I was recently reminded of an incident that occurred to a fellow (who we will call Mr. X) approximately 20 years ago. I pose the question of whether you would have sued for medical malpractice.

At that time, I was involved in a real estate deal and met with a rather affluent aristocratic fellow, Mr. X, who sought to buy an industrial property. My involvement in this matter had nothing to do with healthcare, but he asked that our meeting take place at his home. When we met, he explained that he was a post-cardiac surgery patient and that an unfortunate incident had occurred of which he was only vaguely aware of in real time as he was significantly addled with various drugs. His wife later clarified his foggy recollection.

Apparently, during his first cardiac surgery, his heart was moved and successfully replaced. Protocol required that before he was closed up, an x-ray be taken to ensure that none of the various surgical devices were left in his body. Despite the counting and the x-ray, unfortunately, a sponge was left inside of him. As a result, he required another round of surgery and his heart had to be moved and replaced once again. Mr. X happily reported that he survived both surgeries. Clearly, he was not billed for the second surgery.

When I met him, he had already gone back to his cardiologist and explained the whole story to him. Mr. X  believed that the second surgery posed a real danger to his health,  that his recovery and incapacity were increased, and that he had additional pain and suffering because of this incident.  His cardiologist told him that he could sue, but that he should recognize that a well-qualified surgeon (who was probably not at all at fault for what happened) as well as others would be distracted from their important work of saving lives. The question he posed was did Mr. X really want to inflict the rigors of litigation on a doctor, medical team and hospital, people who essentially had dedicated their lives to helping others. Mr. X decided not to pursue any potential claims.

Due to my involvement in the healthcare arena (although my firm does not handle medical malpractice), and because we represent healthcare providers in other areas, I am often asked for my opinion. My particular opinions are not relevant to the question, but I can say that most people believe that if they do not achieve the result they expected, there must be someone on the other side who is subject to being sued.

When I began to think about patients being stakeholders in our healthcare system I was reminded that when it comes to one’s personal health, it is “life at all cost.” With the cost of universal healthcare, if that ever happens, we may not be able to embrace that philosophy.

My question to the reader is “What would you have done, and why?” Even if Mr. X did not accurately present the situation or that with the passage of time I may have forgotten some of the finer points, the question still remains.

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