What My Experiences Have Taught Me About Meritless Malpractice Cases

I vividly remember my first malpractice suit. In the 1980s there were no rules about how many hours resident physicians worked. Like most of my colleagues, I worked over 100 hours a week. It’s not surprising that after two years, I succumbed to meningitis and pneumonia.

The day after I was discharged from the hospital, I was lying flat on my back because of a post-spinal tap headache, and I opened a letter announcing that I was being sued for malpractice. The case was that of a child who went into cardiac arrest and because I was on call that night, I responded to the “code blue.” My only encounter with the patient had been trying to save her young life with cardiac resuscitation, which lasted for more than two hours and in which I correctly diagnosed pericardial tamponade and got the cardiac surgeons involved.

It was months before I realized I was caught up in a case of mistaken identity. As it turned out, I was practically the twin of the young female attending physician on the case. The family mistook me for the attending and sued me instead. After a year the case against me was “non-suited” (meaning, dropped) but 37 years later, every time I apply for privileges at a new hospital, I have to provide the details because it’s part of my malpractice history. This case of mistaken identity will follow me the rest of my life. I’ve also been sued because a patient was angry about her bill. Even though that case, too, was non-suited, it continues to follow me after more than 30 years.

There’s only been one time (so far) that money was paid out to settle a malpractice claim against me. A patient with severe diabetes who was an IV drug abuser developed necrotizing fasciitis at one of his illicit drug injection sites. For many days he was at death’s door in the intensive care unit (ICU) at a major teaching hospital. His life was saved by the extraordinary care of nearly a dozen physicians, but he developed a pressure ulcer on his buttock in the ICU during a period of prolonged hypotension.

Despite his survival against all odds, the patient sued over his pressure ulcer and every physician on the case was named. I was named as well, but unlike the other physicians, I had never actually seen the patient. The judge allowed me to be added to the suit after the statute of limitations for doing so had passed, because I was the medical director of the wound center. The plaintiff asserted that since pressure ulcers were a sign of medical negligence, they should all be preventable, and since I was the director of the wound center, I was personally responsible for failing to prevent pressure ulcers from happening anywhere in a 1,000-bed hospital.

I remember the day all 12 busy physicians (many of them intensive care specialists who had to take time away from the unit) were required to show up personally for the “mediation” and against our vehement protestations, the university (our employer) settled the case. This means I am included in the national database where payments for malpractice are recorded. I reiterate that the case involved a patient I never saw personally, whose illness was self-inflicted, whose life was saved by heroic measures, whose pressure ulcer was medically unpreventable—and for whom I was held accountable for because “all pressure ulcers are preventable” (sic) and I was the director of the wound center.

That experience was a turning point for me. It was the point at which I decided to become involved as an expert witness in medical malpractice cases, and to understand how things had gone so horribly wrong with regard to pressure ulcer litigation in the United States.

In this issue of TWC, I will summarize what I have learned that can enable meritless pressure ulcer cases to prevail in court. One very disturbing discovery was the fact that many board members of the National Pressure Injury Advisory Panel (NPIAP) are active as expert witnesses in malpractice cases, working almost exclusively for plaintiffs’ attorneys, as I learned from easily obtainable “testifying reports.”¹ This would seem to represent a conflict of interest for a NPIAP board member since it causes me, at least, to question the motives behind the work of the NPIAP.

The malpractice system exists to provide patients and their families with a modicum of justice when medical care is not provided according to accepted standards and patients suffer as a result. However, even meritless malpractice cases follow clinicians for the rest of their lives. For physicians accused of negligence, no matter the outcome of the case, it is never really over. If we want justice to be served in the realm of medical malpractice, particularly among patients who experience wounds, we are going to have to do a better job than we are now.

Caroline E. Fife is Chief Medical Officer at Intellicure Inc., The Woodlands, TX; executive director of the U.S. Wound Registry; medical director of St. Luke’s Wound Clinic, The Woodlands; and co-chair of the Alliance of Wound Care Stakeholders.

1. Schank JE, Fife CE. The national plaintiff’s advisory panel? Pressure ulcers, litigation and the NPUAP’s new staging system. Ostomy Wound Manage. 2018;64(2).https://www.o-wm.com/article/national-plaintiffs-advisory-panel-pressure-ulcers-litigation-and-npuaps-new-staging-system