When practical pressures mount and you're not completely blameless, mediation may be the best way out of a mess.
Dr. V, 42, opened his own urology practice after several years of working in a large clinic. Now, a year after setting up his own shop, he was finding there were some downsides to being a solo practitioner.
Overhead costs for the office — including a receptionist and malpractice insurance premiums —were substantial, and Dr. V was forced to squeeze in many patients each day to make ends meet. Sometimes this meant he couldn't spend as much time with a particular patient as he would have liked; but time was money, and he couldn't afford to waste any.
One afternoon, Dr. V found a distraught patient in his exam room. Mr. D, 66, was a retired postal worker with a host of existing conditions, including diabetes; a BMI of 33; and a history of congestive heart failure (CHF). He complained of severe pain and swelling of the scrotum and reported that he'd been experiencing discomfort for three days.
After a brief examination, Dr. V wrote in the chart that Mr. D's scrotum was “roughly the size of a cantaloupe” and attributed the swelling to edema caused by CHF. He advised the patient to return home, lie down with his legs elevated, and rest for the next several days.
“If the problem gets worse,” Dr. V counseled, “you should call your cardiologist.”
But Mr. D collapsed and died the next day. An autopsy determined the cause of death to be septic shock secondary to Fournier's gangrene.
The patient's sister, his only relative, consulted a plaintiffs' attorney who in turn called an expert urologist to determine if there was a case to be made. The expert explained that Fournier's gangrene is a form of necrotizing fasciitis with symptoms including pain, swelling, pus, odor, and extreme tenderness. It is most likely to develop in men aged 60-80 years; men with a predisposing condition, such as diabetes, obesity, or immune system disorder, are most at risk.
“Do you think Mr. D's death could have been prevented?” the attorney asked.
“Yes,” the expert urologist replied. “Given the severity of the swelling and the patient's comorbidities, he should have been sent straight to the hospital for immediate diagnostic testing. Blood tests or cultures would have confirmed the infection, and it would have been treated as a surgical emergency. Had he been operated on immediately, the infection would not have reached the bloodstream and caused septic shock.”
Armed with that assessment, the lawyer filed a malpractice suit against Dr. V, who was assigned a defense attorney by his malpractice insurance carrier.
The discovery process took months, with days and days of depositions. Dr. V was forced to close the office on the days that he was being deposed. When patients couldn't get immediate appointments, they began going elsewhere, and Dr. V's stress level kept rising along with his expenses.
At that point, the defense attorney suggested that mediation might be the best way to settle this case--if the plaintiff was agreeable. He explained that the mediator — usually a lawyer appointed by the court or local bar association — would discuss the case with both sides and help them come to a settlement.
Dr. V was visibly relieved. “That sounds like a good solution. I didn't spend as much time with the patient as I should have,” he admitted.
So, Mr. D's sister, Dr. V, their lawyers, and the mediator spent a day discussing the case, reaching a financial settlement that everyone could live with: $750,000.