“Forced to try a case against the most innocent guy of all.”

I’m happy to report that transplant surgeon Dr. Tom Diflo, my college and medical school classmate, was found not liable for malpractice. I’m outraged to report that after the trial was over, the plaintiff’s lawyer admitted that he had known all along that Dr. Diflo was not guilty of the charges he filed against him.

The case was a medical tragedy (Man dies of uterine cancer; who’s to blame?). Kenneth Liew had been on dialysis for years before he received a kidney transplant in 2002. The kidney came from a woman who had died of a stroke. Unfortunately, unbeknownst to her and everyone else, she also had uterine cancer. Seven months after the surgery, Mr. Liew died.

In an interview with the New York Daily News, the plaintiff’s lawyer, Daniel Buttafuoco, seeking to explain his loss of the case, made the outrageous claim:

Dr. Diflo had no idea the organ was bad … We were forced to try a case against the most innocent guy of all.

Parse those sentences and you will come face to face with what is wrong with the malpractice system in this country.

“the most innocent guy of all”

Buttafuoco acknowledges that he knew that Dr. Diflo had not been responsible for the tragedy because the doctor could not have known that that the organ was defective. The widow and her lawyers mounted a legal case that lasted eight years and surely cost hundreds of thousands of dollars for no better reason than because they could. It certainly was not because they believed Dr. Diflo was to blame; they knew all along that he couldn’t possibly be to blame. Nonetheless, they went before a jury and offered testimony that they knew to be untrue.

In other words cases of medical malpractice are knowingly filed against doctors who haven’t committed malpractice. It’s like a lottery ticket; you file suit and hope you’ll strike it big. Just the luck of the draw for the lawyer and the client; too bad for the doctor who just wasted eight years of his life in fighting the claim.

“we were forced to try a case”

No, no one forced Mrs. Liew to sue, and no one forced Buttafuoco to file the case. Indeed, ethically, Buttafuoco was obligated to refrain from filing because he knew the accusations to be untrue. So why do they feel they were “forced”? That speaks to the prevailing view of bad outcomes and the purposes of malpractice suits.

Americans seem to believe that when something bad happens, it must be someone’s fault. Nothing is ever attributed to bad luck. Blame must be pinned on someone, or, more accurately, on someone else. Although it was well documented that Mr. Liew made the decision to keep the kidney, his widow and her lawyer argued that Dr. Diflo should have pressured him to have the kidney removed. But a bedrock principle of informed consent is that the patient should NOT be pressured into any course of action. The patient should be offered all available information and left to make his own decision. No matter; someone else must be blamed.

It’s not enough merely to blame someone. They must be forced to pay millions of dollars. The progression of thought appears to be: something bad happened to me (in this case Mrs. Liew lost her husband); it was someone else’s fault; I deserve lots of money for no other reason than because something bad happened.

“We were forced to try a case against the most innocent guy of all.”

The determination of whom to sue had nothing to do with guilt or innocence. It was all about who had a “deep pocket” that could potentially yield millions. The lawyer didn’t sue Dr. Diflo because he did something wrong. He sued him because he had insurance that could potentially pay millions.

Indeed, the fact that Dr. Diflo had done nothing wrong probably figured into his calculations. He might have thought that he could get a quick settlement simply based on “nuisance value.” The insurance company might calculate that it was worth paying him and his client a hundred thousand dollars rather than spend many hundreds of thousands of dollars on a suit that they would ultimately win. The lawyer guessed wrong in this case, but many other lawyers have made quick money by accepting a settlement to make a case go away.

Is it any wonder than that doctors condemn the current medical malpractice system? Doctors get sued when they haven’t done anything wrong because patients believe that if something bad happens, someone must pay them money. Doctors get sued when they haven’t done anything wrong because the doctor has insurance that could pay millions. Doctors get sued when they haven’t done anything wrong because patients can make easy money if the insurance company settles because it is cheaper to settle than to defend a doctor who hasn’t done anything wrong.

It’s no wonder that most medical malpractice suits end in a judgment for the doctor. Medical malpractice suits are often filed against doctors who have done nothing wrong. Fortunately, juries, like the jury in this tragic case, can see that.

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