Redress for a double doctor screwup?

January 16, 2012 4:22 PM

We recently had a highly traumatic hospital experience involving a 3-year-old and two doctor errors, and we're wondering what our redress options are.

Last week we took our 3-year-old daughter in for a routine colonoscopy with a (highly recommended) doctor at Hospital #1. (She'd had blood in her poop since infanthood.) After an apparently successful procedure, in which a polyp was found and removed, we took her home. But her bleeding increased drastically, and at the doctor's advice we consented to another colonoscopy later that same day, which revealed that the polyp had not been fully cauterized. Another apparently successful procedure and a night in the hospital with some serious misgivings.

The next day our daughter had a fever and bad abdominal pain. We decided to take her to a different hospital, where based on her history and symptoms the surgeons recommended an arthroscopic procedure to check for a perforated bowel. That's three procedures in two days on a three-year-old - talk about a difficult choice. We agreed, and sure enough they found one. We all spent the next three days at hospital #2. Our daughter seems to be recovering well.

We're not out to end careers or retire early on lawsuit money. We accept honest mistakes are possible in medicine as in anything else. I'm not even sure this qualifies as malpractice - and my impression from here and elsewhere is that those cases are so tough to win they're essentially not worth pursuing for anything short of death/permanent disability/six-figure amounts anyway.

But given that it was two errors by the same doctor (in one day!), we don't think it's unreasonable to have our medical bills covered, at the very least. That's not to mention the week of lost income for two freelancers staying at the hospital, much less the effects of what was easily the most stressful event of our lives to date. We're shell-shocked, and our trust in doctors may never fully recover.

What are our options here, especially since the bills will be divided between two hospitals? Is there any hope of getting hospital #1 to cover procedure #2 and/or #1? What about procedure #3 at hospital #2? Is just the threat of a malpractice lawsuit enough to convince a hospital to work with you on something like this? Email [e-mail]

posted by anonymous to grab bag (14 answers total)

Talking with an attorney is free, and will give you a more realistic idea of your chance of winning such a lawsuit. Consult an attorney.

If it were me, my thought would be: two errors in one day on my child. How many other errors on other children did that doctor make the same day?
posted by anastasiav at 4:37 PM on January 16 [5 favorites]

IANAL. TINLA. Get a lawyer ASAP.

None of us here are going to be able to make a reasonable evaluation of what happened, whether there was or wasn't malpractice, what should and shouldn't be paid for, or what a possible malpractice suit the event could result in. You really need to speak to a lawyer with malpractice experience regarding this.
posted by Mister Fabulous at 4:40 PM on January 16 [2 favorites]

IANAL. But I recommend you get a free consult with one. It's very likely that hospital #1 will not feel obligated to cover the bills at hospital #2 unless it's proven that it was indeed negligence, and they'll likely push that off on the doctor. Attorneys see this stuff all the time and can tell you what you can expect - it will likely be the only way you have a good idea of how to go forward with this.

My sympathies, though - twice I was the kid who was in the hospital with parents that were scared to death. I hope your little one is better and soon.
posted by azpenguin at 4:41 PM on January 16 [1 favorite]

I can't speak to anything legal, or pediatric, but I do know that for adults the risks associated with colonoscopy include bowel performation. Since perforation does happen, I'm not sure it is an 'error' per se, given that it is an expected risk associated with the procedure.

That said, I hope your little one is doing better, and that your nerves aren't totally shattered after an experience like this.
posted by lulu68 at 4:42 PM on January 16 [2 favorites]

Both the MD and the hospital carry malpractice insurance just for situations like this. I applaud your decision not to use the courts for revenge, but you need to convince hospital #1 that their doctor made a mistake. Getting a lawyer to help you is step #1.
posted by Chris4d at 5:01 PM on January 16 [2 favorites]

Yes, consult a lawyer, but first stop and write everything down that you remember, including conversations with doctors and nurses. It could be months before a case goes anywhere (if at all) and you don't want to be wondering if you talked to the doctor at 2 pm or 3 pm.

I had a lot of surgeries as a child so my heart goes out to your little one.
posted by desjardins at 5:04 PM on January 16 [4 favorites]

I am so very sorry you've had a scary experience with your little one, and I hope that your daughter has made an excellent recovery.

This is truly unanswerable by anyone in the mefi community who may be qualified to do so, and in any event, there are a number of details that would be of interest to a qualified person that are not here, and that I wouldn't ever recommend you make available on the internet--even anonymously. Your experience is exceptionally complex, and not for small reasons (like the involvement of another large and complex institution--hospital #2). For example, your proposed redresses (one organization taking over the costs of another in restitution without the opportunity to provide second opinions from their own organization), suggest that it is imperative you seek legal council if only to have the opportunity to get a crash course in how hospital systems are organized, how harm and liability are identified, and what burdens you assume versus the organizations.

Pediatric medical intervention is sufficiently risk-adverse that organizations have incredibly specific processes for addressing any potential outcome. Either hospital will also have patient advocacy and ombudsmen available to you to educate you about any processes you didn't understand during informed consent, as well as what you need to do to report any possible harm or adverse outcomes (and what was/are your own responsibilities). The involvement of more than one system of healthcare providers will make this more difficult, which is why you really, really need counsel.

Give your kiddo an extra tuck-in this evening and take good care.
posted by rumposinc at 5:13 PM on January 16 [7 favorites]

Please, please listen to rumposinc, this question is so very far from what AskMe can possibly answer in anything like good faith or accurate knowledge. To start out with you need counsel who can advise on your rights with hospital #1 but you really need to ask the mods to nuke this question from orbit. Right now it is aggressively google indexed and can only be used against you.
posted by Blasdelb at 6:27 PM on January 16 [6 favorites]

Nthing the advice above (and make sure you talk to someone known for plaintiff side med mal) but mostly just wanted to give you a big hug. So glad your baby's ok. I almost cried reading this and thinking about my toddlers in this situation.
posted by fingersandtoes at 7:19 PM on January 16

We're not out to end careers or retire early on lawsuit money. We accept honest mistakes are possible in medicine as in anything else. I'm not even sure this qualifies as malpractice - and my impression from here and elsewhere is that those cases are so tough to win they're essentially not worth pursuing for anything short of death/permanent disability/six-figure amounts anyway.

One misconception people have about medical malpractice is that a doctor being wrong, or doctor making a mistake, constitutes malpractice. It doesn't, necessarily. The question is whether the doctor deviated from the accepted standard of care. The doctor may completely abide by the accepted standard of care and still get it wrong, can still make a mistake, and if the very, very, very sharp lawyer who defends the doctor can persuade the jury that this was an extraordinary situation in which this doctor abided by the standard of care and still made a mistake or got it wrong and unfortunately multiple procedures were required in a two day period -- then you lose.

The fact that you and your child went through all that, as terrible as it was for you, does not even begin to suggest malpractice to me. You haven't stated anything that sounds like a deviation from the standard of care. Getting it wrong isn't malpractice.

So -- if you pursue the approach of trying to get the hospital to pay your bills -- be prepared for a very aggressive response that they did an extraordinary service for your child and that your demand for free service shows a fundamental misunderstanding of medicine and the challenges of treating a child who is having an unusual medical emergency. The multiple procedures may have been necessitated by the understandable reluctance of the doctors to take the most invasive, aggressive approach on such a small child.

A difficult medical emergency that was hard to treat, and stressful, is not something that should be provided for free. Arguably they earned their fee many times over.
posted by jayder at 8:10 PM on January 16 [1 favorite]

Listen to rumposinc.
posted by elizeh at 8:38 PM on January 16 [2 favorites]

Please don't heed any legal advice in this thread. There are A LOT of really crucial details that you have left out unaware of their importance, AND PLEASE CONTINUE TO LEAVE THEM OUT, that a professional malpractice lawyer would know to clarify. This question is profoundly unanswerable by us.

A lawyer providing you with a consultation or on retainer will be able to asses the merits of any possible case or leverage for arbitration that you might have. No one in this thread has really talked about the biggest merits or challenges that really pop out from either extremely appropriate caution or ignorance, counsel can help you sort this all out. If nothing else they would be able to help educate you about how best to interact with medical institutions going forward. Please nuke this thread now and find a lawyer to listen to you in the morning.
posted by Blasdelb at 9:30 PM on January 16 [1 favorite]

But given that it was two errors by the same doctor (in one day!), we don't think it's unreasonable to have our medical bills covered, at the very least.

This is not the way this works. Or rather, you may potentially be handed an amount of money that will cover these costs, but the mechanisms involved are not what you think they are, nor are they as linear and straightforward as any sane person would imagine them to be. Listen to rumposinc.
posted by DarlingBri at 10:18 PM on January 16

Just a slight amendment: Don't talk to a lawyer. Talk to several lawyers. Most lawyers are good; some are not. If you get a couple or three opinions or sets of information and they are consistent, you can be a lot more confident in your path of action.

My sympathies.
posted by Mr.Know-it-some at 7:23 AM on January 17