When Doctors Make MistakesHow should Christians respond to medical malpractice?
by Janet Lynn Mitchell
How should a Christian respond when her physician makes a mistake? If you're like most of us, you'd probably rather not ask the question and hope you never have to answer it. But each year medical mistakes kill between 44,000 and 98,000 hospitalized Americans—more than car accidents, breast cancer, or AIDS. Thousands more are injured, often causing permanent disabilities.
Not only does medical malpractice affect its victims and perpetrators, it creates higher insurance costs and the fear of baseless and/or excessive litigation for everyone else too. Increasingly, women in many parts of the country have a hard time finding a local OB/GYN from whom to receive pregnancy care because many obstetricians have either given up delivering babies or have moved to other locales to avoid skyrocketing malpractice insurance rates.
In this TCW Special Report, we present two perspectives on the problem of medical malpractice, including Janet Mitchell's harrowing tale of surgery gone wrong and her crusade to hold her doctors accountable. Dr. David Stevens, executive director of the Christian Medical and Dental Associations, shares biblically based suggestions for dealing with malpractice, and we provide six tips to getting the best healthcare possible.
So, how should you respond if your doctor makes a mistake? Read on. —The Editors
I never saw the melted ice cream that caused me to slip haphazardly and twist my right knee. As I sat in my orthopedic surgeon's office waiting to hear how much damage had been done, I thought back 15 years to the first surgery I had to straighten my legs, which had grown crooked from overcorrecting a congenital hip problem diagnosed when I was an infant. At the age of 17, I was an active teenager with an unusual gait, but I was told by my physicians that without surgery I faced debilitating arthritis in my knees by the age of 30. "We'll cut your tibias (one of the two bones that make up a person's shin), rotate them slightly, and let them heal," my doctors had said. They made it sound simple, but it wasn't.
I had surgery on my right leg first. Seven weeks later, I underwent the same surgery on my left. But when both casts were removed and I tried to rise from my wheelchair, my right leg buckled beneath me. I couldn't stand, much less walk. My surgeons, Dr. Ulild* and Dr. Allgood*, explained that the poor surgical results were due to "the way God made you in your mother's womb." Over the next three years, I underwent seven additional surgeries—three of them in another state, thousands of miles away from friends and family—in my bid to walk again. In one procedure, my tendons were strung to function in place of my ligaments, which had turned to mush. Although I did walk again, I was often unsteady and always feared falling.
Now what I dreaded had happened, and I was once again back in Dr. Ulild's office. He entered the room and said the words that changed my life: "It's time you know the truth." He revealed that the first surgery I underwent 15 years ago had been botched. "Dr. Allgood cut your bone at the wrong angle. I tried telling him not to cut there, but Allgood goes too fast. Your ligaments were cut. The rest of your surgeries on your right knee were to fix his mistakes."
My heart pounded. My physicians had lied to me?
I fought tears as Dr. Ulild told me the fall hadn't re-injured my knee, but the botched surgeries had resulted in degenerative arthritis that was far worse than anything I feared when I was 17. At 32-years- old, my best option was knee-replacement surgery, but it came with great risks. Due to the amount of nerve damage I'd suffered through the multiple surgeries, I could lose my leg entirely.
As I sat speechless, Dr. Ulild reached for the set of X-rays I'd brought to my appointment that were taken while I was under the care of the out-of-state surgeon. "I'll make sure you get these back. I want to evaluate and compare them with your others," he said.
Facing the TruthI drove home in a fog. I felt betrayed and scared. Months before Dr. Ulild's revelation, I'd delivered a premature baby. Weeks later my six-year-old daughter was diagnosed with juvenile diabetes. Now they were both being treated at the same local hospital where my botched surgery had taken place years ago. Were my kids safe there? Fear filled my mind.
Then I got angry. My teen years had been filled with crutches, braces, and wheelchairs—all because of my doctors' secret mistakes and lies. As I tried to process everything, God brought to mind Genesis 50:20, where Joseph confidently stated, "You meant evil against me but God meant it for good." I wanted to have a heart as gracious as Joseph's. God, please bless this mess! I prayed.
Weeks later my friend Jane went with me to Dr. Ulild's office to pick up my X-rays.
"You can't have them," the nurse insisted. "I've been told to guard them with my life!"
"But they're mine … "
"Janet, they're not here."
"They have to be," I insisted.
Confused, the nurse laid my medical file down and went to look again. I glanced at Jane—she nodded. Grabbing my medical file, we rushed to my car and began to read. Right away we realized an entire year was missing from my medical chart. Then we started to see mistakes.
"Janet, this states you had hip surgery, not surgery on your leg. Instead of being wheelchair bound, it says you were walking when you left the hospital!"
Once back at Jane's, I called my cousin, George, an attorney in Nebraska. I told him about Dr. Ulild's confession and the "hot" medical file. He instructed me to make a copy of the entire chart and return it immediately.
The next day, Jane and I anonymously returned the file. At George's suggestion, our next stop was the local courthouse. There we discovered that my doctors had been sued more than 50 times, including charges of surgery conducted on the wrong limb and wrongful death. Several court files were stamped with the word dismissed.
"Means there was a pay-off," the clerk told me. "That's what's stamped when a case settles out of court. A judge may have tossed out one or two, or the plaintiff might have dropped his case, but for the most part, I'd say the docs made a deal."
I knew that when a physician settled a lawsuit in California, a confidentiality agreement usually followed— one that precluded the State Medical Board from being informed of any possible wrongdoing. That meant Dr. Allgood and Dr. Ulild had long histories of allegations from patients but probably had never been held accountable for their actions by the agency charged with protecting the public.
To Sue, or Not to Sue?My heart was full of rage and betrayal. But as a Christian, I knew I needed to forgive my doctors. Through counseling I came to understand that forgiveness isn't saying what happened to me didn't matter—it's releasing my doctors into God's hands. Forgiveness could take place regardless of my emotions; it was my choice—an act of obedience to God.
But it's one thing to forgive my physicians for what they did to me; it's another to stand by while they hurt others. I was challenged by the idea that sometimes our faith requires action. So my husband, Marty, and I prayed and sought godly counsel from our pastor, elders, and family.
In light of the level of ongoing deception involved and its effect not just on me but on other patients as well, Marty and I knew God was directing us to take legal action. We filed a lawsuit for professional negligence, negligent misrepresentation, fraud, and concealment.
An Uphill BattleObtaining legal representation wasn't easy. One prospective attorney told us 90 percent of all medical malpractice cases settle. Ten percent actually go to trial, and physicians win 90 percent of the time. But God provided. Through my cousin, George, I met Bridgett Halvorson, a young, confident attorney from Northern California who was willing to take my case.
It wasn't long before Dr. Allgood revealed that he didn't carry malpractice insurance—a hospital requirement. Outraged, I met with the legal department of the hospital where my surgeries were performed and informed them of Dr. Allgood's lack of insurance. His staff privileges were terminated that afternoon.
It was a small victory, but my doctors were determined to win the battle. Before we could get to trial, they filed a motion for summary judgment. After reviewing the case, the judge waived a jury trial and ruled in favor of the physicians. Just like that, I lost my right to sue.
We appealed the ruling, but the judge upheld his decision. I felt confused. God, didn't you direct me to file a lawsuit? Tell me what you want me to do. Marty and I prayed and decided to continue to pursue our legal options. We filed another appeal.
A year and a half later, we sat before a panel of three judges at the Appellate Court. They were disgusted with the course the case had taken thus far; after reviewing the evidence, one judge said, "If I were these doctors, I would plead the Fifth and run out of town!" That afternoon they reversed the lower court's ruling and I was headed back to trial.
At TrialIn May of 1999, seven years after I'd learned of the malpractice and 22 years after the botched surgery, my trial finally began. Attorney Marjorie Day, a 76-year-old elder in my church, came out of retirement to try my case with Bridgett by her side. Dr. Allgood represented himself, and a pattern of deception and incompetence soon came into focus. Dr. Ulild testified that no surgical mistake occurred; he had suffered "a wrong memory synapse" when he told me otherwise. Dr. Allgood admitted my medical records had been discarded. When asked about Informed Consent prior to surgery, Dr. Allgood said, "I've never gone along with Informed Consent." And indeed, he'd radically downplayed the risks associated with my first surgery and then lied about what took place in subsequent procedures.
Within weeks, the jury concluded my surgeons had intentionally concealed vital information concerning my medical care, and this intentional concealment had caused me harm. From defeat to victory, God was faithful!
With judgments in hand, I filed a complaint with the California Medical Board. Regretfully, they informed me they were unable to investigate my doctors. The existing law stated only occurrences that had taken place within the last seven years could be investigated. The statute of limitations held no provision for cases where fraud and/or concealment were issues.
I then wrote one letter to Assemblyman Bill Campbell of California, sharing my story. He introduced legislation born out of my medical disaster and within months, Assembly Bill 2571 passed both the State Assembly and the Senate unanimously. Physicians in California can no longer change medical records or conceal medical information and rely on a statute to exonerate them from investigation. Congress is currently considering similar legislation on the federal level.
Speaking UpToday, I have a passion to educate others about how they can partner with their physicians and manage their own healthcare. I also continue to speak on behalf of legislation to help prevent medical malpractice. Recently, I made my fourth trip to my state's capital to testify, in an effort to protect the patients of tomorrow.
I don't know exactly what the future holds for my knee. For now, I can walk with occasional help from a cane or brace, and I use my wheelchair for extended trips to the mall or to Disneyland. When I think about the knee-replacement surgery ahead and the possibility of losing my leg, I take a deep breath and draw upon my faith. God has assured me that walking or not, I will be OK. While physicians can make mistakes, the Great Physician never does.
Janet Lynn Mitchell is the author of A Special Kind of Love (Broadman & Holman) and lives in California.
*Names have been changed
