil to protect doctors 

If it doesn’t go well, you will discover a dark underbelly of America. Each situation and person is unique and the harm is along a spectrum, but commonalities may be as follows: 

You come to after surgery or react badly to a drug treatment and know something is wrong right away, or come to realize you have been medically harmed over a period of time. The injuries leave you in unrelenting pain, traumatized, isolated, and broke. You tell your doctor about unexpected and severe negative outcomes to your body and health. 

It’s common for the doctor and people surrounding him or her to deny your experience regardless of how clear the damage is. You begin to realize you’re witnessing a cover-up, and in some instances, intentional harm. The offending doctor may write in your chart that surgery or treatment was perfect, you are pleased, and any problem is your fault. They may say you have factitious disorder, or anxiety, in order to invalidate you, which is a common way to set the stage for victim blaming to escape accountability. 

Your friends and family believe the doctors because after all, doctors know best, isn’t that what we’re taught? Now everyone sees you as a problem to be medicated into silence. 

If you realize the damage is severe and permanent or your loved one was killed, you may look to bring a lawsuit in order to recover lost income, recoup expenses, pay for future losses, and protect others. There is nothing frivolous about this. By this point, you begin to suss out an interconnected cycle of bad policies and procedures that gives doctors carte blanche and renders victims hurt, helpless, and sometimes destitute.  

You call others doctors for help, but they refuse and refer you back to the doctor who caused the harm. You’re telling me to go back to the doctor who assaulted me, you ask? They give a light giggle and respond, Huh, yeah, yeah. I guess I am. 

You find out there’s a statute of limitations to bring a medical malpractice lawsuit. In California it’s one year from the time of discovery. Ah, now you understand why your doctor kept telling you to give your concerns some time; it will get better. 

After calling dozens of lawyers or more, one may take you on contingency – meaning you don’t pay anything upfront: they’ll take 30 percent plus expenses. They say they’ve never seen such a bad case, they’ll get the doctor sanctioned by the medical board, but you need to wait until after the trial. Meanwhile, you know other consumers are at risk. 

The lawyer tells you you’re lucky to have representation at all because no one takes these cases anymore. He then tells you about MICRA, the tort reform cap in California. $250,000 (minus that 30 percent plus expenses) is the most you can get for pain and suffering, (including death, removal of wrong body part, paralysis, et al.) due to this Medical Injury Compensation Reform Act, (MICRA), an antiquated law that has had the same financial limit since 1975. 

YOU: But I can never walk or work again. Everything else – food, housing, commodities, currencies, oil, and even orange juice  - has adjusted for inflation since then. 

The lawyer subpoenas your medical records. You look them over. There is not one word of truth. They are inaccurate and completely false! 

YOUR LAWYER: The defense will hire a pricey expert to say exactly what they want. You will not recognize yourself in the picture they paint of you. Judges and juries usually side with doctors. Few people win medical malpractice cases. Be prepared to lose. 

YOU: What about justice? He assaulted me, killed my daughter, father, fiancé, or wife! 

Your lawyer is all business; except you haven’t seen anything he has done for you yet. He tells you the defense will send people to spy on you to see if you’re out doing cartwheels instead of languishing in pain as you claim. You prepare for this battle. 

YOUR LAWYER: Got some news. We’re going to settle out of court for $29,999.99 via a RELEASE OF ALL CLAIMS WITH GAG CLAUSE.  What this mean is that you, your family, friends, anyone one you ever meet, ever have known, or pass by on the street cannot talk about how the doctor destroyed your body

YOU: Wait. What? Um, no, and that’s a weird number. 

YOUR LAWYER: It’s a penny under $30,000. It’s a bribe. It’s all the defense will offer. 

YOU: But it was a diagnostic error, a treatment error, wrong patient selection, a bad medical device for which the doctor is heavily vested in and didn’t tell me about. It wasn’t an error at all – it was surgical assault! What happens at $30,000? 

YOUR LAWYER: At $30,000 the doctor has to report the complaint to the medical board and it will be made public. I will harass you into taking this so I can get paid my $20,000 and you won’t be sued by the defense. If you don’t, the doctor will charge you costs, file a restraining order, you’ll lose your house, the shirt off your back, do it. 

Sign. Sign. Sign. 

YOU: But the Independent Medical Expert didn’t even examine me. He concocted an operation that has nothing to do with this harm that was caused me and would kill me. He said it would fix me 110 percent. He perjured himself and is hired as an expert for the medical board. I continue to billed unexpected amounts from insurance because of fraud. 

YOUR LAWYER: Yep. I told you the IME would make something up to limit the payout. 

YOU: I can’t live on $9,999.99 for the rest of my life. NO. 

YOUR LAWYER: I’ll see you at a hearing. I’m dropping you as my client. 

YOU: But I can’t even get to the hearing; the surgeon disabled me. 

YOUR LAWYER: Stop whining. No one wants to hear it. 

Moving forward, the medical board, health agencies, FDA, Dept. of Consumer Affairs, consumer and doctor’s insurance, and colluding doctors all side with the offending doctor; your legislators tell you they can’t pass laws because the doctor’s lobbies are too strong. Good doctors finally examine you and sympathize, but they can’t do much to help at that point. The police and D.A. won’t take the cases since the medical board denied it. You watch in horror as other people cry out online about being abused by this doctor. 

You wake up every day hoping to realize it was bad dream but instead you have to deal with mounting medical bills, pain, disability, character assassination, and a lost life. 

Calls continue to come in requesting your professional services. That cute guy is still waiting to meet you for a bowl of soup. The woman of your dreams expected a marriage proposal. Your kids are in shock and miss out on the parent you could have been. 

I know you’re waiting for the happy ending. Articles are often wrapped up in a bow at the end, but not this one. Welcome to the medical / legal system in America. I wrote this article to set a base for articles that are to follow. 

 

(Sasha Lauren, author of The Paris Predicament, a novel, is a patient safety educator and Citywatch contributor. She writes about the poorly regulated medical field, bad medical practices, and medical harm. As a licensed massage therapist, she gave over 30,000 hours of therapeutic massage and taught massage, relaxation, and behavioral health skills. Her approach is holistic and preventative.) (The information presented in this article is not for personal medical or legal advice or instruction.)