A Malpractice Lawsuit Gives Emergency Physician Lifelong Lessons

It was a beautiful spring day in 1981, back when I was working at a community hospital in Phoenix, Ariz. I had just gotten up from my day nap after a busy overnight shift. My doorbell rang and a nicely dressed young man asked if Daniel Mayer was there. As that is not my name—I’m Dan the tribe and not Daniel the prophet—I immediately said “No.” Realizing that he was just a messenger, I quickly reversed my answer and admitted that yes, that was me. He handed me an envelope and walked off. So started my voyage down the rabbit hole of being sued for medical malpractice.

Having never had any education about the topic of malpractice, I was reasonably petrified that, first, I had just been sued and, second, I may have made some horrible mistake that injured a patient. I carefully read the complaint that had just been served to me. The information was so vague that I could only surmise that the alleged malpractice took place four years earlier when I was a family medicine resident on my rotation in rural Maine.

I called my residency program. They recommended me to a defense firm in Portland, Maine, essentially a continent away from Phoenix, Ariz. The defense lawyer assigned to my case was excellent and educated me in the rules of medical malpractice and coached me through every step during the three-year process.

The first thing I learned was that I shouldn’t ignore the papers that I received. Those papers, called a summons and complaint, had to be answered within 30 days, otherwise I was tacitly admitting that I was guilty (i.e., negligent). Of course, the answer to this was clear, “I didn’t do it!”

I obtained the medical records from my residency program shortly after my first contact with my lawyer. The plaintiff, who was a 15-year-old camper at the time of the incident, alleged that I had performed a chiropractic maneuver that led to severe neck pain and prevented them from realizing their life’s ambition. On viewing the medical record, I was embarrassed by the brevity of my note—it was only about eight lines in total—and I had no recollection of the patient. There was nothing in the record about performing any maneuver on their neck short of palpation, which elicited pain. That’s all my attorney had to work with.

A few months later, I was served with another set of legal documents, the Bill of Particulars. This list detailed what the plaintiff alleged I had done that constituted malpractice. It was a comprehensive list of everything I did, didn’t do, or should have done. It felt like the worst day of my life. It was one thing to read about what a horrible error I had made, but it also said that I was a terrible physician and was reckless, too. According to the plaintiff, my behavior bordered on being downright evil.

I probably overreacted, but the language felt incredibly inflammatory. My lawyer reassured me, saying “it’s not personal, it’s business.” It was just the way lawyers do things. It certainly felt personal to me. A few months later—malpractice cases grind you down slowly—I had a conference with my attorney, who had gotten a medical record from the camp saying that the patient got a massage from a bunkmate after their visit with me and then complained about severe neck pain. I thought this would end things. Someone else obviously caused the problem. I started to feel better about myself. But I was wrong.

Two years after being served, I finally gave a deposition. It was short. Honestly, I didn’t have much to say as I had a brief medical record and no independent recollection of the encounter. My lawyer had prepared me to “only answer the questions asked” and not to answer any question about facts about which I was uncertain.

It was another year before anything else happened. A trial had been scheduled. This occurred in Portland, Maine, in the summer of 1984, seven years since the incident and three years since I was sued. Today, I can still vividly see the courtroom, the judge, the jury box with eight people who would judge whether I was guilty of malpractice, my attorney and his assistant, and the plaintiff and their attorney.

I was on the stand for a short time, as I didn’t have much to say except that I didn’t do what the plaintiff alleged. The camp nurse was unable to attend the trial and a video of her deposition testimony was presented. My expert was a local chiropractor, who I knew and had referred patients to when I was in family practice. He told the jury that the maneuver so precisely described by the plaintiff was a common chiropractic maneuver that was abandoned because too many chiropractors injured themselves doing it.

The plaintiff’s expert was a neurologist, who had been one of my instructors in residency. I felt betrayed. He testified about the plaintiff’s alleged injuries. When asked by my attorney in cross examination to give his diagnosis, he stated “cervical myalgia.” Then came the part that I will never forget. My attorney said, “We are just simple folks up here in Maine. Can you please explain what that means?” He just answered, “a pain in the neck.”

It took all my willpower not to look at the jury to see their reaction. My attorney had prepared me for this. He later told me that there were several subtle smirks among the jury members.

The jury went to deliberate; the next 90 minutes were among the longest of my life. When the jury came back and found me not liable, the case was over and I was relieved that I could start my new job in New York City unscathed.

Since then, I’ve learned a lot about medical malpractice, and have advised many students and colleagues about how to improve their experiences after being sued. I have taught about medical malpractice for more than 20 years to medical students and residents, and hopefully made the whole process less anxiety-provoking for them.

Since the first trial, I’ve been sued three more times. Here is my advice from these experiences.

  1. Never ignore a legal document. That’s what lawyers are for.
  2. Listen to your lawyer. Do what they say! But don’t be intimidated to the point where you are afraid to express your misgivings.
  3. Talk to your lawyer about anything that makes you uncomfortable. Pay attention to your feelings.
  4. Be the voice of good, evidence-based medicine (and science). You and your lawyer can figure out how to explain your defense to the jury.

Dr. Mayer is a board certified
emergency medicine
physician in Niskayuna, New
York.