War Stories: Of Doctors that say Oops and more. . .

As a medical malpractice attorney one quickly learns the indelicate balance between dealing with truly horrific tragedy, to both patients and, for the most part, well-meaning doctors, while still being open to finding the moments of unintentional hilarity which such tragedy occasionally provides. Not nearly as callous as it sounds.

There is a long tradition of “gallows humor.” It’s one of the few things we colonists retained from our British roots. And frankly if you work in the medical or in the medial-legal arena, you strike the balance quickly or you burn out. But I digress.

Imagine my surprise when a patient I was deposing in my former defense life, was able to inform me of the exact moment his surgical misadventure began. “And that’s when I heard the doctor say, ‘Oops!’” Context being key, this was a patient undergoing extensive exploratory laparotomy (stomach opened up and people poking around looking) under…wait for it…general anesthesia (Yes, that’s the one where you are unconscious). Yet despite this, he insisted he was awake and alert enough to hear the “excited utterance of the surgeon.” Yes, we all saw the 60 minutes piece or other about people being “awake” during surgery and the glorious television show House, recently had an episode about “locked in syndrome” with a patient literally trapped in his own body and unable to communicate.

Reality check No. 1: These are extremely rare and infrequently documented medical occurrences. Fine, you smugly say, maybe this was one of those. Reality check No. 2: Any one who has ever been in an actual OR, not a television portrayal of one, knows that the expression “Oops” is the very least likely 4 letter utterance of the string of 4 letter uttererances which would come out of any surgeon’s mouth if a mistake were made.

In the case of Dr. Oops, I actually used this very argument to discredit the patient who experienced a very normal postoperative complication. While I’m sure he and his counsel thought they had the case of the century, sometimes over-embelishment is not adviseable.

Contrast this with the surgeon who loudly asked his receptionist if, “The pain in the ass” had left the office following her postoperative visit. Unfortunately for my defense of the case, the pain in the ass was standing next to the receptionist at the time. Recognizing that a jury might be able to imagine a scenario whereby this surgeon might have been inattentive to his patient’s complaints of postoperative pain which might have delayed her diagnosis and subsequent re-surgery, we made the decision to settle that one.

To demonstrate that I do tend to win far more than I lose, I relate the concluding anectode of “the superstitious expert.” In seeking to establish that the medical complication experienced by a patient was a known and accepted (by the doctors anyway) risk of the procedure, It occured to me to ask the Expert Witness for the patient if it had ever happened to him while performing the surgery. Hoping that he would simply admit that it had, the expert instead provided me with the perfect closing argument, knocking on the ledge of the witness stand (knock on wood) he said, “No, actually that hasn’t happened to me, yet.” Give it a moment. Won at trial and won on Appeal to the Superior Court of PA too.

posted by David Marc Schwadron, Esq.