Medicine and the Law: Privileges 11/95
In PRIVILEGES, Frederick Forsyth develops a scene between an attorney and his client. Under the general topic of medicine and the law, a paraphrase on hospital PRIVILEGES places the issue in perspective. With due apologies and thanks to Forsyth:
Dr. Shaddock received a letter that his hospital privileges had been suspended on the basis of three records. He recognized the three patients and knew that he had multiple consultants on each. How could they single him out as the one that was at fault when all had participated? On the advice of his attorney, he obtained outside opinions on each case by sending a copy of the records to two professors, and two practicing clinicians. All four supported him in all that he did. He appealed to the medical executive committee, but was not supported. He went through the hearing process and lost. He appealed to the Judicial Review of the Hospital Board which supported the hospital committee. He couldn't understand how he could be universally supported by experts from other communities and not be cleared by his own peers.
Dr. Shaddock expressed these same sentiments when he was closeted with his attorney. The lawyer expressed his distaste for the letter of summary suspension, the hearing verdict, and listened with sympathy to Shaddock's explanation of his former association with his adversaries.
"On the basis of what you say and in view of these excellent outside record reviews, there seems no doubt that a primae facie injustice has been done to you by the medicine committee and the hospital," he said.
"Then they'll damn well have to reverse the termination and apologize," said Shaddock hotly.
"In principle, yes," said the lawyer. "I think as a first step it would be advisable for me to write to the hospital on your behalf, explaining that it is your view that you have been unjustly expelled and supported by overwhelming outside evidence and seek redress in the form of a reinstatement and an apology."
The letter from the hospital eventually came and it was signed by the staff secretary. It was politely dismissive.
The lawyer stated that he had dealings with hospitals on several occasions before and this was a standard response. Once they have made a decision, it is pretty well fixed in stone.
"So what does that leave?" asked Shaddock.
"Not much." said the attorney. "I'm afraid that only leaves litigation. A suit may make the hospital reinstate you."
"But surely they'd have to. It's an open-and-shut case," said Shaddock.
"Let me be very frank with you," said the attorney. "In hospital staff issues, there is no such thing as an open-and-shut case. For in effect there is no clear law in the matter. Hospitals are given wide discretionary powers."
"But surely I don't have to prove my innocence?" said Shaddock.
"In effect, yes," said the attorney. "You see, you would be the plaintiff and the hospital the defendant. You would have to prove that the hospital knew that you were providing good care. They would simply say that the Medical Staff record appeared to be reasonable to the lay members of the board and that they acted in good faith."
"Are you advising me not to sue?" asked Shaddock. "Are you seriously suggesting I should accept being treated to a bunch of lies by a chief of medicine who never bothered to check his facts and that I should accept ruin in my practice, and not complain?"
"Dr. Shaddock, let me be frank with you. It is sometimes suggested of us lawyers that we encourage our clients to sue right, left and center, because such action obviously enables us to earn large fees. Actually, the reverse is usually the case. We in the legal profession are only too well aware of the costs of litigation."
Shaddock thought over the question of the cost of justice, something he had seldom considered before. "How high could they run?"
"They could ruin you," said the attorney.
"I thought in this country all men had equal recourse to the law," said Shaddock.
"In theory, yes, In practice it is often quite different," said the lawyer. "Are you a rich man, Dr. Shaddock?"
"No. I run a small practice. In these days that means I have to run on a knife edge of liquidity. I have worked hard all my life, and I get by. I own my house, my car, have a self employed pension, a life insurance policy, a few thousand of savings. I'm just an ordinary physician."
"That's my point," said the attorney. "Nowadays, only the rich can sue the rich, and never more so than in the field of liability, where a man may win his case but have to pay his own costs. After a long case, not to mention appeal, the costs may be ten times the awarded damages.
"Hospitals carry heavy insurance policies for liability. They can employ the blue-chip lawyers, the costliest of the Bar. So, when faced with -- if you will excuse me -- a little man, they tend to face him down. With a little dexterity a case can be delayed from coming to court for years during which time the costs to both sides mount and mount. The preparation of the case alone can cost tens of thousands. If it gets to court, the costs skyrocket as the barristers, with a junior tagging along, will escalate their fees."
"How high could the costs go?" asked Shaddock.
"For a lengthy case, with years of preparation, even excluding a possible appeal, it could easily be a hundred thousand dollars, and possibly more" said the attorney. "Even that's not the end of it."
"What else should I know?" asked Shaddock.
"If you won, got damages and costs awarded against the defendant, that is the hospital, you would get the damages clear. But if the judge made no order as to costs, which they only tend to do in the worst of cases, you would have to carry your own costs. If you lost, the judge could even award the defendants' costs against you, in addition to your own. Even if you won the appeal, without an order as to costs, you would be ruined.
"Then there is the mud-slinging. After two years people have long forgotten the original suspension. The court case repeats it all again, with a mass of further material and allegations. Although you would be suing, the hospital's counsel would have the task of destroying your reputation as an honest physician, in the interests of his client. Sling enough mud, and some will stick. There have been men, too numerous to mention, who have won their cases and emerged with very smeared reputations. In court all allegations can be printed publicly and do not have to be substantiated."
"So it looks like ruin either way," said Shaddock.
"I'm sorry, truly sorry," said the attorney. "I could encourage you to begin a lengthy and costly lawsuit, but I honestly feel the best favor I can do for you is to point out the hazards and pitfalls as they really are. There are many people who hotly entered into litigation and lived to regret it bitterly. Some have never recovered from the years of strain and financial worry of it all."
Sadly Dr. Shaddock arose and took leave of his attorney. "Thanks," he said quietly, "for your honesty."